Perspectives on religious freedom in Spain

Brigham Young University Law Review, 2001 by Paz, Jose Antonio Souto

In addition to subjecting religious groups to a special law, Article 26 prohibited "the State, regions, provinces, and municipalities from favoring, aiding, or financially supporting churches, religious associations, or institutions."53 Article 26 firther provided that "in addition, the Clergy's Budget will be dissolved within a period of two years."54 Finally, Article 26 disbanded the Jesuits-this time on constitutional grounds-under the following stipulation: "All religious orders that formally require, beyond the three canonical vows, a special vow of obedience to any power other than the State are hereby dissolved."55

Catholic delegates reacted to the foregoing constitutional provisions in no uncertain terms: "If put into practice, and even by its mere proposal, the Constitution as presently conceived is an attack on the Catholic conscience of the nation, a challenge, an invitation to war."56 Even Jose Ortega y Gasset, one of Spain's leading intellectuals and a proponent of separating church and state, said that "the article in which the Constitution legislates the actions of the Church seems highly improper to me."57 From the periodical El Socialists came the warning that dissolution and expulsion of religious groups "will cause a fatal split in the nation between those who accept the Constitution and those who flatly reject it because it contradicts the feelings that they hold most dear."58 Once the Constitution had been approved, the Spanish Episcopate openly disapproved of, and protested against, it. Specifically, the Episcopate stated that its acceptance of the power granted did not imply the Church's conformity with, much less its obedience to, that which opposed the laws of God and the Church.59

Possibly the finest declaration regarding the constitutional debate and, by extension, the religion question, was that of Gregorio Maranon. His commentary appeared in El Sol under the title The Myth's Hypnotic Power, and ran the night before the debate on Article 26:60

A hallucinatory myth weighs upon the delegates' judgment. This myth is a terrible parasite of our national psyche that has sucked rivers of our blood and of our moral and fiscal energy. This parasite is the myth of clericism-anticlericism, a myth to which many have attributed-with profound truth yet erroneous interpretations-the main causes for our lack of progress.

Half of Spain would propose that the cancer gnawing at us, the cancer hindering us from keeping pace with other European nations, is the excessive influence of clerical powers. The other half believes that without this priestly hegemony, the Spanish people would lose their vitality, their genuine character, and Spain would eventually disappear forever.61

B. Freedom of Religion in the Post-Second Republic Period: 1939-1978

Anticlericism triumphed in the aftermath of the debate over Article 26 with the onset of the Second Republic and the Constitution of 1931. After the Spanish Civil War,62 however, clericism returned with Francisco Franco's new political regime, which reinstated Catholicism as the official state religion and substituted religious tolerance for the fleeting recognition granted to freedom of conscience by the Constitution of 1931.63 The new regime also restored the state's former privileges in religious matters and those of the Church in the political arena.64 Specifically, through the Concordat of 1953, the regime outlined the principles for church-state cooperation in accordance with Church doctrine.65