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УДК 101.1 : 373 (460)
Javier Martinez-Torron
Religious Instruction in Spanish Public Schools: the Confluence of Equality, State Neutrality and Fundamental Rights*
This paper explains the legal basis, structure and functioning of the system of religious teaching in public schools in Spain, and analyzes the various problems that it has raised in the last decades, with specific reference to the case law of the Constitutional Court and the European Court of Human Rights. The author pays especial attention to the perspective of legal equality and the state's religious neutrality, and concludes with the recommendation that future modifications of the system are based on a broad social and political consensus.
В статье рассматриваются правовые основы, структура и функционирование системы обучения знаниям о религии в школах Испании. В свете решений Конституционного суда страны и Европейского суда по правам человека анализируются различные проблемы, возникшие в этой сфере образования за последние десятилетия. Автор уделяет особое внимание перспективам правового регулирования и нейтральности государства в вопросах религии, предлагает свои рекомендации для модификации системы образования в этой сфере на основе социального и политического консенсуса.
Key words: system of religious teaching in public schools in Spain, the state's religious neutrality, social and political consensus.
Ключевые слова: система обучения знаниям о религии в школах Испании, нейтральность государства в вопросах религии, социальный и политический консенсус.
1. Religion and Education in Spain
Education is an area of public activity in which the state often cooperates with the citizens' exercise of religious freedom. This occurs especially in two ways: by facilitating religious education in public schools, and by funding private schools with a religious ethos1. In this article I will focus
© Martínez-Torrón Javier, 2019
* This paper has been written in the context of the REVESTRA project (DER2015-64717-P). For the sake of brevity, I have reduced bibliographical references to a minimum. Further references can be found in the works here cited.
1 On the issues raised by private schools with regard to the state's religious neutrality, see: Silvia Meseguer, Neutralidad religiosa y enseñanza privada en España, Anuario de Derecho Eclesiástico del Estado 29 (2013), pp. 141-169. One of those issues, the possibility to remove public funding from single-sex schools on the ground of sex discrimination, was recently addressed by the Spanish Constitutional Court, which ruled that such removal would unfairly discriminate private schools that adopt a single-sex approach on religious or pedagogical
on the issue of religious education, which involves not only the state's cooperation with religious communities but also the parents' rights over the religious and moral orientation of their children's education, guaranteed by Art. 27.3 of the Spanish Constitution (CE: Constitución Española) and by Art. 2 of the Protocol to the European Convention on Human Rights (ECHR)1.
It is important to keep in mind that, in the European context, organizing religious education in public schools engages not only the discretion of public authorities to find ways to cooperate with religious communities and with the parents' rights. It also engages the state's obligation to have a neutral stance towards religion, which in many countries, as Spain, is imposed at the constitutional level2.
In Spain, there is a long-standing tradition of religious teaching in schools as a part of the ordinary curriculum. So far, religious education in Spain has always been conceived as confessional education, i.e., as instruction in a specific religion (often Roman Catholic), taught by members of that particular religion and under the supervision of institutions representing it. Such religious instruction is normally aimed not only at providing information about religious tenets and doctrines but also at transmitting a given faith and values. It is, by definition, neither neutral nor objective, although it can - and should - be carried out in accordance with the appropriate academic standards and methodology. Neutral teaching about religion has never been introduced effectively as a school subject, elective or mandatory, in the Spanish educational system3.
grounds; for a comment on this judgment, see: Rafael Navarro-Valls, Comentario a la STC de 10 de abril de 2018 (religión y educación diferenciada), Revista General de Derecho Canónico y Derecho Eclesiástico del Estado 47 (2018), pp. 1-4.
1 The protection of parents' rights with regard to their children's education tends to be more difficult when the state is inclined to implement educational policies that invade areas traditionally reserved to private and family morals. On the many conflicts that may arise in this respect, see: Ana M. Vega, La objeción de conciencia en el ámbito educativo, Cuadernos de derecho judicial 11 (2007), pp. 207-296; María J. Valero, Homeschooling en España, Revista General de Derecho Canónico y Derecho Eclesiástico del Estado 28 (2012), pp. 1-32; Rafael Navarro-Valls & Javier Martínez-Torrón, Conflictos entre conciencia y ley (2d ed.), Iustel, Madrid, 2012, pp. 235-316.
2 See: Art. 16.3 CE. On the issue of the Spanish constitutional principles on religion, I refer the reader to Javier Martínez-Torrón, Religion and Law in Spain (2d ed.), Wolters-Kluwer, The Netherlands, 2018, Part I, where further bibliographical references can be found. The same book can be used to clarify aspects of the Spanish law on religion that, for obvious reasons of space limits, in this article are merely alluded and not explained. State's religious neutrality raises also interesting questions with regard to the display of religious symbols in schools; see, in this regard, Santiago Cañamares, Libertad religiosa del menor y simbología religiosa en la escuela, in "Algunas cuestiones controvertidas del ejercicio de la libertad religiosa en España" (Isidoro Martín & Marcos González eds.), Fundación Universitaria Española, Madrid, 2009, pp. 331-359.
3 See, however, the concluding remarks of this article (section 0).
As explained below, the way religious instruction is organized varies when we compare Catholic teaching with religious teaching of other denominations. Although there is a trend towards a certain gradual convergence on the normative level, the very different social demand of Catholic and other religious teachings makes it unrealistic to equalize their respective situations on a factual level - Catholic education is, by far, the one that is most requested by parents1.
Be it Catholic or other, two main features are characteristic of religious education in Spanish public schools. First, it is always an elective subject that may be provided by religious communities only upon the request of the students' parents or legal representatives. Confessional religious instruction cannot be enforced as a mandatory course. This is an obvious consequence of the principle of state religious neutrality. In the second place, not all religious denominations are entitled to provide religious teaching in public schools, but only those with which the state has concluded a cooperation agreement - i.e., the Catholic Church, and the communities integrated into the Evangelical, Jewish and Islamic Federations. This rule has raised controversies with regard to the principle of equal treatment of religions in Spain, especially in view of the Spanish political praxis - no agreements have been concluded in the last twenty-six years, despite the fact that other religious communities are in a position comparable to that of the three religious minorities that signed a cooperation agreement with the state in 19922.
1 The statistics of religious instruction for the academic year 2015-2016, provided by the Ministry of Education, can be found in: http://www.educacionyfp.gob.es/dms/mecd/servicios-al-ciudadano-mecd/estadisticas/educacion/indicadores-publicaciones-sintesis/cifras-educacion-espana/2015-16/E4-pdf.pdf (accessed 5 December 2018). Taking into account all types of schools, public and private, Catholic courses are followed by about 66% of Spanish students in primary education, 53% in secondary education and 30% in baccalaureate. Students of Evangelical and Islamic religion do not reach even 1%. According to the 2016 Annual report on the status of religious freedom in Spain, published by the Ministry of Justice, pp. 42-45, there were 25,660 teachers and more than 3.5 million students of Catholic religion courses. Evangelical education was provided by approximately 240 teachers to 16,000 students in 800 schools. No data are given about students of Islamic religion courses, which were taught by 55 teachers, the vast majority of them distributed among Andalusia (22), Ceuta (14) and Melilla (10). No other religious instruction is currently provided in public schools. The report, in Spanish, is available in: http://www.mjusticia.gob.es/cs/Satellite/Portal/ 1292428610708?blobheader=application%2Fpdf&blobheadername1=Content-Disposition&blobheadername2=Grupo&blobheadervalue1=attachment%3B+filename% 3DInforme_anual_sobre_la_situacion_de_la_libertad_religiosa_en_Espana_2016_Espanol.P DF&blobheadervalue2=Docs_Llibertad+religiosa (accessed 17 December 2018).
2 On the system of agreements between state and religious communities in Spain, with mention of its problematic functional aspects, see: Javier MartInez-Torron, Religion and Law in Spain, cited in footnote 2.
2. Teaching of Catholic Religion 2.1. The Normative Framework
The teaching of Catholic religion in schools is based on the Concordat provisions and, more precisely, in Articles I-VII of the 1979 Agreement on Education and Cultural Issues between Spain and the Holy See1. These provisions, and their implementation by state legislation, have been declared in conformity with the Constitution on various occasions by the Constitutional Court2 and by the Supreme Court3. They can be summarized as follows.
All school curricula in the pre-university educational levels, from primary education to high school, must include Catholic religious instruction. The same applies to university schools for teacher training. The Concordat does not distinguish between public and private schools. This raises a significant theoretical question: to what extent private schools can be subject to the same obligation to offer Catholic instruction as public schools. In practice, there are not particular problems, for most private schools are based on a Catholic ethos - and often run by ecclesiastical institutions -and it is commonly accepted that private schools without a specific religious ethos are not obliged to offer courses on Catholic religion (although many of them do, except when they are of explicit secular orientation). On the other hand, the few private schools based on a religious ethos other than Catholic are not usually attended by children of parents requiring Catholic religious instruction.
Catholic doctrine must be offered as an elective course4 and shall never be mandatory for students. They, or their parents, must explicitly request those courses. Although elective, courses of Catholic religion must be offered in conditions equivalent to the rest of fundamental courses.
Teachers of Catholic religion are appointed and hired by the competent state authorities; they work under an annual renewable contract and their salaries are paid by the state5. However, teachers must be chosen
1 The current Spanish Concordat with the Holy See is not contained in a single text but is composed of five partial agreements: one of 1976 and four of 1979, a few days after the Constitution was promulgated.
2 Part of the Constitutional Court's case law is cited below, in section 0 of this article.
3 See, for instance: STS 6999/2008, 10 December 2008.
4 Some regional laws have been annulled for not specifying that all schools were obliged to offer Catholic religion courses as electives for students. See STSJ Islas Baleares 84/2016, 9 February 2016.
5 See: M. Belén Rodrigo Lara, La financiación de la enseñanza de las religiones en la escuela pública, in "La financiación de la libertad religiosa" (Carmen GarcimatÍn ed.), Comares, Granada, 2017, pp. 419-434.
among the persons included in the list proposed every year by the bishop of the diocese where the school is located. The ecclesiastical hierarchy is also the only competent authority to define the contents of religious instruction and to approve the relevant textbooks. For the purpose of unification, the Bishops Conference has been defined the curricula of Catholic religion courses for all Spain1. It has also unified the criteria to select appropriate religion teachers.
At least since 2007, it is clear that people who want to be proposed as religion teachers by a diocesan bishop must meet two requirements, which combine the autonomy of each bishop to judge the moral qualification of candidates with a uniform academic profile applicable to all Spanish dio-ceses2. In the first place, the candidate must have an 'Ecclesiastical certification of academic competence' (DECA, Declaración eclesiástica de competencia académica), which is granted by the Episcopal Commission of Teaching and Catechesis of the Bishops Conference after completing a specific academic training. In the second place, it is necessary to obtain an 'Ecclesiastical certification of adequacy' (DEI, Declaración eclesiástica de idoneidad), granted by the bishop of the diocese within which the candidate intends to teach religion. In accordance with the Code of Canon Law3, the second certification is based upon 'considerations of religious and moral nature', and 'entails right doctrine and testimony of Christian life'. It can be revoked any time by the bishop if he thinks that the candidate no longer meets the necessary requisites, and it is not valid for other dioceses. The requirement of DEI was introduced likely as a consequence of the judicial litigation mentioned in the next section of this article4. Apparently, the Bishops Conference thought that, in order to prevent further litigation along those lines, it would be useful to state more clearly the academic and moral requisites to be proposed as religion teacher, as well as to indicate the revocability of such proposals when some teachers lose, in their bishop's opinion, their moral qualification to teach Catholic doctrine.
To fully understand the Spanish bishops' position, it is important to keep in mind that, from the perspective of canon law, religion teachers fulfil an ecclesiastical function, for which they need a missio canonica. They are expected to teach religious doctrines representing the Catholic Church, in exercise of the Church's teaching function (munus docendi). Indeed, the position of the Spanish Bishops Conference is consistent with the provi-
1 Those curricula are available in: http://www.conferenciaepiscopal.org/curriculo-de-religion/ (accessed 6 December 2018).
2 See: http://www.conferenciaepiscopal.org/requisitos-deca/ (accessed 6 December 2018).
3 Code of Canon Law, canons 804-805.
4 See below, section 0.
sions of the 1983 Code of Canon Law of the Roman Catholic Church, which specifically assigns to diocesan bishops the duty to ensure that "those who are designated teachers of religious instruction in schools ... are outstanding in correct doctrine, the witness of a Christian life, and teaching skill"1.
In 2006, the Organic Law on Education2 introduced a nuance in order to reconcile the ecclesiastical autonomy and competences with the stability of teachers. It provided that proposals for religion teachers are for a one-year term, and are automatically renewed every year unless the relevant bishop decides to remove from the list of eligible teachers a person that is no longer considered appropriate for that function3. It must be kept in mind that, although it is the bishop who proposes religion teachers, they are appointed, hired and paid by the state. When they are not public servants with tenure in the realm of education, they must sign a labour contract with the relevant educational authority at a regional level4. In practice, teachers of Catholic religion are not only clergymen; there is a high percentage of lay people, men and women.
In 2013, another law on education5 provided that, during primary and secondary education, all students must choose necessarily between a religion course (Catholic or other) and a course that is called 'social and civic values' in primary education and 'ethical values' in secondary education. The system changes in the two years of the Baccalaureate - those that immediately precede university education - in which religion is just one of the many elective courses offered to students on equal conditions.
There is a high social demand of Catholic instruction in school, although the figures tend to decline slowly over the years. According to the statistics published by the Bishops Conference, during the academic year 2016-2017, combining the figures of all educational levels in public and private schools, around 63% of the students in Spanish schools have chosen courses on Catholic religion. However, the numbers decrease as the
1 Code of Canon Law, canon 804.2.
2 See: Ley Orgánica 2/2006, 3 May 2006, de Educación, additional provision 3. On some of the controversial issues raised by this law, see Irene Briones, Aspectos controvertidos de la nueva ley de educación, in "Educación y religión: una perspectiva de derecho comparado" (María Domingo ed.), Comares, Granada, 2008, pp. 1-44. See also, in the same volume, María Domingo, Educación en la fe, ¿un derecho de alguien?, pp. 81-112.
3 On their own motion, state authorities could also decide not to renew the contracts of religion teachers only on the ground or 'serious academic or disciplinary reasons' (cf. Order of the Ministry of Education, 11 October 1982, para. 3).
4 The labour relationship of religion teachers is regulated by the Real Decreto 696/2007, 1 June 2007, por el que se regula la relación laboral de los profesores de religión.
5 Ley Orgánica 8/2013, 9 December 2013, para la mejora de la calidad educativa.
students' age increase. The percentage of students that choose classes of Catholic instruction is much higher in elementary and primary education than in secondary education, especially in public schools and in private non-ecclesiastical schools1.
2.2. The Case Law of the Constitutional Court
The Constitutional Court has been called several times to intervene in issues relating to the system of Catholic religious instruction in schools. In two important judgments of the 1990s, the Court clarified the legal status of those courses apropos of Catholic teaching in the school for teacher training at the Autonomous University of Madrid.
The two cases involved the refusal of the university's governing bodies to comply with Concordat provisions. In 19912, the Constitutional Court affirmed that the university was obliged to offer such courses, holding that the Concordat - a legitimate international treaty - was legally binding and limited the university's autonomy. In 19973, the Constitutional Court ruled again in favour of the Catholic Church, emphasizing that the Concordat obliged the university to keep the credits of Catholic religion courses in fair proportion with other 'fundamental courses'; for the Court, allocating only four credits to them was clearly disproportionate considering that other fundamental courses, such as plastic arts and music, were worth eighteen and twenty-four credits, respectively.
The Constitutional Court has also adjudicated on a number of conflicts arisen by the ecclesiastical removal of religion teachers on the ground of behaviour against Catholic moral rules, or because they were involved in public protests against ecclesiastical policies4. As explained above, teachers of Catholic religion in public schools are proposed by the bishop but hired and paid by the state. Although there is no labour relationship between a religion teacher and the Church, the relevant diocesan bishop determines if teachers can remain or not in their position, for he can remove a person from the list of eligible teachers if he considers that such person is no longer adequate for the job. And this negative judgment can be based
1 The annual statistics since 1996 can be found in: http://www.conferenciaepiscopal.es/alumnos-que-reciben-formacion-religiosa-y-moral-catolica/ (accessed 5 December 2018). The figures provided by the Bishops Conference are substantially coincident with the more comprehensive, but less updated, figures provided by the Ministry of Education.
2 STC 187/1991.
3 STC 155/1997.
4 For an interesting analysis of this case law, see María José Valero, El derecho de los profesores de religión católica al respeto de su vida privada y familiar, Revista General de Derecho Canónico y Derecho Eclesiástico del Estado 33 (2013), pp. 1-28.
not only on the teachers' lack of academic or pedagogical qualities but also because their behaviour out of school was known to infringe serious moral principles of the Catholic Church or because they acted against the interests of the Church. The underlying notion is that the contradiction between the teachers' bad example of life and the doctrines they impart at school will necessarily have an undesirable impact on the efficacy of religious instruction, in addition to constituting a scandal, thus potentially damaging the credibility of the Church.
These cases raise two important - and inter-related - constitutional questions. First, how to face the conflict between two fundamental rights protected by the Constitution: churches' religious autonomy and individuals' right not to be discriminated against in the working place on the ground of the choices they make regarding moral or family issues. And second, to what extent the state's religious neutrality can be reconciled with invading a very sensitive aspect of religious autonomy such as the organization of religious education, even with the noble intention to protect fundamental rights of the individual.
The first case decided by the Constitutional Court, in 2007, was raised by a divorced woman who cohabited with a man1. It was followed shortly by eleven other cases regarding persons that had been deprived of the ecclesiastical permit to teach religion because of their active involvement in protests, strikes and demonstrations against policies on religion teachers2. Also in 2007, the Court had to face the claim of a former priest who, having worked as religion teacher for six years following his abandonment of priesthood and subsequent civil marriage, publicly participated in a 'movement pro optional celibacy' of Catholic clergy3.
In all these judgments, the position of the Constitutional Court was definitely on the side of the Catholic Church's autonomy. In essence, the reasoning of the Court was that confessional teaching of religion entails more than the mere communication of knowledge and implies transmitting a faith that must be somehow evinced by a personal testimony of life (as the Code of Canon Law emphasizes). Therefore, only the competent ecclesiastical authorities have the legitimacy to judge who is, or is not, academically and morally qualified for that teaching, which is done on behalf of the Catholic Church as part or its spiritual mission. For the Court, civil authorities are bound by the bishop's decision and must limit their scrutiny to confirm that the reasons alleged by the bishop are of religious nature. The fact
1 STC 38/2007.
2 See: STC 80/2007 to 90/2007, all of them of the same date.
3 STC 128/2007.
that the state is the teachers' employer, following the provisions of the Concordat and the constitutional principle of cooperation with religion, does not justify the intervention of public authorities in a strictly religious dispute that is alien to the state competences - such invasion would be contrary to the constitutional principle of state's religious neutrality.
Curiously, in 2011, although reaffirming the same principles, the Constitutional Court decided in the opposite direction another case whose facts were very similar to those of the first judgment of 20071: the plaintiff was a woman that had contracted civil marriage with a divorced person, who was also a Catholic2. The Court accepted that the bishop had acted on religious grounds, but counterbalanced religious autonomy with the constitutional right of the dismissed teacher - in particular her right to the 'free development of personality' (Article 10.1 CE), her right to marriage (Article 32 CE), and her right to the 'respect for private and family life' (Article 8 ECHR). The Court concluded that it would be discriminatory to make the plaintiff choose between keeping her job and exercising her fundamental rights.
This decision of the Constitutional Court has raised some criticism among scholars3, among other reasons because it emphasizes the significance of the labour situation of the plaintiff and ignores the constitutional basis of the current system of teaching Catholic religion in public schools. From that perspective, it seems contradictory to permit that a person teaches a religious doctrine on behalf of a church that has explicitly disqualified her from that task. Nevertheless, in 2016, the Supreme Court followed the latter judgment of the Constitutional Court and declared null and void the dismissal of another female teacher in a comparable situation (she had contracted civil marriage with a divorced man)4. The Court disregarded something crucial, namely that teachers of Catholic religion in public schools perform a strictly religious function regulated by canon law, and treated the case as an ordinary labour contract. The Court concluded that the teacher's fundamental rights had been violated because of lack of sufficient rationale in the bishop's decision to remove the plaintiff from the list of eligible religion teachers - not being very clear when the rationale could be deemed "sufficient"
1 STC 51/2011.
2 Civil divorce is not recognized by the Catholic Church as a valid mechanism of dissolution of a religious marriage. Under Roman canon law, Catholics bound by a canonical marriage may not legitimately marry a third person unless they obtain a declaration of nullity from an ecclesiastical court, or dissolution of marriage from the Pope in case of an unconsummated union.
3 See, for instance: Montserrat Gas Aixendri, La declaración canónica de idoneidad para la enseñanza de la religión católica y su control jurisdiccional por parte del Estado, Revista General de Derecho Canónico y Derecho Eclesiástico del Estado 29 (2012), pp. 1-17.
4 See: STS 876/2016, 20 Oct. 2016.
Those latter decisions of Spanish higher courts are in contrast with the position of the European Court of Human Rights, which in two judgments of 2012 and 20141 confirmed one of the Constitutional Court's judgments of 2007 (the one involving an ex-priest supporting an anti-celibacy movement). The Court of Strasbourg held that the autonomy of the Catholic Church to freely decide who is appropriate to teach its doctrines on its behalf prevails over the applicant's right to privacy and family life (Article 8 ECHR). The European Court also remarked that interfering with an ecclesiastical decision adopted on religious and moral grounds was incompatible with the necessary state neutrality on issues concerning the internal autonomy of religious communities2.
3. Teaching of Religious Doctrines Other than Catholic
As could be expected, the 1979 Concordat with the Holy See provided for Catholic religious instruction. And, in the years that immediately followed the 1978 Constitution, no legislative provision was made for the denominational teaching of other religious doctrines in public schools. That legal lacuna was solved in 1990, when a general law on education provided that religion courses could be taught in public schools by those religious communities that had concluded a cooperation agreement with the state3. At that time only the Catholic Church was in that position, by virtue of the 1979 Concordat. The practical consequence was that religious teaching other than Catholic was excluded from the schools curricula.
The actual possibility of religious teaching other than Catholic in public schools opened in 1992, when the Spanish legislator approved three cooperation agreements with the Evangelical, Jewish and Islamic Federations, respectively. The issue of religious education was addressed in Article 10 of the agreements, which tried to adapt the system of Catholic teaching system to the very different social reality of those three religions in comparison with the majority position of the Catholic Church in Spain. Its basic rules are the following.
In contrast with the criterion applied to the teaching of Catholic religion, public schools are not generally obliged to offer elective courses on
1 Fernández Martínez v. Spain, 15 May 2012 (Chamber) and 12 June 2014 (Grand Chamber).
2 This has been one of the most complex cases regarding religious autonomy before the ECHR. It is analysed in detail by Ian Leigh and Javier MartÍnez-Torrón in their respective chapters in When Human Rights Clash at the European Court of Human Rights: Conflict or Harmony? 192-241 (Stijn Smet and Eva Brems eds.), Oxford U. Press, 2017. The European Court took an identical approach in a subsequent judgment, Travas v. Croatia, 4 October 2016.
3 See: Ley Orgánica 1/1990, 3 Oct. 1990, de Ordenación General del Sistema Educativo, additional provision 2.
Evangelical, Jewish or Islamic religion unless there is an explicit application by some students or their parents. This rule is based on practical reasons stemming from the number of students that request religious education other than Catholic1. However, confessional teaching of Evangelical, Jewish or Islamic religion must be guaranteed in all pre-university educational levels, upon request of the students or their parents, in public schools as well as in private schools supported with public funds, provided that such teaching is not in conflict with the school's ethos (which may be the case in some Catholic schools, for example). Schools are obliged to facilitate the appropriate classrooms.
As in the case of Catholic religious instruction, religion teachers shall be proposed by the relevant religious federation. Defining the content of religious education and choosing the adequate textbooks is also a competence of the same federations. Since 1996, Spanish law foresees that teachers of Evangelical and Islamic religion can be paid by the state in the same conditions as teachers of Catholic religion - i.e., as interim teachers and according to their effective teaching hours - when those courses have been requested by a minimum of ten students2. In order to reach that minimum number, it is possible to join students from different ages in the same school3.
In practice, the system of Evangelical and Islamic religious teaching does not work as efficiently as Catholic religious teaching, for two main reasons. One is the difficulty to reach the minimum number of ten students in the same school. The other - especially in the case of Islamic communities - is the difficulty to reach a consensus about how to select the appropriate persons to teach religion and about how to determine their academic or theological qualifications. Teaching of Islamic religion in public schools functions in acceptable conditions only in the extra-peninsular cities of Ceuta and Melilla, which have a high percentage of Muslim population and in which the Spanish government and local civil authorities worked hard to obtain the consensus and support of local Muslim communities. Andalusia,
1 See the data provided supra, in footnote 1.
2 See: Resolución of 23 Apr. 1996, of the Vice-Secretary (of the Ministry of the Presidency), ordering the publication of the Acuerdo of the Council of Ministers of 1 March 1996, and the Convenio sobre designación y régimen económico de las personas encargadas de la enseñanza religiosa evangélica, en los centros docentes públicos de educación primaria y secundaria; and Resolución of 23 April 1996, of the Vice-Secretary (of the Ministry of the Presidency), ordering the publication of the Acuerdo of the Council of Ministers of 1 March 1996, and the Convenio sobre designación y régimen económico de las personas encargadas de la enseñanza religiosa islámica, en los centros docentes públicos de educación primaria y secundaria.
3 The Jewish Federation did not express a specific interest in joining that system in 1996, probably because they thought they could not reach that minimum number of students in a school.
a big region in the south of Spain, is the only other region with a noticeable number of Islamic religion teachers1. In an effort to facilitate the implementation of legal provisions on Islamic education and its standardization, the government has published in 2016 the official syllabi of Islamic instruction for the different school levels2. Both the Evangelical Federation and the Islamic Federation - and also the Catholic Church - complain that often students do not receive enough information from public schools about the possibilities they have to choose religious instruction; and that sometimes the school authorities do not have sufficient knowledge about the laws governing this area of education3.
Frequent requests to run a similar system of religious instruction in public schools have been addressed to the government by some of the other important religious minorities in Spain, which are in a comparable situation to Protestantism, Judaism and Islam (they have been recognized "well-known roots" or notorio arraigo) but never had the opportunity to sign a cooperation agreement with the state4. So far those requests have been unsuccessful. The legislative reservation of confessional religious instruction for religious communities with cooperation agreement has continued in all legal reforms on education to date.
4. Concluding Remarks
The realm of religious instruction reflects the underlying tensions between state and religion in Spain. In 1979, in the context of a big constitutional change, the Concordat with the Catholic Church renewed a traditional system of religious education but made religion courses optional for students. This system, which requires a reciprocal involvement of church and state, has been often questioned for being dated and for paving the way for a variety of conflicts - the case of Fernández Martínez before the European Court of Human Rights is very expressive of just one type of these conflicts. Nevertheless, with the passage of time the system not only
1 See the numbers supra, note 1. To better understand those figures in context, one should take into account that the estimated population of Andalusia is 8.4 million, while Ceuta and Melil-la have about 85,000 each. It is remarkable to see the low number of teachers in Madrid (1) and Catalonia (0), despite the large Muslim population in those regions.
2 Resolución of 14 March 2016, of the Dirección General de Evaluación y Cooperación Territorial, por la que se publica el currículo de la enseñanza de Religión Islámica de la Educación Infantil, and Resolución of 14 March 2016, of the Dirección General de Evaluación y Cooperación Territorial, por la que se publican los currículos de la materia de Religión Islámica en Educación Secundaria Obligatoria y Bachillerato.
3 See the 2016 Annual Report cited in footnote 1, pp. 42-44.
4 The fact that they have not reached a cooperation agreement with the state is due to the all governments' refusal to engage in a negotiation process after 1992. No particular reason has ever been provided for that refusal, which leads one to infer that it has been an arbitrary decision taken out of mere political convenience. From a legal perspective, the situation is striking.
has not been modified but has also been applied, in a slightly modified way, to some of the most significant religious minorities in Spain, through the channel of the 1992 cooperation agreements with Protestantism, Judaism and Islam.
In 2002 the Spanish government tried to reconcile this traditional confessional teaching with other parallel innovative system: a pluralistic and non-denominational teaching of religion1. The idea was to develop a neutral approach to religious education - or, rather, education about religion -based on the recommendations of the Parliamentary Assembly of the Council of Europe, which had encouraged the inclusion of comparative teaching of religion in school curricula as a way to foster tolerance2. These new religion courses would be in charge of teachers appointed by the state on strictly academic qualifications according to the common rules applicable to the selection of teachers. Students could freely choose between the two types of religion courses - confessional or neutral - and would have necessarily to choose one of them.
That initiative, however, was never realized, because a new government elected in March 2004 suspended its application and enacted, two years later, a new law on education that returned to the pre-existing system. Since then, the school curriculum includes only denominational teaching of religion as an elective subject, in accordance with the system described above. Depending on their political colour, subsequent governments have either kept the system running as usual or tried to undermine it by making it compete with new courses with an ethical profile. That was the case, for instance, of a controversial subject called 'education for citizenship', which created a strong contrary reaction on the part of the Catholic bishops and thousands of families, because its syllabus included contents that entailed some ideological and moral indoctrination on very sensitive issues3.
1 With the Ley Orgánica 10/2002, 23 December 2002, de Calidad de la Educación. On some of the issues raised by this law, see: Rafael Palomino, El área de conocimiento "Sociedad, Cultura y Religión": algunos aspectos relacionados con la libertad religiosa y de creencias, Revista General de Derecho Canónico y Derecho Eclesiástico del Estado 10 (2006), pp. 1-27.
2 See especially the Recommendation 1396 (1999), on Religion and Democracy; and Recommendation 1202 (1993), on Religious Tolerance in a Democratic Society, recommended. There is a subsequent recommendation of the Parliamentary Assembly specifically on this subject: Recommendation 1720 (2005). In the same line, there is an interesting and detailed document elaborated by the OSCE/ODIHR Advisory Council of Experts on Freedom of Religion or Belief, the Toledo Guiding Principles on Teaching about Religions and Beliefs in Public Schools, ODIHR, Warsaw, 2007.
3 For a detailed analysis of this issue - which was very important in Spain at the time - with legislative, case law and bibliographical references, see: Lourdes Ruano Espina, Objeción de conciencia a la Educación para la Ciudadanía, Revista General de Derecho Canónico y
This subject was eliminated in a subsequent educational reform (2013) and replaced by the obligatory cross-disciplinary teaching of 'civic and constitutional education' as well as by the teaching of 'social and civic values' or 'ethical values', which is now offered as a necessary alternative to confessional religion courses in primary and secondary education.
The current government has announced its intention to pass a new law on education, which could include some modification of the provisions relating to religious instruction in public schools. However, the precarious situation of this government makes the future of this legislative project un-predictable1.
There are scholars who think that the Spanish system of religious teaching should be revisited, not because it is necessarily a bad system or because religious teaching should be excluded from public schools, but because it should be organized, in contemporary Spanish society, in a way that makes it efficient and inclusive at the same time - i.e., in a way that makes it a factor that promotes social cohesion and is not likely to cause social conflict. I agree with that approach, but such reform would be possible only if we reach a high degree of socio-political consensus that includes some of the significant players in this field: the churches and religious communities.
In Spain we have had, in the recent past, too many laws on education that were passed by a little majority in parliament and were soon replaced, or largely modified, by the next government. Education is an area in which consensus in the law-making process and long-term policies are especially important. Education in general and religious teaching in particular, should not be treated as a ball in a tennis match.
Статья поступила: 24.12.2018. Принята к печати: 31.01.2019
Derecho Eclesiástico del Estado 17 (2008), pp. 1-61; M. Teresa Areces, Derecho a objetar en el ámbito educativo: educación para la ciudadanía. Resoluciones judiciales, Anuario de Derecho Eclesiástico del Estado 25 (2009), pp. 343-377; Angel López-Sidro, La objeción de conciencia a la educación para la ciudadanía ante los Tribunales Superiores de Justicia, Revista General de Derecho Canónico y Derecho Eclesiástico del Estado 17 (2008), pp. 1-26; Rafael Navarro-Valls & Javier MartÍnez-Torrón, Conflictos entre conciencia y ley, cit. in footnote 1, pp. 298-312.
1 The president of the government obtained the office through an impeachment process in awkward circumstances and is supported only by 84 members of Congress out of a total of 350.
