INTRODUCTION
Immigration has played a significant role in the Spanish experience of the use of religious symbols. There have been a number of conflicts caused by the desire of the immigrants to exercise their religious freedom at the same level as the majority traditions of the country, and these have often involved the use of distinctive symbols to show religious allegiance. Alongside the efforts of different Spanish governments to create an atmosphere of peaceful co-existence, the legal system has had to play a decisive role in strengthening the structures of a new social order in which religious pluralism plays a major part. Solutions to these conflicts involve considering the fundamental rights and duties recognised by the Spanish Constitution and developments intended to promote a better state of integration. Religious freedom is one of the principles enshrined in the constitution and reflects the set of values on which co-existence in Spain is based.Footnote 2
Regardless of this approach, the relevant question is whether these situations can be adequately solved by a general regulation enacted by the legislature, or whether the best way to tackle them is through case-law analysis. In this article, I shall try to give a response to this question.
NORMATIVE FRAMEWORK
Article 16 of the Spanish Constitution recognises the freedom of all citizens to exercise their religion without any limitations beyond those required for the maintenance of public order.Footnote 3 This general provision was developed through the provisions embodied in the Organic Law on Religious Freedom.Footnote 4 Article 2 of this law specifies the different aspects that give shape to the content of religious liberty, making a general reference to the freedom of every individual to profess the religious beliefs of their own choice, or not to profess any; to change or abandon their own religion; freely to manifest their own religious beliefs or lack thereof and to abstain from declaring them.Footnote 5
In my view, it seems clear that the ‘free expression of beliefs’ refers to any external manifestation through which the individual shows allegiance to a certain creed. This is a direct consequence of the expansive force that follows the profession of faith, as beliefs are not intended to be exercised exclusively within the private sphere.
This position encouraged the Constitutional Court to state, in a 2004 decision, that it is possible to appreciate an external dimension of religious freedom, expressed in the exercising, free from any coercion, of those activities that are expressions of an individual's religion.Footnote 6 According to this judicial pronouncement, it is possible to maintain that religious freedom can be exercised both through verbal language and through the universal language of signs, including the use of religious symbols.Footnote 7
Setting this on one side and returning to the normative framework of religious freedom in Spanish law, a reference to its limits should be made. Article 16 of the Constitution declares that religious freedom is exclusively subject to the restrictions required by the maintenance of public order.
At this point it should be pointed out that Article 10.2 of the ConstitutionFootnote 8 links the interpretation of the basic rights and liberties that are enshrined by this fundamental law, with the dispositions of the Universal Declaration of Human Rights and the international treaties and agreements on those matters ratified by Spain. Among these treaties, due to its binding nature, the European Convention on Human Rights has particular relevance.Footnote 9 Article 9, after proclaiming the possibilities of exercising religious freedom, refers to its limits, identifying these as the protection of public safety, public order, health or morals, and the rights and freedoms of others. That is why the Spanish legislature had to develop the limits to the religious freedom established in the Constitution in a similar manner.Footnote 10 Article 3 of the 5/1980 Organic Law, referring to the limits on religious freedom, states:
the rights deriving from the freedom of worship and religion may not be exercised to the detriment of the rights of others to practise their public freedoms and fundamental rights or of public safety, health and morality, elements which constitute the order ensured under the rule of Law in democratic societies.
In order to establish how these limits should be applied to conflicts related to religious symbols, two elements of the doctrine stated by the Constitutional Court in several decisions regarding religious freedom should be taken into consideration. First, the Court has emphasised that these conflicts should be decided through the use of a proportionality rule, which involves taking into account the specific circumstances of each conflictual situation. Second, every limitation on fundamental freedoms that is necessary to protect the prevailing fundamental rightFootnote 11 must produce the minimum possible damage.
Indeed, the application of the proportionality rule urges us to define precisely the boundaries of the rights and interests at stake. Furthermore, the factual circumstances of each individual case must be considered, with a view to determining whether the alleged practice is compulsory for the believer and whether it is aimed at satisfying a rule of a very religious nature. It is also necessary to determine whether religious freedom is genuinely threatened, or if such a threat is only virtual, fortuitous or hypothetical. As the Constitutional Court has declared, public order as a limit of the exercise of religious freedom may only be used in exceptional circumstances. Therefore, limitations cannot be regarded as preventive clauses, generally used to avoid possible risks, as this could clearly jeopardise the freedom of religion itself.Footnote 12
One of the most difficult points in relation to the proportionality rule is to find the balance between deciding which freedom is chosen to prevail among those in conflict ensuring that the essential content of the freedom called to yield is respected. In this context, the Spanish Supreme Court has held that, in order properly to decide the importance of each right in a conflictual situation, it should be borne in mind that the Constitution recognises religious freedom, alongside other rights and liberties, as a particularly protected right, only subject to the rights to life and to physical and moral integrity.Footnote 13 Bearing this in mind, it can be inferred that religious freedom has a decisive importance among the fundamental rights that are enshrined in the Constitution; consequently, it should enjoy particular protection when in conflict with other interests of constitutional value.
SPANISH JURISPRUDENCE ON RELIGIOUS SYMBOLS
I now turn to analysing a number of different disputes that have arisen in Spain in relation to the use of symbols of a religious nature and will discuss in detail several decisions adopted by the Spanish courts that deal with the use of religious symbols by individual citizens and the presence of religious symbols in the public sphere.
Cases related to the use of religious clothing
According to the Constitutional Court, religious freedom allows individuals to practice their religion free from any coercion on the part of public authorities or other private citizens.Footnote 14 At the same time, they must respect the limits established by the Spanish legislature. Moreover, religious equality requires that every citizen or group must be treated equally, especially by public authorities, and discriminations based on religious beliefs are prohibited. That principle is enshrined in Article 14 of the Constitution.Footnote 15 Both elements play a crucial role in solving conflicts related to the use of religious symbols based on personal beliefs.
At this point, the challenge is trying to make compatible the free exercise of religion with the appropriate degree of protection of the legal elements that integrate what is known as ‘public order’. As stated earlier, this is the only permissible restriction to the exercise of this right. In many of the cases related to the use of religious attire, the protection of the rights and freedom of others has been considered as a sufficient reason – within the framework of the public order protection – to restrict the exercise of religious freedom.
Accommodating the use of religious symbols
In Spain, several legal disputes concerning the use of religious clothing in the workplace have occurred. The conflict usually arises when employees ask for an accommodation of their religious beliefs in the workplace and employers consider that this requirement interferes with their power to conduct their own business. In this respect, Spain is not very different from other Western societies.
Before focussing on the Spanish experience, some preliminary considerations should be pointed out. It is interesting to emphasise that the Constitutional Court jurisprudence has stated that, in the workplace, employees are not deprived from enjoying their fundamental rights as recognised by the Constitution, for neither is corporate business a separate world from the rest of society, nor does the freedom of enterprise guaranteed in Article 38 of the Constitution allow any transitory and unwarranted limitation on the worker's fundamental rights and liberties.Footnote 16 The question, therefore, consists of the specific harmonisation of these two dimensions: on the one hand, the entitlement of workers to express their religious beliefs in the workplace and, on the other, the entrepreneur's freedom of enterprise that allows them to run their business their own way.
Arguably the most well-known case was decided by the Superior Court of Justice of Baleares.Footnote 17 In order to satisfy his religious beliefs, a driver of the Municipal Company of Public Transportation of Palma de Mallorca started covering his head with a cap while at work. However, Article 26 of the Worker's Collective Agreement did not expressly allow this attire. The worker, who was a member of the Jewish community of Mallorca, defended his right to use such a cap on religious grounds, since his religion considers this is a symbol of respect for their faith. The court considered that, although the employer, in the absence of collective or individual agreement, is perfectly competent to decide on the uniform that employees must wear, this competence should be exercised with respect for the dignity and honour of the worker and his or her fundamental rights and public liberties as enshrined by the Constitution. Consequently, the employer's freedom to conduct his or her business is not absolute and must be restricted in cases of conflict with the worker's religious freedom.
Furthermore, the court noticed that these cases do not admit a general solution; on the contrary, they need a specific and detailed analysis, in which all surrounding circumstances must be taken into account. The court defended the application of the proportionality rule, because this mechanism allows a balance to be made between the beliefs of the employee and the legitimate interests of the employer. The court concluded that the driver should be permitted to wear the cap, after having taken the above circumstances into consideration. In order to support its final decision, the judicial body argued that the worker's practice did not involve any damage to the bus transportation company, since it was not proved that either the labour activity or the interests of the company had suffered in any way. According to the rule of proportionality, the driver's religious freedom had prevailed over the power of the employer to rule his or her business.
Rejecting the accommodation of religious symbols
In a case decided by the Superior Court of Justice of Madrid, the decision was very different. In this case, an employee of Almacenaje y Distribución S.A. (Aldeasa), refused to comply with the company's policy relating to workers' attire. The worker was a member of the Muslim community and was serving as a cashier at the duty-free shop in Barajas Airport. A few weeks after beginning employment, the company sent a letter to all the workers indicating that employees should wear the summer attire, consisting of a blue skirt above the knees, blouse and long-sleeved jacket. The cashier wrote a letter to the manager of the company, asking to be exempted from this and to be permitted to wear attire in accordance with her religious beliefs, which required long skirts. The request was rejected by the company, which emphasised that the internal rules of the company were applicable to all workers regardless of any other consideration, including religious beliefs.
Given the refusal of the company to accommodate her religious needs, the worker appealed this decision before the Spanish courts. The Superior Court of Justice, in its sentence of 27 October 1997, rejected her case, stating that, although the company should adapt its activity to the religious needs of its workers, the latter should behave in good faith. That is, when applying for a job, workers should indicate that they belong to a particular religious faith that makes certain requirements – including clothing obligations – of them. This condition of good faith would allow the company to weigh up whether the religious convictions of the applicant could be accommodated within the business framework.
From a critical standpoint, the reference contained in the sentence to good faith and contractual loyalty should be taken with caution because, according to the Constitution, no one can be obliged to declare his or her own beliefs.Footnote 18 Furthermore, good faith is not recognised as a valid limit of the exercise of religious freedom, although the abuse of exercising one's rights and freedoms is forbidden as a basic principle of law.
However, when a worker joins a company, he or she also assumes certain duties that are essential in order to achieve the legitimate targets of the company. Article 38 of the Constitution acknowledges the freedom of enterprise within a market economy,Footnote 19 by virtue of which the economic interests of the business are protected. That is why the rights and freedoms of the workers must be especially studied in the workplace, with consideration given to the commitments assumed when the job was accepted.
In this case, as opposed to the ‘good faith’ on which the Superior Court based its 1997 decision, a better solution would have been to carry out a balancing test, aimed at deciding whether or not the demands of the worker could be accommodated or whether they would represent an undue hardship on the employer.Footnote 20 If the latter, the accommodation of the worker's beliefs should be rejected.
Critical considerations
There are two main ways to address the controversial use of religious symbols: by enacting a general law or by referring them to the discretion of the judiciary. The first solution was adopted by the French National Assembly in 2004, passing an Act aimed to protect the laicité through the prohibition of all ‘strong’ religious symbols at state schools.Footnote 21 The second solution enables the judiciary to solve these conflicts on an individual basis. In my opinion, the latter is a more adequate method, because the best solution can only be decided after a thorough evaluation of the particular circumstances surrounding each case. The legal frameworks of our European neighbours, including France until the 2004 law was enacted, usually embrace the solutions ad casum.Footnote 22 The normative solution runs the risk of unnecessarily limiting religious freedom. It is obvious that general regulations are not sensitive to the circumstances of each case.
Cases related to the presence of religious symbols in the public sphere
Before focusing on these cases, we should remember that, on many occasions, the principle of religious neutrality has played a vital role. Article 16.3 of the Constitution declares that the state should neither identify itself with nor grant privileges – directly or indirectly – to any particular religious group. This principle should be understood in the light of the co-operation principle between the state and religious denominations, acknowledged by Article 16.3 of the Constitution, and also Article 9.2, by virtue of which the state is obliged to become a protector of freedoms and to play an active role in removing those obstacles that may impair the full enjoyment of religious freedom by individuals and groups.Footnote 23 Based on these arguments, the religious neutrality in the Spanish constitutional framework cannot be understood as a lack of communication between both spheres but as an active relationshipFootnote 24 that requires public authorities, particularly the Government, to provide every religious grouping with a place in the public arena. Neither should it be forgotten, as can easily be inferred from the case law of the Constitutional Court, that the state's religious neutrality must work in conjunction with a stance on the part of public bodies that allows the exercise of religious freedom by all citizens and groups. This is, in fact, the real meaning of this significant principle in the Spanish legal framework.
Religious symbols at public universities
One of the most renowned cases concerning the presence of religious symbols in public institutions took place in the university sector. The suppression, recognised by a new university statute, of an image of the Virgin Mary from the coat of arms and medal of the University of Valencia aroused a huge controversy.
The Spanish Supreme Court issued a decision in which it declared that the suppression of such a religious image was not required to protect the state's religious neutrality.Footnote 25 In fact, that principle cannot be understood as a command for public authorities to remove any signs or symbols associated with certain religious beliefs that are deeply rooted in Spanish society. In this context, the court argued that the state's religious neutrality is not affected by the maintenance of the religious image in the coat of arms and medal of the institution, because this symbol has been used since 1771 in the documentation of the university, encompassing a secular and uninterrupted tradition. Moreover, the Supreme Court affirmed that the coat of arms and medal with the image of the Virgin belong not only to the cultural and historical heritage of this institution but also to the Spanish people, and in particular to the people of Valencia.
The Supreme Court finalised its decision through consideration of the strong relationship of many public symbols in Spain with the Roman Catholic faith. Despite their historic religious connection, they have been preserved in the public arena, in institutions such as universities, because they have suffered a secularisation process throughout the years and have partially lost their exclusively religious meaning. The court made explicit reference to the political symbols of different Spanish autonomous communities, such as the Principality of Asturias, which displays a cross on its emblem. The court concluded by saying that without some symbols the present cannot be properly understood. Therefore, maintaining that every symbol with a religious origin or connotation is to be suppressed in order to protect the religious neutrality of the state is flawed reasoning.
(At this point, it is interesting to refer briefly to the political symbols of emblems and seals of the different autonomous communities. A 1985 ruling of the Spanish Constitutional Court contains statements about the meaning and content of these political symbols that are also applicable to symbols of religious nature.Footnote 26 Certainly, as the Constitutional Court declares, one cannot ignore the fact that political symbols represent the historical heritage of a community and develop an element of inclusiveness that contributes to the establishment and maintenance of the community's conscience. This community conscience achieves a degree of autonomy in relation to those figures (generally political) through which it is otherwise identified.)
The aforementioned Supreme Court decision considering the suitability of the coat of arms of the University of Valencia was appealed before the Constitutional Court because of the possible infringement of the church–state neutrality principle.Footnote 27 The Constitutional Court declared that, in recognition of their autonomy,Footnote 28 the university authorities could legitimately withdraw the image of the Virgin from the coat of arms if the governing bodies of the institution considered that such a course of action was appropriate in the light of the principle of the religious neutrality of the state. Having said that, the court indicated that the correct interpretation of such a principle did not bind the university to withdraw the image, since respect for history and tradition had been the main factors taken into account by the academic authorities to retain, until that point, the religious image in the university's emblems.
Religious symbols in institutional mottoes
The reasoning assumed by the Supreme Court in its sentence of 1990 has also been welcomed outside the field of education. A 2003 decision of the Superior Court of Justice of Andalusia – deciding on an appeal against a Resolution of the Plenary session of the City Council of LucenaFootnote 29 – is an important example. The challenged resolution allowed the rehabilitation of the motto of the city, by which its citizens were put under the protection of the Virgin Mary, and the appeal to this resolution claimed that this rehabilitation led to the infringement of both ideological and religious freedom and also church–state neutrality.
The appeal was dismissed by the court, which affirmed that the inclusion of a term referring to the Virgin (‘Mariana’) in the local motto did not imply the recognition of a privileged position for the Catholic denomination, and that it was a simple recognition of the historical relationship – originating in 1562 – between the City Council and the Sanctuary of the Virgin of Araceli. Therefore, the inclusion of this reference did not affect the separation between the city of Lucena and the Roman Catholic faith, as required by Article 16.3 of the Constitution. Religious freedom was not harmed either, because this was a purely historical acknowledgement.
Similar cases have been discussed by Spanish courts. For instance, the Superior Court of Justice of Andalusia delivered an important sentence in 2005 dealing with the constitutionality of the statute of the Bar Association of Seville.Footnote 30 In that case, in compliance with a long-standing Spanish tradition – recognised by the Court – the Bar Association had been put under the protection of the Holy Virgin. Throughout the years, this tradition has continued and it has also affected state institutions, such as the armed forces.Footnote 31 The court, supporting its decision, also emphasised that representatives of the three powers of the state –including the Government – usually join the religious processions to pay homage to the Mother of God or Our Lord Jesus Christ that take place in the city of Seville, especially at Easter.
Critical analysis
In my opinion, the reasoning contained in all these decisions related to the presence of religious symbols in public institutions are, generally speaking, correct. Some religious symbols have adopted a more historical than religious nature with time. This statement can be linked with the position adopted by the Constitutional Court in decisions related to the constitutional admissibility of certain institutions with a religious origin. Those institutions have experienced a gradual process of secularisation and are nowadays primarily identified by their civil and cultural profiles rather than by their religious connotations.
Among the most relevant institutions that share a religious origin, the weekly rest on Sunday is a crucial example.Footnote 32 In a 1985 ruling, the Constitutional Court highlighted that the recognition of Sunday as the weekly rest day, as in all other countries within the Christian tradition, was purely religious in origin.Footnote 33 However, the court stated that this cannot lead us to conclude that the assumption of Sunday as a day of rest is exclusively based on the maintenance of an institution with purely religious origins. On the contrary, the Statute of Workers shows that the weekly rest is a secular and labour institution and that it includes ‘Sunday’ as a general rule because this day is the one enshrined by the tradition.
Now it should be considered whether the same argument is applicable to the religious symbols that can be found in certain public institutions. In my view, the answer is ‘Yes’. It seems clear to me that, beyond their religious connotations, many symbols also represent a heritage of cultural or traditional values from which it is difficult to infer a conflict with the state's religious neutrality. Supporting this position, it can be observed that certain religious objects, such as cathedrals or relics, have been categorised as properties of cultural interest and enjoy the protection of public authorities.Footnote 34 This legal treatment reflects that certain elements, in addition to their religious component, can be perceived from an eminently secular perspective as faithful witnesses of the history and traditions of a specific country. That is why the preservation of these religious symbols is not in conflict with the religious neutrality principle that must guide the attitude of the state.
CONCLUSION
As the boundary between the secular and the spiritual sphere is vague, conflicts between the two are unavoidable.Footnote 35 Using the words of the Spanish Constitutional Court, the emergence of conflicts concerning beliefs cannot be considered a rarity in a society that proclaims both religious freedom and the religious neutrality of the state.Footnote 36
As far as the use of religious symbols as an expression of personal beliefs is concerned, the limits on the free exercise must be very strictly applied. Otherwise, the limit itself will turn into a threat towards the legitimate exercise of religious freedom. In 2001, the Constitutional Court declared that an unquestionable danger for public security, health and morality must be proved before the judiciary before invoking public order successfully as a limit on the exercise of the right to religious freedom.Footnote 37
The solution to the cases in which personal religious symbols are involved should be found in the application of a proportionality rule that demands a detailed evaluation of the particular circumstances surrounding each case. In my view, the restrictions on religious liberty should be kept to the minimum impairment needed for the protection of the prevailing interest. That minimum level of impairment cannot be accurately ascertained through a general solution – eventually embodied in law – but through a balance of the rights and interests defining each conflict.
With regard to religious symbols displayed in public places, it should be borne in mind that the religious neutrality of the state does not require the elimination of any religious manifestations placed by individuals or groups in the public arena. On the contrary, such a principle is based on the free and equal exercise of the right to religious freedom for citizens and religious groups. What religious neutrality prohibits is any activity carried out on behalf of public bodies that can put the equal fulfilment of the free exercise of religion by individuals or communities at risk. Only under those circumstances can the practice be considered unconstitutional. In this context, the final outcome will depend on the ability and willingness of the judiciary to distinguish between real threat and mere shadow.Footnote 38
