Spanish Constitutional Court rules
Registration of Religions is a Right,
Not a Privilege

On February 15, 2001, the Constitutional Court of Spain rendered an extremely important religious freedom decision. The Constitutional Court, sitting in full session (with one judge dissenting) determined that the decision of the Bureau of Religious Affairs of the Ministry of Justice refusing to enter the Unification Church (UC) in the National Register of Religious Institutions constituted a violation of the UC’s right to religious freedom. Accordingly, the Court ordered the enrolment of the UC in the National Register of Religious Institutions.

This decision is extremely significant for a number of reasons.

First, the decision constitutes a clear signal that Spain has entered the 21st century and embraced the principles of non-discrimination and equality, and that its commitment to minority religious tolerance and religious pluralism is now backed by the full force of the law.

Second, the highest court in Spain has determined that the act of registration as a religious association is an essential component of a religious institution’s “core right” in its own capacity and collectively on behalf of its members to religious freedom.

In reaching this conclusion, the Court noted a number of benefits which flow from registration, including “an attitude of respect to the creed and its religious practices” by the State, the provision of “required protection,” and affirmative action by the State regarding “the real and effective enforcement” of the rights of the institution and its parishioners to religious freedom.

Thus, the refusal to register “turns into an unjustified obstacle that lessens the exercise, in full, of the fundamental rights to religious freedom available to all groups and correlatively, establishes an undesired situation of comparative aggravation” for groups unjustly denied registration.

This determination stands in stark contrast to proposed or enacted laws in a number of other countries (e.g., Austria, Czech Republic, Hungary, Portugal, Russia) to refuse registration to targeted minority faiths based upon legislative requirements such as the number of national parishioners or the number of years a religious institution has existed in a country.

It also refuses arguments advanced in some European countries that the right of registration or official recognition is not a right but a “privilege” which the State may confer as it deems fit. Instead, the Constitutional Court determined that the freedom to manifest one’s religion “in community with others” is not a gift granted by the State—it is a human right.

Third, in light of the Court’s unequivocal finding that registration is an essential part of religious freedom, it determined that any attempt by the State to restrict that right in the name of “public order” is subject to strict scrutiny by the Court. Therefore, the grounds for refusal of the Bureau of Religious Affairs to register the UC could not be based upon “mere suspicions about possible future behavior and its hypothetical consequences” or “conjectures about the purposes and activities of the religious institution.”

As the record provided no concrete wrongdoing supporting the Bureau of Religious Affairs’s refusal to register the UC on public order grounds, the Court nullified the Bureau’s administrative action, finding that the “evidence” relied upon by the Bureau of Religious Affairs—a 1989 report by a Commission on “Sects”—suffer from a clear inconsistency and lack all suitability to reasonably reach the Bureau’s conclusions.

Continued...