Religious Freedom and Democratic Change in Spain

I. INTRODUCTION It is probably not pretentious to assert that in the second half of the 1970s Spain experienced one of the most successful democratic transitions in history. The metamorphosis of Spain's political system was achieved very efficiently, quickly, peacefully, and with the consensus of the vast majority of Spanish citizens and political forces. This is certainly unusual considering Spain's political history, during which democracy had neither deep nor long-lasting roots. Within Spain's turbulent twentieth century, the mid-1970s political reform had been preceded by thirty-six years of General Francisco Franco's dictatorship, which began in 1939 after three years of civil war that put an end to the Second Republic.2 Shortly after Franco's death in 1975,3 Spain rapidly transformed into a democracy, fully complying with all international standards both on paper and in practice.4 The most important instrument of that transformation, and the pillar of the subsequent development of Spain's political system, was the Constitution approved by referendum in late 1978.5 In this movement towards democracy, the 1980 Organic Law on Religious Freedom (Ley Organica Ae Libertad Religiosa)6 played an essential role. It was the first enacted "organic law" to implement the fundamental rights recognized by the Constitution. It is important for Spaniards to remember this fact and to analyze its causes so as to not lose sight of the achievements of Spain's recent political evolution and the path Spain followed to reach them. Doing so would risk the possibility that the contemporary political atmosphere would ignore, and therefore undermine, a remarkable part of the basis upon which Spain's still-young democracy was built. Such an analysis may be interesting beyond Spain's borders as well, especially because Spain's political situation in the 1970s is not at all unique. Although each nation has its peculiar history and circumstances, the existing analogies between some countries are significant and justify looking at what occurred in Spain twenty-five years ago. I have in mind certain analogies that relate to the political situation in the strict sense and also those relating to other issues, such as socio-religious circumstances or prevailing cultural patterns. Naturally, it is not my intention to propose that Spain's political transition or its system of church-state relations are models for all nations to imitate. Transplants are of dubious efficiency in comparative law as well as in politics. However, it is always useful to learn from other countries' experiences, from their mistakes, and from their accomplishments. And perhaps in this sense, Spain's example can be of use to other emerging democracies struggling with issues of religious liberty. II. THE HISTORICAL AND POLITICAL CONTEXT OF THE ORGANIC LAW ON RELIGIOUS FREEDOM An adequate understanding of LOLR and the function it fulfilled as Spain transitioned to democracy requires that it be read in connection with the great document that served as the basis for the entire democratic process: Spain's 1978 Constitution. It is also necessary to situate both norms within the context of Spain's political and religious history, especially during the 20th century.7 As is well known, the vast majority of Spain's population, both traditionally and especially in the last five centuries, is Catholic.8 In the late fifteenth century, Spain forged its national unity together with its religious unity. The unity of the new nation was shortly followed by an ambitious enterprise: the building of an enormous overseas empire, in which the union between political unity and religious unity would exercise a decisive influence. To be a Spaniard and to be a Catholic were understood as equivalent; they were two sides of a single national identity. As a consequence, adherents of other religions (such as Judaism and Islam) who refused to convert were expelled from the kingdom. …