THE SPANISH ANSWER TO RELIGIOUS INTOLERANCE

(FROM INSTITUTIONAL INTOLERANCE TO INSTITUTIONAL TOLERANCE)

Rosa María Martínez de Codes

Universidad Complutense de Madrid

ESPAÑA

The history of Spain over the last fifty years offers an interesting platform for reflection and analysis of the transition from institutional intolerance to institutional tolerance in religious matters.

In this presentation I would like to introduce, calmly and rationally, a number of elements of a historical, political and legal nature which explain the importance of the religious intolerance-tolerance binomial in the process of consolidating the Spanish democratic State.

You have heard on numerous occasions that without memory there is no future. The present lacks meaning if we are not able to reflect upon our past. Consequently, I thought it fitting in this presentation to recall the voice and words of those who led and made possible the religious transition in Spain.

Nowadays in democratic societies religious freedom is a right protected by legal guarantees. As a consequence, Church and State - religion and society - are distinguished from each other and interact on the basis of equality in law and freedom. This process started two hundred fifty years ago when Thomas Jefferson, one of the fathers of EE.UU. Declaration of Independence began to introduce new ideas into the Virginia Statute for Religious Freedom (PP 1)

He knew, at a very early stage of the history of thought and freedom, how to overcome religious intolerance in order to open the way for the idea of freedom: all men and women have equal rights and can freely exercise these. This is the direction in which western societies have gone since then.

However, some countries, mainly Spain, took a long time to discover religious freedom. If we look back at European history we should remember that the main Christian confessions of faith were once State religions and enjoyed a position of dominance over minorities who were, at best, tolerated. It is clear that those communities which have always been minorities under the domination of other Christian State churches would be the first to press for equal treatment. Large churches which for centuries have shared the common destiny of a nation would resist change for longer until they realized that a new chapter of history was unfolding. Legal changes often react late to sociological changes.

Spain has been a confessional country throughout its entire history as a nation. It should be pointed out that Spain was the first modern state in Europe, a phenomenon which came about at the end of the 15^th century and, as in the case of all European states, the Spanish state came to be within a context in which political and religious unity complemented each other.

The 1492 Conquest of Granada and the recapture of the entire country from Islam by the so-called Catholic Monarchs gave Christian Spain a political dimension which it had hitherto lacked. (PP2)

Religious unity meant the exclusion from the territory of the Christian kingdoms of Jews and Moors who had not converted to Catholicism. The new feature in the case of Spain was not the exclusion of the dissidents from the national territory - exclusions which, on the other hand, occurred throughout the length and breadth of Protestant and Catholic Europe - but rather the profound institutionalisation of the Catholic faith.

Under the Counterreformation, led by the Spanish monarchs, the quality of being Catholic (“Catholicness”) was defended as the true raison d’être of the State, until this became a fundamental feature of the national consciousness.

In the 19^th century and first half of the 20^th, Catholicism was formulated expressly or tacitly in all Constitutions which were enacted, with the sole exception of the Republican Constitution of 1931, which remained in force till the end of the Spanish Civil War.

The political leaders of the Republic, set up in 1931, introduced two major changes into the Spanish legal order when they sanctioned the Church-State separation and recognised freedom of conscience.

However, it should be pointed out that this separation, defended by the parliamentary representatives in the Spanish Cortes, identified itself with the secularism of the French law of 1905 which stipulated that the Republic neither recognised nor subsidised any religious group i.e. the State did not wish to maintain any type of relationship with any confession of faith, and stated that religious events were no longer public ones. Religious belief therefore was reduced to a problem of individual conscience and a merely private question.

The President of the Republic, Manuel Azaña, defined this clearly in his speech before the Congress of Republican Action:

“The religious problem is not only a private one of the individual conscience but also a political one, and here we are talking as politicians or legislators, not as believers. Consequently, what is usually termed a religious problem comes down to a problem of government i.e. the attitude of the State towards a certain number of citizens who wear full-length tunics, and of State-level relations with a foreign power which is Roman Catholic”. (PP3)

Consequently religious confessions were subjected to a special and very restrictive law which limited public manifestations of prayer, incapacitated them from acquiring and maintaining property, except property destined for private purposes, and prohibited them from working in industry, commerce or education.

Once again in the history of Spain the myth of clericalism-anticlericalism reappeared: two totally different views of Spain, absolutely incompatible one with the other. Both defined themselves by their respective political relations with religion and with their institutions. Half the Spanish population believed that the cancer which prevented us from progressing at the rate of other European countries was the excessive influence of clerical powers. On the contrary, the other half believed that Catholicism, and therefore the Church, were their national heritage: “Spain could not cease to be Catholic without ceasing to be Spain.”

The Catholic Church appeared to millions of Spaniards to be the guarantee of authentic patriotism and of existing political realities, serving as a brake upon the censure of many others who considered the Catholic Church to be the party guilty of political, economic and social failures.

The Civil War, which started in 1936, had right from the start a fully religious feel in the consciousness of the majority of Spaniards. One major element of the Spanish people closely linked two sentiments - the religious and the patriotic - and this merging, visible in those who enlisted in the National Movement led by General Franco, ended by finally committing the Catholic hierarchy to the defence of the Church.

The “Collective Charter” which the Spanish Bishopric circulated in 1937, declaring that the fratricidal war was a “crusade” against the infidel and other enemies of the fatherland and western civilisation such as the communists, socialists, anarchists and liberals (ideas which have not lost their relevance today), dictated the action of the Catholic Church and linked it definitively to the political regime set up after the war.

Amongst the core principles which defined the Franco regime, we should mention the confessional nature of the State; the establishment of a legislation commonly agreed upon with the Vatican, and the subordination of the other - non-Catholic – confessions of faith to a system of tolerance with considerable restrictions. (PP4)

As a consequence of the Franco regime’s declarations of confession of faith, the Catholic Church received preferential treatment - visible not only in the way it disseminated its doctrine and its intensive religious instruction in schools - but also in the set of rights and powers the Catholic Church was granted by the State through commonly agreed regulations.

I would like to underline particularly the Corcordat signed with the Vatican in 1953, in which both parties quite naturally granted prerogatives to each other. On the part of the Catholic Church, the right of the Head of State to designate bishops was recognised; and on the part of the State, the Church was granted control over marriage, education and censorship, at the same time as taking over control of the clergy and worship in general.

The privileged legal position of the Catholic Church which I have described contrasted hugely with that of the rest of the confessions of faith in Spain. Protestants, evangelicals and Jews remained subordinated to a statute, figuring under article 6 of the Common Law of the Spanish people, which permitted private worship and at the same time prohibited external manifestations or religious proselytism:

Nobody may be hindered as a result of their religious beliefs or the private practice of their faith. No other ceremonies or external manifestations will be permitted other than those of the Catholic religion. (PP 5)

The interpretation of what should be understood as “the private exercise of prayer” was left to the discretion of government departments, generating an endless list of conflicts and economic sanctions over non-Catholic confessions of faith, as illustrated by the words of the Protestant pastor, Juan Luis Rodrigo Marín:

“The Common Law of the Spanish people, which came about around 1945, guaranteed that nobody could be hindered as a result of their religious beliefs. This was confusing as, depending on who was consulted this was open to different interpretations. The “private” concept was very elastic: it was either narrowed down or inflated. Thus, in some places it was not permitted to accompany a funeral hearse in a cortège, in keeping with our culture and customs… Fortunately not everyone thought that way. Some local authorities were more tolerant and made certain allowances. Very few.

A police provision authorised up to 20 people as the maximum number permitted to meet in a specific place. For more people a government permit was needed which, naturally, was not given to a religion or religious dissident.” (PP6)

When did the religious transition really begin in Spain? Two dates linked to another two important events have commonly been pointed out: the Constitution of 1978 and the 1980 Organic Law on Religious Freedom. Without doubt, both legal texts were decisive in the configuration of the democratic state and the eradication of religious intolerance in Spain.

Nevertheless, the battle for religious freedom in Spain was fought by the religious minorities who protested, denounced and reported to the foreign embassies on the discrimination the members of their churches were subjected to from the 1950s. The international press, echoing these complaints, denounced the situation of the Protestants, evangelicals and Jews in Spain for whom the principle of tolerance and the legislation in force was completely unsatisfactory. It was impossible for them to reduce the practice of their religion to private worship.

The pressure exerted from both inside the country and from abroad, along with the new political openness of the Franco regime, now interested in gaining international support and obtaining economic aid from the U.S. and Britain, gave impetus to a draft of the Statute for non-Catholics and their associations in Spain.

The man who, at that time, committed himself to defending the civil rights of minority confessions and was a leader in that field was the Minister of Foreign Affairs, Fernando María Castiella. His strength and tenacity in the drafting and later approval by parliament of what was termed the first law on religious freedom was recognised in January of 1965 by the then General Secretary of the Association Internationale pour la défense de la liberté religieuse (International Association for the Defence of Religious Freedom), Dr. Jean Nussbaum.

You have on the screen an unpublished document which I found only a few months ago in the Archive of the Academy of History in Madrid. (PP7)

Dr. Nussbaum wrote to Monsieur Castiella on the favourable impression that Franco’s New Year speech to the Nation had made on him and congratulated him on the influence the Statute would have for non-Catholics not only in Spain but in Europe and on the other side of the Atlantic, and expressly mentioned the presence in Spain of open-minded spirits prepared to fight for religious peace in the country. Nussbaum ended his letter by expressing his recognition of the admirable work undertaken by the Minister and attached a copy of the letter he directed to General Franco, the Spanish head of state.

The copy just quoted was also a finding. In it, its author highlights his delight and admiration for the work of Castiella who

“has painstakingly prepared a statute for the non-Catholics and which, as far as we have been able to ascertain, appears to fully satisfy all those who defend religious freedom… Your speech, General – continues the letter – impressed me deeply and for that reason I shall take the liberty of telling you that I shall follow your movements with the greatest interest, and it is my most fervent wish that you should succeed fully in the task you have taken upon yourself. I pray God bless the Spanish people, their illustrious Head of State and their Government. May your country find in religious peace the strength it needs to carry out the mission it has been called upon to accomplish”. (PP8)

It may be said that the religious transition in Spain in fact began by the beginnings of the recognition of religious freedom. Religious freedom under the Franco regime received a major stimulus from the new approaches propounded by the Vatican through the 2nd Vatican Council.

It is interesting to point out that the Declaration “Dignitatis Humanae” on Religious Freedom, made by the 2nd Vatican Council on 7th December, 1965 was, in itself, an event with far-reaching consequences, especially for countries which subjected non-Catholics to a very restrictive system of tolerance, as was the case of Spain.

Spanish Protestants and Jews received the Declaration in an extremely hopeful frame of mind, trusting that its progressive start up would bring the introduction of new criteria in the enforcement of a greater level of religious tolerance, therefore granting to its communities some basic rights.

In effect, the Declaration tackled the subject of religious freedom from a legal viewpoint, as announced in the subtitle, on the right of individuals and communities to social and civil freedom in religious matters i.e. the concept of religious freedom which is formulated around the fundamental idea of legal-civil autonomy. This is the field to which the subject of religious freedom belongs, according to the Vatican Council’s perspective. Religious freedom is not defined in relation to God but rather in relation to a civil institution, the State. Therefore, it must not be confused with autonomy in the moral sphere.

The key to interpretation of the text lies in the affirmation that religious freedom is a true right of individuals, founded on their human dignity, and which must be recognised as a civil right in society. Strictly speaking, it is the demand of a sphere of civil independence facing the coercive power of the State in order that

“...in religious matters nobody be forced to go against their conscience or be prevented from following it in private and public life, alone or associated with others, within suitable limits”.

(PP9)

It was also very promising for non-Catholic Christian confessions that the Declaration not only concerned itself with individual liberty but also with the right to religious association in Spain; the right to freedom of propaganda; and religious rights of a family nature. This also facilitated a satisfactory approach towards ecumenical manifestations by the World Council of Churches.

Summing up, the struggle for religious freedom, in which the religious minorities in Spain had become entrenched, received important backing with this Declaration, reinforcing their claims to the recognition of freedom of conscience under equal conditions for all.

The impact of the principles contained in this Declaration on Spanish State Law was immense. Public powers were obligated to tailor their legislation to the authority of the Catholic Church. For both the Government and the Spanish Episcopacy this streamlining was delicate and complex. It meant the transfer over to the State’s civil legal system of the notion of civil tolerance for religious freedom, maintaining Catholicism as the key religion. It was not possible to combine the private exercise of worship and the prohibition of ceremonies and external manifestations with religious freedom, as had been defined by the Vatican Council.

Consequently, article 6-2 of the Common Law of the Spanish people was reformed, expressing clearly that the State took on board the protection of religious freedom, the guarantee of which would be through effective legal protection:

“The professing and practice of the Catholic religion, which is the religion of the Spanish State, shall enjoy official protection. The State shall take upon itself the protection of religious freedom which shall be guaranteed by effective legal protection. This protection, in turn, shall safeguard morality and public order.” (PP10)

This reform brought the subsequent enactment of the so-called 1st Law on Religious Freedom of 28^th June 1967 along the lines that the Minster Castiella had initiated years before. Experts agree in stating that this Law represented a major step forward in the protection of freedom of non-Catholic confessions and although imperfect, enabled these groups to come out of virtual hiding and function publicly.

I say imperfect because in practice the State’s unaltered Catholic confession of faith set down limits, controls and restrictions on non-Catholic religious associations.

Up until the proclamation of the 1978 Constitution, the Catholic nature of the Spanish State gave the Catholic Church privileged treatment in accordance with the 1953 Concordat in force until that time.

Since 1978, that is for the last almost thirty years, Spain has evolved from a Catholic religious system to a pluralist democratic one designed by the 1978 Constitution.

If the Constitution currently in force may be considered the symbol of democracy and of what resolves the confrontation between two ways of conceiving Spain, from the perspective of intolerance-tolerance dialectics the Constitution is the symbol of the implementation of a model of religious freedom and of overcoming the confrontations between anticlerical positions and acutely confessional ones.

This Constitution defines the State as non-confessional, within a context implying a positive definition: as required by the principle of equality and fair treatment, regardless of religious beliefs, the State does not differentiate between believers and non-believers; in the eyes of the State, everyone is equal and equally free. (PP 11)

The right to equality and religious freedom, originally conceived of as individual rights for all citizens, also applies to the religions or communities to which these individuals belong, in order to achieve the communal fulfilment of their religious objectives, without the need for previous authorization or registration in any public registry.

At the same time, and also mandated by the Constitution, the State is obligated, as far as the religious beliefs of Spanish society demand, to maintain relations of cooperation with the different religious denominations for the purpose of making its citizens’ right to religious freedom something real and effective. This may be achieved in different ways with the denominations listed in the Registry of Religious Organizations.

Following this constitutional mandate, a new law on Religious Freedom was passed on 5th July 1980. In contrast to the 1967 law, this new law was the first approved by a Congress elected democratically, unanimously and with the participation of all the religious groups registered in the Ministry of Justice.

The Executive Secretary of the Spanish Commission for Evangelical Defence, José Cardona, then affirmed:

“We stand before a Law on Religious Freedom without precedent which is befits a country deeply rooted in western democracy. The State shall administer the right of religious freedom without unjustly favouring one party or religious group. Rather in balanced and measured composition of its rights, it shall respect and promote civic confessional peace in Spain”. (PP12)

In compliance with the Organic Law on Religious Freedom, the State may maintain institutionalized relations of cooperation with any other religious communities other than the Catholic Church, by entering into Agreements or Covenants of Cooperation, once these religious denominations, duly entered in the Registry of Religious Organizations, have gained a firm foothold in Spanish society.

However, these agreements have not been signed with the churches, confessions and religious communities but rather with the federations associated with these churches, confessions and religious communities, grouped together around a belief that has been declared to be clearly deep-rooted.

This is precisely the peculiarity and novelty of the Spanish situation.

In effect, there are currently four confessions of faith that have signed these cooperation agreements: the Catholic Church, which currently has several agreements in force with the Spanish State; the Federation of Evangelical Religious Entities of Spain; the Federation of Israeli Communities of Spain; and the Spanish Islamic Commission. (PP13)

The result of this integrating effort on the part of Protestants, Jews and Muslims has enabled the State to extend the benefits of the Cooperation Agreements to many Churches and communities that, had they acted alone, would have had difficulties in obtaining recognition of their firm foothold within society and, consequently, the signing of the respective agreements with their representatives would also have been difficult.

In fact the Agreement is conditioned by the existence of the Federation. The State reaches an agreement with the Federation of Churches or Communities with a particular religious belief - not with each particular church or community. Therefore, if the church or community is not a member, or has withdrawn, or has been excluded from the Federation, it is automatically excluded from the Agreement. This gives the Federation broad authority and discretion in the future evolution of Agreements, since they act as a gateway for those religious groups who request the agreed on benefits.

In the same way, the associated religious organizations wishing to obtain legal and civil recognition, and which therefore decide to register, must present proof of their religious objectives; this proof may be obtained from the highest organizational authority in Spain of the respective churches and /or federations.

With respect to the contents of the 1992 Agreements, these are very similar texts, regulating such important aspects as: the statute of ministers and legal protection for places of worship; evangelical, Muslim or Jewish religious teaching in educational centres; the tax system to be applied to the assets and activities of these religions; religious services in public centres; and the maintenance and promotion of Islamic or Jewish historical and artistic heritage, etc.

On the other hand, the Agreements are also intended to satisfy the specific requirements of each religion in harmony with their identities. For this reason certain sensitive issues, such as legal and civil recognition of marriages held in religious ceremonies; the recognition of religious holidays; and even compliance with religious requirements in the preparation of certain foods have all been taken into account.

I would like to raise a final question: what sort of rating should be given to the Spanish system? Can it be considered an optimal model of reference or, on the other hand, does the system cause great difficulties?

Obviously, every system of Agreements requires negotiation between the parties and the most appropriate level of consensus is not always achieved. In the case of Spain, consensus among the parties was achieved and up till now this has brought the development of specific legislation making the exercise of the right to religious freedom real and truly effective for the organizations which participate.

However, it would be appropriate to take a critical look at this system, pointing out weak aspects. From the point of view of the State, the system implies an institutionalized view. Once the Cooperation Agreement has been signed, it would be difficult to renounce it and take away from the churches or communities those rights granted, even though there might be good reasons for doing so.

On the other hand the system could endanger the principle of equality among religious groups, since only federated groups benefit from the Agreements.

Nevertheless, the final analysis is positive. A quick look backwards enables us to understand that these Agreements close the book on the pages of intolerance recorded in our history. Denominations that suffered persecution have now recovered the freedom and equality they had previously lost.