Spain. Javier Martínez-Torrón Professor of Law at Complutense University, Madrid; Doctor utroque iure (of Law and of Canon Law)

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1 Spain by Javier Martínez-Torrón Professor of Law at Complutense University, Madrid; Doctor utroque iure (of Law and of Canon Law) This monograph has been reviewed by the Author and is up-to-date as of January Spain 1

2 Published by: Kluwer Law International B.V. PO Box AH Alphen aan den Rijn The Netherlands Website: lrus.wolterskluwer.com Sold and distributed in North, Central and South America by: Wolters Kluwer Legal & Regulatory U.S McKinney Circle Frederick, MD United States of America Sold and distributed in all other countries by: Air Business Subscriptions Rockwood House Haywards Heath West Sussex RH16 3DH United Kingdom The monograph Spain is an integral part of Religion in the International Encyclopaedia of Laws series. Printed on acid-free paper. ISBN Religion was first published in Martínez-Torrón, Javier. Spain. In International Encyclopaedia of Laws: Religion, edited by Rik Torfs. Alphen aan den Rijn, NL: Kluwer Law International, This title is available on , Kluwer Law International BV, The Netherlands All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without written permission from the publisher. Permission to use this content must be obtained from the copyright owner. More information can be found at: lrus.wolterskluwer.com/policies/permissions-reprints-and-licensing Printed in the United Kingdom. 2 Spain

3 The Author Javier Martínez-Torrón is Professor of Law at Complutense University (Madrid) and doctor utroque iure (of Law and of Canon Law). Born in 1955, he studied Law and Canon Law at the Universities of Seville, Granada and Navarra. He joined the Law School of Complutense University in 1984 as associate professor. He obtained his first chair as catedrático at the University of Granada, in 1993, where he was director of the area of Law and Religion ( ) and founded the seminar of comparative law in In 2000, he returned to Complutense University, where he has been director of the Department of Law and Religion ( ). He has taught, lectured or been visiting scholar at more than eighty universities of the five continents, among them Cambridge, Oxford, Harvard, Chicago, Berkeley, Columbia, Stanford, Ottawa, Freiburg (Germany), Turin, UNAM (National Autonomous University of Mexico), Haifa, and Catholic University of Chile. Since 2001, he has been teaching Comparative Law at the Summer Law Courses of Saint Louis University (Madrid campus). He is Vice-President of the Department of Canon Law and Church-State Relations of the Spanish Royal Academy of Jurisprudence and Legislation (1994). He has been a member of the Advisory Commission on Religious Freedom in the Spanish Ministry of Justice ( ) and of the OSCE/ODIHR Advisory Council on Freedom of Religion of Belief ( ). He was a member of the founding directive board of the first Spanish legal periodical specifically focused on law and religion studies (Anuario de Derecho Eclesiástico del Estado, 1985). He is the founder and co-editor of the Revista General de Derecho Canónico y Derecho Eclesiástico del Estado (2003), the first electronic legal periodical in Spain specialized on law and religions issues and canon law. He is also a member of the editorial boards of the Ecclesiastical Law Journal (2006) and the Oxford Journal of Law and Religion (2011), as well as of the International Advisory Board of the Revista Latinoamericana de Derecho y Religión (Chile, 2015). He is the author of numerous books and articles, published in 23 countries 22 books as author or editor and more than 120 essays in legal periodicals or book chapters. His Spain 3

4 The Author writings have been published in Spanish, English, Italian, French, Russian, Polish, Lithuanian, Slovakian, Turkish, Indonesian, Chinese, Vietnamese and Catalan. His research is characterized by a predominant interest in comparative and international law issues relating to the treatment of freedom of religion and belief, and to the evolution of Western legal traditions. In 1998 he received the Arturo Carlo Jemolo Award (University of Turin) for his book Le obiezioni di coscienza. Profili di diritto comparato (co-authored with Rafael Navarro-Valls, 1995). His other books include: Separatismo y cooperación en los acuerdos del Estado con las minorías religiosas (1994); Anglo-American Law and Canon Law. Canonical Roots of the Common Law Tradition (1998); Religión, derecho y sociedad (1999); Conflictos entre conciencia y ley. Las objeciones de conciencia, with Rafael Navarro-Valls (2nd ed., 2012); Tensiones entre libertad de expresión y libertad religiosa (editor with Santiago Cañamares, 2014); Religion and the Secular State (editor with W. Cole Durham Jr, 2015); and Great Christian Jurists in Spanish History (editor with Rafael Domingo, forthcoming in April 2018). 4 Spain

5 The Author 3 List of Abbreviations 13 Preface 15 General Introduction General Background of the Country 17 I. Basic Information 17 II. Political and Legal Structure Social Facts about Religion Historical Background: Religion in the History of Spain 23 I. First to Fifteenth Centuries 23 II. Fifteenth to Twentieth Centuries 25 III. From the Second Republic to General Franco s Regime 28 Part I. Legal Framework and Sources 31 Chapter 1. Constitutional Position of Religion 31 Chapter 2. Other Legislations with Regard to Religion The Organic Law on Religious Freedom Agreements with the Holy See (the Concordat) Cooperation Agreements with Other Religious Communities Other Laws and Regulations 42 Chapter 3. Typology of the System Religious Freedom 44 Spain 5

6 2. Equality State Neutrality State Cooperation with Religion Bilateral Sources of Law Case Law of the Constitutional Court with Respect to the Informing Principles 49 Part II. Religious Freedom in General 53 Chapter 1. Individual Religious Freedom Normative Framework Protected Aspects of Religious Freedom 55 I. Internal and External Dimension of Religious Freedom 55 II. Freedom to Choose 56 III. Freedom to Manifest or Not to Manifest 57 IV. Freedom of Worship 58 V. Right to Religious Assistance 60 VI. Freedom of Teaching 60 VII. Right to Non-discrimination 61 VIII. Freedom of Conscience 62 IX. Compliance with Religious Dietary Rules Judicial Protection of Religious Freedom Protection of Religious Freedom by Criminal Law Limitations on Religious Freedom Parental Custody and the Religious Freedom of Minors 69 Chapter 2. Freedom of Conscience and Legal Obligations: Conscientious Objections Concept of Conscientious Objection Some Basic Criteria for the Legal Analysis of Conscientious Objections The General Position of the Constitutional Court 76 6 Spain

7 4. Conscientious Objection to Military Service Conscientious Objection to Abortion Conscientious Objections of Pharmacists Conscientious Objection to Medical Treatments Conscientious Objection to Educational Contents or Practices 81 I. School Activities and Religious Observance of Holy Days 81 II. Freedom of Conscience and Homeschooling 82 III. Objection to Specific School Subjects 83 IV. The Case of Conscientious Objection to Education for Citizenship Freedom of Conscience and Religious Symbols 88 I. The Use of Personal Religious Symbols in the School Environment 89 II. The Use of Personal Religious Symbols in Public Spaces 90 III. The Use of Personal Religious Symbols at Work 93 IV. Secular Objections to the Use of Religious Symbols in Public Institutions Conscientious Objections in Labour Relations 97 I. European and Spanish Normative Framework 97 II. The Restrictive Approach of 1992 Agreements to the Observance of Sabbath III. The Case Law on Sabbath Rest IV. Other Claims of Indirect Religious Discrimination in Employment Conscientious Objection in the Public Service 101 I. Conscientious Objection to Promissory Oaths 101 II. Conscientious Objection to Be Part of a Jury 103 III. Conscientious Objection to Be Part of a Polling Station 105 IV. Conscientious Objection to Perform a Ceremony of Same-Sex Marriage 106 Chapter 3. Collective Religious Freedom 108 Chapter 4. Organizational Religious Freedom 113 Spain 7

8 1. Legal Personality, Religious Freedom and State Cooperation with Religious Communities The Registry of Religious Entities 116 I. Basic Notions and Structure 116 II. Process and Effects of Registration 117 III. The RER and the Legal Concept of Religion 119 IV. Registration of Internal Associations and Foundations of Religious Communities The Advisory Commission on Religious Freedom 123 Part III. Legal Status of Religious Communities 127 Chapter 1. Formal Status of Religious Communities 127 Chapter 2. Autonomy of Religious Communities 132 Chapter 3. Places of Worship and Meeting A Broad Concept of Place of Worship The Inviolability of Places of Worship Places of Worship and Urban Planning Privileges Concerning Expropriation, Demolition, Immunity from Seizure and Taxes 139 Chapter 4. Fundamental Rights and Religious Communities The Protection of Fundamental Rights of Religious Communities The Protection of Fundamental Rights by Religious Communities 141 Chapter 5. Contractual Religious Freedom The Concordat with the Catholic Church Cooperation Agreements with Other Religious Communities 148 Chapter 6. Religious Assistance in Public Institutions Spain

9 Part IV. International, Transnational, Regional Effects on Religious Communities 157 Chapter 1. International Law Effects on Religious Communities 157 Chapter 2. Transnational Law Effects on Religious Communities 162 Chapter 3. Regional Law Effects on Religious Communities 164 Part V. Religion and Politics 165 Chapter 1. Religion Influence in Politics 165 Chapter 2. Political Influence in Religion 168 Chapter 3. Interaction Between Religion and State on a Political and Legal Level 170 Part VI. Labour Law Within Religious Communities 173 Chapter 1. Scope of Application of Labour Law 173 Chapter 2. Religious Ministers and Labour Law 174 Chapter 3. Other Church Employees and Labour Law 177 Part VII. Religious Communities and Protections of the Individual 181 Chapter 1. Protection of Privacy 181 Chapter 2. Freedom to Marry 184 Chapter 3. Freedom of Expression 186 Chapter 4. Due Process Norms and Religious Groups 187 Chapter 5. Professional Secrecy 189 Chapter 6. Medical Deontology Conscientious Objection to Abortion Conscientious Objections of Pharmacists Conscientious Objection to Medical Treatments 195 Spain 9

10 I. The Law on the Patient s Autonomy 195 II. Objection to Medical Treatment of Adults 196 III. Objection to Medical Treatment of Minors 197 IV. Objection to Medical Treatment and Criminal Liability 198 V. Objection to Medical Treatment and Reimbursement of Hospital Expenses 199 Chapter 7. Non-discrimination 201 Chapter 8. Penal Law and Religion 203 Part VIII. Church Financing 209 Chapter 1. Direct Financing of Religious Communities Direct Financing of the Catholic Church Direct Financing of Other Religious Communities 211 Chapter 2. Indirect Financing of Religious Communities Non-taxation and Tax Exemptions Tax-Deductible Donations Other Economic Contributions 217 Part IX. Education 219 Chapter 1. Religious Education in Public and Private Schools Teaching of Catholic Religion 221 I. The Normative Framework 221 II. The Case Law of the Constitutional Court 224 A. Courses on Catholic Religion 224 B. Religion Teachers Teaching of Religious Doctrines Other than Catholic The Possibility of Neutral Teaching on Religions and Beliefs Religious Symbols in Public Schools 229 Chapter 2. Religious Schools Spain

11 Part X. Matrimonial and Family Law 233 Chapter 1. Legal Position of Religious Marriage The Right to a Religious Marriage The Civil Effects of Catholic Marriages The Civil Effects of Religious Marriages Other than Catholic 241 Chapter 2. Legal Position of Religious Family Law 244 Part XI. Religion and Culture 247 Chapter 1. Religion and Art 247 Chapter 2. Religion and Media 250 Chapter 3. Religion and Civil Society 253 Chapter 4. Religion and Public Debate 254 Selected Bibliography 257 Index 271 Fake text 275 Spain 11

SPANISH REPORT TO THE SECOND EUROPEAN/AMERICAN CONFERENCE ON RELIGIOUS FREEDOM Trier, May 1999

CHURCH AUTONOMY AND RELIGIOUS LIBERTY IN SPAIN SPANISH REPORT TO THE SECOND EUROPEAN/AMERICAN CONFERENCE ON RELIGIOUS FREEDOM Trier, 28-29 May 1999 Javier Martínez-Torrón Professor of Law University of