Recently, both the Pope that some prelates have particularly emphasized the principle of religious freedom, a principle that even for a laymen is certainly crucial. A recent interview of Archbishop Mamberti published by the website of Vatican Radio, “Bishop Mamberti on judgments of the European Court of Human Rights: threatened freedom of religion and conscience” points out that the European Court has begun to recognize the rights of the Catholic Church in its relations with the States and with the individuals on the basis of the principle of religious freedom. One of the cases he cited in the article is “Fernández Martínez v. Spain”.
On 15 May 2012 the court in Strasbourg has issued the ruling in Martínez Fernández v. Spain (no. 56030/07). In the judgment, the court, by six votes to one, legitimated the decision of the Spanish episcopate not to renew the contract to a teacher, married priest and activist of the Movement (Pro celibato Opcional) to promote optional celibacy of the priests, because in this case, “has to be followed the principle of religious freedom protected by the CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION”
In Spain (as in Italy), teachers of religion in public institutions are State employees appointed on the nomination and approval of the local bishop, who has the power to revoke or not renew this agreement, being so public institute employer bound by the decision of the bishop. The Court considered that the main issue raised by the case is whether the State was required to give precedence to the applicant’s right to respect for his private life (art. 8 of the European Convention on Human Rights) on the alleged right of the Catholic Church to refuse to renew his contract. In this case, the Court considered that “this case is strictly religious, even if the applicant is an employee of the State.”
In fact, the Court’s decision is formally unexceptionable, although it is based on an assumption that is highly immoral i.e. the right granted by the Concordat between the Holy See and Spain according to which the Catholic Church is entitled to appoint and dismiss teachers at its discretion in a state school for a teaching that, for explicit recognition of the Court, is strictly related to a particular religious denomination, despite its being mandatory. The teaching in a State school of a discipline related to a particular religious denomination is not an exercise of religious freedom, but is rather an obvious wound inflicted on freedom of other religions. The problem arises in the same way in Italy.
What is meant by “religious freedom”? Religious freedom is the freedom of the Catholic Church or the freedom of all religions on the same level? In other words, it is permissible freedom without equality? Are Concordats that grant privileges to a single Church a permissible exercise of religious freedom or are a blatant violation of equality as necessary corollary of the religious freedom of others?
As the issue mentioned by Archbishop Mamberti is about Spain, we have to remember that Spain and the Holy See are bound by the Concordat signed in 1953, I quote a few items:
Roman Catholic Apostolic Religion continues to be the only religion of the Spanish nation and is entitled to the rights and prerogatives in accordance with the Divine Law and Canon Law.
In accordance with the concession of the Popes St. Pius V and Gregory XIII, the Spanish priests will raise daily prayers for Spain and for the Head of State [then FRANCISCO FRANCO], according to the traditional formula and the requirements of the Sacred Liturgy.
1. The Spanish State guarantees the teaching of the Catholic religion, as ordinary matter and compulsory in all educational institutions at all levels, both state and non-state actors.
Shall be exempt from such teaching the children of non-Catholics, at the request of a parent or legal guardian.
2. In the State primary schools the teaching of religion shall be provided by the teachers, unless, by the Ordinary (the Bishop), is not made opposition to any of them for the reasons to which it relates can. 1381 paragraph 3 of the Code of Canon Law. Will be given also to the pastor or his delegate with regular catechetical lessons.
3. In the state Intermediate Education Centers the teaching of religion shall be provided by priests or religious teachers, alternatively, by secular professors, appointed by the competent civil authority on a proposal from the Ordinary.
In the case of military schools the proposal will be up to the Castrense (military).Vicar General
4. – omissis –
5. The teaching of religion in universities and similar centers will be taught by priests in possession of academic degree of Doctor, awarded by an ecclesiastical university, or equivalent in the case of religious Order. Passed the test of teaching ability, their appointment will be made on a proposal from the Ordinary.
6. Professors of religion, appointed in accordance with the provisions of the numbers 3, 4 and 5 of this Article, shall enjoy the same rights as other teachers and will be part of the teaching staff of the center of where they are.
They will be removed upon the request of the diocesan ordinary for any of the reasons contained in the above-mentioned can. 1381 paragraph 3 of the Code of Canon Law.
The diocesan Ordinary must first be heard when removing a professor of religion is considered necessary by the school responsible for teaching or disciplinary reasons.
7. Professors of religion in non-state schools must be equipped with a special certificate of competence issued by the Ordinary.
The revocation of this certificate deprives without doubt the teacher of the possibility of teaching religion.
8. Religion programs for both state and non-state schools will be determined in agreement with the competent ecclesiastical authority.
For the teaching of religion can be adopted only textbooks approved by the ecclesiastical authority.
I wonder if the Concordat Church-Spain is really an exercise of freedom of religion or is rather the legalization of a certain type of religious freedom of the Catholic Church detrimental to equality, i.e. to the same religious freedom of other faiths. Evidently the principle of religious freedom, as the Catholic Church understands it, is compatible with systems privileges granted by Concordats. Even the European Union keeps itself away from addressing issues of this kind, but in the name of religious freedom is still opposed the recognition of the fundamental rights of equality that the same CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION explicitly protects.
TITLE III – EQUALITY
Article 20 – Equality before the law
Everyone is equal before the law.
Article 21 – Non-discrimination
1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.
Unfortunately, a Concordat is more important than these principles.