Spain

"Church-State agreements have been the roadmap to religious freedom in Spain."

Ricardo Garciahas granted an interview to Omnes in which he analyzes the validity and scope of the agreements between the Holy See and the Spanish state, which he described as "exemplary and fully up to date".

Maria José Atienza-May 17, 2021-Reading time: 5 minutes
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Photo: Christopher Czermak/ Unsplash

A few days ago the Faculty of Canon Law of the Catholic University of Valencia (UCV) held a conference on the Church-State Agreements with the participation of Jaime Rossell, professor at the University of Extremadura, Ricardo García, professor at the Autonomous University of Madrid, Judge Francisco de Asís Silla, head of Instruction Court number 3 and professor at the UCV, and Carlos López Segovia, priest and vice-secretary for General Affairs of the Spanish Episcopal Conference.

On this occasion, the jurist Ricardo Garciahas granted an interview to Omnes to explain the nature, history and role of the agreements between the Spanish state and the Holy See in our society.

Do you think that in Spain the dimension of Church-State agreements is well known?

I would say that, on occasions, from a legal point of view, the interpretation of some people, especially in politics, of the agreements of the Holy See with the Spanish state is not correct. We must remember this: the Holy See is an international entity, recognized by international law that has treaties with the 92% of countries recognized by the United Nations, such as Spain and also has international observers in agreements, for example, in the KAICIID. In this sense, the legal character of international law of the Holy See is more than known by the Spanish state.

It is worth recalling the role played not only by the Holy See at the international level, but also by the Bishops' Conference on this path to religious freedom.

Ricardo García.Professor of the Universidad Autónoma de Madrid

Can these agreements be considered a privilege of the Catholic Church in a state where there is religious freedom?

I believe that we must remember the process of this agreement and keep in mind that the agreements with the Holy See are the ones that facilitate the transition to religious freedom in this country.

When we speak of the agreements with the Holy See we speak of the agreements of 1979, specifically of January 3 of that year; but we cannot forget the path of the change from dictatorship to religious freedom or, in other words, the abandonment of a state Catholic confessionalism, which even the Catholic Church did not like. It is worth remembering the role played not only by the Holy See at the international level, but also by the Episcopal Conference on this path to religious freedom.

The first religious freedom law was passed in 1967. In that case it was a law "of mere tolerance", which established, for example, that someone who had been a Catholic priest could not be a minister of worship of another confession and in which the existence of other religions other than those of the Church was simply tolerated.

In 1976 the framework agreement was signed, which seems to be often forgotten, in which the Church renounced the "privilege of jurisdiction" and clergymen and bishops became subject to the civil authorities. And the Spanish State, for its part, renounced the "right of presentation".

These bases of religious freedom contained in this agreement were established two years later, in our Constitution of December 6, 1978, which establishes the principle of religious freedom, the principle of positive secularism, the principle of equality and also a basic one: the principle of cooperation established in article 16.3, which states that "the public authorities will take into account the religious beliefs of Spanish society and will maintain the consequent relations of cooperation with the Catholic Church and other denominations".

The mention of the Catholic Church is not gratuitous, since it is not in vain that the Church is the only non-profit entity expressly mentioned in the 1978 Constitution. As a result of this constitutional article and the historical tradition and roots of the Catholic Church in Spain and its activities in various fields, collaboration agreements have been signed. These agreements make it possible to replace the 1953 concordat with different collaboration agreements on specific matters: legal, economic, cultural, etc. In short, the agreements make it possible to establish the rules of the game.

The agreements between the Holy See and Spain have served as a guide in Latin American countries or in Eastern European nations after the fall of the Berlin Wall.

Ricardo García. Professor of the Universidad Autónoma de Madrid

Later, in 1992, collaboration agreements were signed with other religious entities with notorious roots in our country: Jewish, Muslim and Evangelical. The date was not chosen at random, since it was the 500th anniversary of the expulsion of non-Catholics from Spain. The particularity is that only the Catholic Church has a state as such. The agreements with the rest of confessions are not taken between two states but they are laws approved in the Parliament with the character of a pact. These agreements are the ones that make up our current system, which is outstanding and valued throughout the world and has served as a guide in Latin American countries or to establish religious freedom, for example, in the nations of Eastern Europe after the fall of the Berlin Wall.

So, when some politicians talk about repealing treaties with the Catholic Church, is it little more than a toast to the sun?

It is true that there are political parties that, in their electoral programs, have called for the repeal or "non-application" of the 1979 agreements. But this cannot be said lightly. Let me explain: to repeal an international agreement we have to resort to the Law of Treaties, which establishes the need for agreement between the parties in order to repeal it.

A nation cannot unilaterally break such a treaty. It is required, in its case, the denunciation and negotiation of that treaty. Are treaties irremovable? No, in fact, in the case of the Holy See with Spain, the treaty on economic matters has been modified. Something that was done through the procedure of "exchange of notes": The Spanish state sent a note to the Holy See and the Holy See responded with another note and the agreement between both parties modified some points of the agreement in this matter.  

Some say that Spanish society has changed and is not the same as it was four decades ago.

My opinion is that these agreements are still in full force and are in line with the Spanish reality and legality. In fact, when the Constitutional Court or the Supreme Court, for example, have faced any issue related to these agreements with the Holy See, their solution has been based on the application of the Law. An example is the recurring issue of the payment of the IBI for temples of worship, whose response is based on the Law of Patronage, not on an alleged privilege of the Church.

Everyone has the right to live according to his or her beliefs, regardless of the confession he or she may belong to.

Ricardo García. Professor of the Universidad Autónoma de Madrid

I like to point out that the agreements of the Holy See with the Spanish state refer to the recognition of a reality: in Spain, 65-70 % of the population declares itself Catholic. The agreement, therefore, obeys to adopt a legal framework so that this religious freedom can be carried out. When we speak of the right to religious freedom, I usually recall the aspects of the definition of this fundamental right made by the United Nations: first, we speak of the right to have certain beliefs, which are mine and which refer to my faith and form part of my free development of my personality; secondly, there is the feeling of belonging to a community, certain religious acts are communitarian by definition. And, finally, an area that is part of the right of personal, free, serious and responsible self-determination, which we can understand as way of lifethe way of life. The right that every person has to live according to his beliefs, regardless of the confession he may belong to.

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