"Church-State agreements have been the roadmap to religious freedom in Spain."The United States has been protecting religious freedom for 25 yearsU.S. Supreme Court issues opinion in favor of employee religious freedomThose who are fond of the history of Church-State relations will remember that with Constantine the Great a phenomenon known as Caesaropapism took place. Caesaropapism consisted in the intervention of the secular political authority in spiritual matters, appointing and deposing bishops, convening councils and faithfully watching over orthodoxy. Charlemagne was also a clear exponent of this imperial policy, which resurfaced after the Protestant Reformation in the European Catholic kingdoms under the name of "royalism".
Centuries have passed, but Caesaropapism remains a temptation to which one can easily succumb. Even in religiously plural societies. And the Spanish Constitutional Court is not immune to this temptation: in fact, it has fallen into it in its recent ruling of November 4. Let us examine the case and the curious reasoning of the high court.
The case of Tenerife
But first, a parenthesis to give perspective to the subject. Until last November 4, the Constitutional Court held that the non-confessionality required by Article 16.3 of the Constitution meant proscribing any confusion between religious and state functions. The State is thus incompetent in religious matters and therefore, by way of example, it cannot decide what things are taught in religion classes in public schools (this is decided by the religious denominations that have signed agreements) or what teachers teach (these are also proposed by these denominations). This State, incompetent in religious matters, is obliged to remain neutral in this matter and to respect the autonomy of religious denominations in their own affairs. This neutrality and this autonomy are a guarantee of the religious freedom of the citizens, believers or non-believers, and of the communities, religious or not, in which they are integrated.
Well: the sentence of November 4 brings its cause from the following matter. Doña María Teresita Laborda Sanz wants to become a member of the Pontifical, Real y Venerable Esclavitud del Santísimo Cristo de La Laguna (Royal and Venerable Slavery of the Holy Christ of La Laguna) (Tenerife), a canon law association whose origins date back to the 17th century. The basic problem for its membership is that according to its statutes the association only admits men. The applicant wants this to change, for which reason she is going to the Spanish courts asking them to declare the nullity of this statutory impediment as a violation of equality and the right of association.
Both the court of first instance and the Provincial Court understood that the statutes were null and void and that, therefore, the obstacle had to be removed in order to give effect to the wishes of Mrs. Maria Teresita. However, the canonical association appealed to the Supreme Court, which ruled in its favor. And it does it for a simple reason: the associative autonomy (to admit or not according to its own norms) is something normal and, if they do not admit you in an association, then you mount another...
Fundamental rights
An obstacle to the fundamental rights of the potential member can only be considered when the association, de facto or de jure, occupies a dominant position in the economic, cultural, social or professional field, in such a way that membership or exclusion would entail a significant prejudice for the individual concerned. That is to say, by comparison: there is an obstacle to the rights of Mrs. María Teresita if she wanted, let us say for example, to participate in poetry contests, but to do so she had to belong to the only Spanish association of poets that organizes poetry contests, and this association only admitted men.
For the time being, let those who have managed to patiently read this far remain with the idea that the "dominant position" is in the "economic, cultural, social or professional field" and that membership or exclusion must entail a "significant detriment".
Let us return to the facts. Faced with the setback suffered at the Supreme Court, the protagonist of the case turns to the Constitutional Court. The Constitutional Court ruled that the appellant's right to non-discrimination on the basis of gender and her right of association had been violated.
The "woke" influence
How did this result, contrary to that reached by the Supreme Court, come about? Simple: the critical gender theory (an aspect of "wokism") that presides over the legal thinking of a significant part of the members of the Constitutional Court foreshadowed the outcome. It is true that on many occasions the first thing that moves the judge (or the judge) is a hunch, the result he or she intends to achieve: "here we must give the reason to Mrs. Maria Teresita yes, or yes". And then a whole complex legal reasoning is constructed to support the hunch. The problem is when this legal reasoning is incorrect. And that is precisely what happens in this case.
Why? Because when it comes to analyzing the dominant position of the association that hinders the rights of a person, let us remember that the State, through its judicial bodies, can enter without problem in the economic, cultural, social or professional field, but not in the religious field, because there the State is incompetent, it is neutral, it respects the autonomy of religious groups. And what does the Constitutional Court do then? Very simple: it enters the religious field, which was forbidden to it, through the cultural field.
In the words of the sentence "Devotional acts and acts of worship (...) are "cultic" acts (...) But the fact that they are acts of worship does not exclude that these acts may also have a social or cultural projection (...) consequently, the associations that organize and participate in these public and festive manifestations of faith may also have a dominant or privileged position depending on the social and cultural relevance that these manifestations acquire". In short: the accessory (the cultural) becomes the principal in order to impose a partisan vision on the principal (the religious).
Wishes must be rights
But that's not the end of the story: what evidence do we have of significant injury? It is assumed that such prejudice may have occurred in two areas. First, the appellant's religiosity: can the Constitutional Court measure this? I am afraid not. The religious freedom of Mrs. María Teresita? Well, she has not been prevented from exercising it, within the limits of respect for the rights of others (specifically, those of the members of the canonical association under discussion). Economy, social consideration, employment status? There is no record in this regard. And yet, the idea that, in the opinion of the Constitutional Court, there has been a prejudice consisting in the fact that the appellant has simply not been able to do what she wanted: expressive individualism to power, inside or outside the Church, beats in the background.
In quick conclusion: in order to win the equality crusade proposed by a sector of the Constitutional Court, the neutrality of the State, the autonomy of religious groups and a peculiar form of caesaropapism have been suppressed. The mess is only comparable to a Judgment of the Constitutional Court of Colombia (I could never imagine that it would come to that here, but imagination always falls short) of September 23, 2013 in which the Catholic Church is forced (!!) to readmit a nun in the Monastery after two years of exclaustration.
But that is not the end of the story. As will be recalled, Judge María Luisa Balaguer Callejón, in Ruling 44/2023, of May 9, 2023 on abortion, allowed herself to give a little lesson in Catholic theology on retarded animation, etc. In this sentence she goes back on the attack -save the expression- imparting some "useful advice" to religious groups: "although it is not the business of the State to modify religious traditions, the right of religious freedom must encompass the right of internal dissidents, including women, to present alternative points of view within religious associations".
Okay, but what does this have to do with the case? And having exercised this right of internal dissidents, can't these religious associations also kindly show dissidents the door, as a political party would do to a dissident who proposes to dissolve the party or merge with the opposing party? Well, no. Rather, it seems that Balaguer Callejón is advising religious groups, if they want to get along with the Court, to be nice, turn on their smartphone flashlights and sing John Lennon's "Imagine" in chorus.
