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The Catholic Church and the Socialist Government in Spain: Irreconciliable Differences?

  • Javier García Oliva (a1)

The last general elections in Spain took place on 14 March 2004. The Socialist Party took over power after eight years of José María Aznar's rightwing conservative government. According to some commentators, José Luis Rodríguez Zapatero became the new Prime Minister unexpectedly. We should bear in mind that only three days earlier, on 11 March, horrendous terrorist attacks in Madrid had shocked the international community.

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1 Also a lecturer at the University of Wales, Bangor. I would like to thank Professor Doe, Director of the Centre for Law and Religion at Cardiff Law School, and Professor Sara Acuna, Dr Rocío Domínguez and Dr Juan Antonio Alberca de Castro, of the Department of Ecclesiastical Law at Cádiz University,

2 Spanish Constitution 1978, Art 16: ‘There shall be no State religion. The public authorities shall take the religious beliefs of Spanish society into account and shall in consequence maintain appropriate co-operation with the Catholic Church and the other confessions’.

3 Agreement of 28 July 1976, between the Holy See and the Spanish State; Instrument of Ratification, dated 4 December 1979, of the Agreement of 3 January 1979, between the Spanish State and the Holy See, concerning legal affairs; Agreement of 3 January 1979, between the Spanish State and the Holy See, concerning educational and cultural affairs; Agreement of 3 January 1979, between the Spanish State and the Holy See, concerning economic affairs; Agreement of 3 January 1979, between the Spanish State and the Holy See, concerning religious attendance of the Armed Forces and the military service of clergymen and members of religious orders.

4 The legal framework of religious education in the United Kingdom is very different from the Spanish situation. State schools are not bound to offer Catholic religion as an optional subject. In England and Wales, inter-faith religious education must be provided, but this subject is not taught from a denominational perspective. This subject focuses mainly on the sociological and cultural aspects of the religious dimension and even though it must reflect the majority Christian presence in British society, it must also take into account other religious traditions. See the Education Reform Act 1988, ss 2(1), 8(2), (3). The United Kingdom is a pluralistic society, and the legal response is respectful of this. In an increasingly pluralistic Spain, the British solution would certainly afford useful lessons.

5 Agreement of 3 January 1979, between the Spanish State and the Holy See, concerning education and cultural affairs, Article II, 1st paragraph.

6 Ibid Article II, 2nd paragraph.

7 Ibid Article III, 1st paragraph.

8 Ibid Article VII.

9 Interview with Juan Fernando López Aguilar, Minister of Justice, ‘La Mirada crítica’, Telecinco, 23 November 2004.

10 This law had been approved under the previous government, el Partido Popular, but because of the change of government in March 2004, its articles in relation to the teaching of religion have not come into effect. This framework was paralysed by the Real Decreto 1318/2004, de Nuevo Calendario de Aplicación de la Ley de Calidad.

11 ABC, 28 September 2004.

12 El Mundo, 28 September 2004.

13 El Mundo, 24 October 2004.

14 Left-wing priests, who were very antagonistic towards the dictatorship. They were clearly influenced by the open-minded doctrine of the Vatican Council II.

15 In the United Kingdom, with regard to same-sex partnership rights, the Civil Partnership Act 2004 received Royal Assent on 18 November 2004, and the first same-sex civil registrations are expected to take place by the end of 2005. Nowadays, gay and lesbian couples can have secure pension rights, will be exempted from inheritance tax and will be recognised as their partner's next of kin. The process had begun in June 2003 when the government published a consultation document. ‘Civil Partnership — a framework for the legal recognition of same-sex couples’ in England and Wales. On 30 September 2003, the Scottish Executive published a consultation paper on the devolved aspects of a civil partnership registration scheme for same-sex couples. On 31 March 2004 the government published the Civil Partnership Bill. There is no doubt that the plans of the Spanish government go far beyond the British model. In the United Kingdom, gay marriages simply do not exist. It is fair to highlight that many authors or politicians who oppose homosexual marriages in Spain are not against the legal recognition of same gender relationships and would welcome the British formula.

16 Anteproyecto de Ley de Modificatión del Código Civil en material de derecho a contraer matrimonio, 30 December 2004.

17 Fundamental Law, Article 32: ‘1. Men and women are entitled to marry on a basis of full legal equality. 2. The law shall regulate the forms of marriage, the age at which it may be entered into and the required capacity therefor, the rights and duties of the spouses, the grounds for separation and dissolution, and the consequences thereof’.

18 Europa Press, 18 December 2004.

19, 19 January 2005.

20 La Crónica de Hoy, 20 January 2005.

21 Mundo, El, 23 November 2004.

22 País, El, 24 January 2005.

23 Representative and Highest Diplomat of the Holy See in Spain.

24 País, El, 27 January 2005.

25 Europa Press 15 January 2005.

26 Prof Javier Martínez Torrón, at the Universidad Complutense de Madrid has written a very thorough article on this issue: ‘Matrimonios entre homosexuals: imitando a Procustro’, La Razón, December 2004.

27 See McCafferty, C, ‘Gays, transsexuals and the right to marry’, (2002) 32 Family Law, pp 362366;Benion, F, ‘Spouses, partners and parenting’, (1999) 149 New Law Journal, pp 17011703.

28 Spanish Constitution 1978, Article 16.3.

29 ABC 28 November 2004

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Ecclesiastical Law Journal
  • ISSN: 0956-618X
  • EISSN: 1751-8539
  • URL: /core/journals/ecclesiastical-law-journal
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