From Libertas Ecclesiae to Religious Freedom

LAW AND RELIGION IN PORTUGAL: FROM LIBERTAS ECCLESIAE TO RELIGIOUS FREEDOM

JONATAS E. M. MACHADO

I. LIBERTAS ECCLESIAE Due to the influence, during the centuries, of the Catholic Church in the Iberian Peninsula, the history of the relationship between Church and State, law and religion in Portugal has been very much influenced by the theological doctrine of libertas ecclesiae. According to this doctrine, that relies on Augustine and Aquinas as two of its most prominent defenders, only absolute truth has a right to existence. Since the Catholic Church is the truth, then only the Catholic Church has the right to exist. All other forms of religious expression are considered erroneous, and thus should() not be tolerated. This, of course, unless prudential reasons recommend toleration for pragmatic considerations. The Respublica Christiana of the Middle Ages was fairly successful in defining politics and law in religious terms. Society was structured according to religious notions of community, tradition, authority and hierarchy. The individual was seen merely as a part of the communitarian whole objective truth, as proclaimed by Church authorities, was to be protected by secular coercive means from all forms of error1. Only Truth had a right to expression. Error had no right to existence. Objective truth thus defined was seen as an absolute limitation on public discourse and religious dissent: Roma locuta, causa finita. Once Rome spoke, the discussion was over. As John Rawls notes, the Inquisition was a natural result of this dominant theological-political conception2. This understanding had a profound impact on the regulation of religion in Portugal. Even after the extinction of the Inquisition, in the course of the liberal revolution of 1820, there were a large number of rules and

1 St. Thomas Aquinas Summa Theologica, III, Westminster, Maryland, 1948, 1220; see, in general, FLEINER-GERSTER, Th., Allgemeine Staatslehre, 2ª ed., Berlin, 1995, 39 ff.; Rose Staps, Bekentnisfreiheit- ein Unterfall der Meinungsfreiheit?, Kehl, 1990, 121 ff. 2 RAWLS, J., Political Liberalism, New York, 1993, 37; MACHADO, J., Liberdade Religiosa numa Comunidade Constitucional Inclusiva, Dos Direitos da Verdade aos Direitos dos Cidadãos, Coimbra, 1996, 30 ff. 128 J. E. M. MACHADO regulations, some of which came to be included in the Concordat of 1940, that forbade the free exercise of any religion other than Catholicism to the Portuguese citizens, thus limiting their freedom to change their religion (an exception was made for foreigners), that criminalized proselytism, that established the censorship of all the books that were contrary to Catholic dogmas, that forbade the building of places of worship with the external shape of a temple, that made Catholic teaching mandatory in public schools and youth education centres, that incorporated Catholic clergy in the military, health and prison structures, that severely restricted the exercise of freedom of assembly and association on the part of non Catholic religious groups, that discriminated non Catholic religious groups, their members and religious ministers in matters such as taxation. Up until the Constitution of 1976, that followed the Portuguese Car- nations Revolution, the Catholic Church was considered alternatively the religion of the Portuguese State or that of the Portuguese Nation, this way legitimizing all forms of overt or covert political, legal, social and cultural discrimination of non-Catholics. These were seen as outsiders, not full members of the political community. As noted before, this situation represented a limitation on the rights of Catholics as well, since it created a negative incentive for them to change their religion. A change in religion by a Catholic would result in immediate discrimination and second-class citi- zenship. It is obvious that any religious denomination, be it Catholic, Ortho- dox or Protestant that promotes these types of measures that systematically persecute and discriminate against others, will easily become the dominant religious group. One should note that in countries that are not free and democratic societies, religious dominance goes very often hand in hand with abuses of dominant position. As Richard Posner points out, “when religious zealots succeeded through the persecution of dissenters in enforcing uni- formity of belief, they do not infer that consensus is the result of persecution. They infer that theirs is the true faith3”. This has surely been the case in Portugal, at least until the Constitution of 1976.

II. LIBERAL CONSTITUTIONALISM AND RELIGIOUS FREEDOM Before I discuss the Portuguese constitution, I would like to say a few words about the way liberal constitutionalism challenged the doctrine of libertas ecclesiae. This is because the modern liberal view of religious freedom pervades Portuguese democratic constitutionalism. It must be

3 POSNER, R., Overcoming Law, Cambridge, Mass., 1995, 58. LAW AND RELIGION IN PORTUGAL 129 stressed that dissenting religious speech was crucial to the development of modern liberal thought4. Some of the most enthusiastic defenders of freedom of speech were religious dissenters. John Milton, the personal secretary of Oliver Cromwell, is a classic example. It was in the midst of political and religious turmoil that he wrote, “though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously, by licensing and prohibiting to misdoubt her strength. Let her and Falsehood grapple: whoever knew Truth put to the worst, in a free and open encounter5”. This perspective postulated a kind of Copernican revolution in political thinking, since from now on truth was not to be seen as the a priori limit of public discussion, but as one of its main purposes. One of the founders of modern liberal constitutionalism was John Locke. His ideas on natural rights, popular sovereignty, limitations on political power and separation of Church and State were a result of his strong belief in freedom of conscience and religion6. In his words7,: “a Church… (is) … a voluntary society of men, joining themselves together of their own accord in order to the public worshipping of God in such a manner as they judge acceptable to Him, and effectual to the salvation of their souls. I say it is a free and voluntary society”. A little further he says that “No man by nature is bound unto any Church or sect, but everyone joins himself voluntarily to that society in which he believes he has found that profession and worship which is truly acceptable to God.” Religion being a matter of personal conviction and choice, and not of coercion, Locke concludes, “In vain, therefore, do princes compel their subjects to come into their church communion under pretense of saving their souls”. For Locke it is clear that the principles of individual autonomy and consent are the bases of both religious and political life.

4 GILLESPIE, M. A., “The Theological Origins of Modernity”, Critical Review, 13, 1999, 1 ff., 14 ff.; ZIPPELIUS, R., “Die Entstehung des democratischen Rechtsstaates aus dem Geiste der Aufklärung”, Juristen Zeitung, 23, 1999, 1126; BROCKER, M., Die Grundlegung des Liberalen Verfassungsstaates, Von den Levellern zu John Locke, München, 1995, 89 ff.; STOURZH, G., Wege zum Grundrechtsdemokratie, Studien zur Begriffs- und Institutionengeschichte des liberalen Verfassungstaats, Wien, 1989, 175 ff. e 177 ff. 5 MILTON, J., Areopagitica, A Speech for Liberty of Unlicensed Printing (1644). 6 RICHARDS, D.A.J., “Revolution and Constitutionalism in America”, in ROSENFELD, M., (ed.), Constitutionalism, Identity, Difference and Legitimacy, Theoretical Perspectives, Durham, 1994, 85 ff.; EUCHNER, W., “Individuelle und politische Macht: Der Beitrag John Lockes im Vergleich zu Hobbes und Spinoza”, in GEBHARDT, J. and MÜNKLER, H. (ed.), Bürgerschaft und Herrschaft, Baden-Baden, 1993, 117 ff. 7 LOCKE, J., A Letter On Toleration, KLIBANSKY, R. (ed.), Oxford, 1968, 71. 130 J. E. M. MACHADO

For him, freedom of expression should be seen, most of all, as a corollary to these principles, regardless of subject matter. In his words, “It is one thing to persuade, another to command; one thing to press with arguments, another with decrees. The latter is the business of the civil power; the former human goodwill can do. Every man is entitled to admonish, exhort, convince another of error, and lead him by reasoning to accept his own opinion8”.

III. FREEDOM OF RELIGION IN PORTUGUESE CONSTITU- TIONAL LAW Liberal ideas made their entrance into Portugal in the beginning of the nineteenth century, in the context of the French invasions of the Iberian peninsula. The landmark of change was the short-lived Constitution of 1822. Much could be said about the Portuguese political and constitutional history of the nineteenth and twentieth centuries. Generally speaking, one can describe it, in the same way as in other European countries, as an ideological and constitutional struggle between liberal and anti-liberal forces. The final triumph of modern liberal constitutional ideas was only possible through the Constitution of 1976. The relevant constitutional question now in the field of religion is: what must be done to stop existing situations of religious discrimination and to minimize current effects of past discriminations? As far as religious freedom is concerned, this Constitution represented a paradigm shift in the relationship between law and religion. From a constitutional law perspective there is no such thing as the rights of truth. Religious freedom is not equal to libertas ecclesiae any more, since it is not a theological or ecclesiastical doctrine, but a fundamental right based in a broad constitutional concept of human dignity and equal freedom. The rights of truth have been displaced in favor of the rights of free and equal citizens. These are the current foundations of the Portuguese constitutional law of religion. This was made clear by Portuguese constitutional law doctrine in the course of the years that followed the enactment of the Portuguese constitution9.

8 LOCKE, J., A Letter On Toleration, KLIBANSKY, R. (ed.), Oxford, 1968, 69. 9 JORGE, M., Manual de Direito Constitutional, IV, 2ª ed., Coimbra, 1993; DE SOUSA E BRITO, J., La Situation des églises et des communautés réligieuses, Milano, 1994; GOMES CANOTILHO, J.J., MOREIRA, V., Constituição da República Portuguesa Anotada, 2ª ed., Coimbra, 1993, 241 ff.; CANAS, V., “State and Church in Portugal”, State and Church in the European Union, ROBBERS, G. (ed.), Baden-Baden 1996, 259-278; PEREIRA, J.S.T., “La Liberté Religieuse au Portugal dans lés anées 90”, European Journal for Church and State Research – Revue européenne des relations Églises-État, 2(1995), 95. LAW AND RELIGION IN PORTUGAL 131

However, the regulation of religious activity is very much influenced by the presence of history and by the power of the dominant religion. That is why, even after the Constitution of 1976 it took more than twenty-five years for the Parliament to pass a new law on religious freedom that revoked an outdated and restrictive one from 1971. The new Religious Freedom Law (RFL), proposed by former socialist Minister of Justice Vera Jardim, was largely the result of these doctrinal developments as well as the work of former justice of the Portuguese Constitutional Court, Mr. Sousa e Brito. It was published in the Portuguese official journal in June 200110.

1. Fundamental rights in general Before going into an analysis of the constitutional and legal provisions directly related to the protection of religious freedom, it is important to consider the general constitutional framework of fundamental rights. The Portuguese Constitution is built upon the value of respect for human dignity. This value is the foundation of the general principles of human freedom and equality. This means that all fundamental rights are equal rights of free and equal citizens, worthy of equal concern and respect. It also means that constitutional protection of human rights is a matter of principle, not a matter of social power or privilege. In the words of Cass Sunstein, “if naked preferences are a legitimate basis for government action, it is sufficient that a particular group has been able to assemble the political power to obtain what it seeks11”. According to art. 16º/2 of the Portuguese Constitution, “The provisions of this Constitution and of laws relating to fundamental rights shall be construed and interpreted in harmony with the Universal Declara- tion of Human Rights”. Article 1º of the RFL reinforces this connection to the Universal Declaration and to the international law of religious freedom. Particularly important, in this regard, is article 9º of the Euro- pean Convention of Human Rights and the interpretation thereof made by the European Court of Human Rights. This means that religious freedom is considered a universal human right, premised in human moral and rational autonomy, and not an ethnic or group right, nor a religious doctrine of this or that particular religious group. Inside the genus generalissimum of fundamental rights Portuguese constitutional law

10 Law nº 16/2001, of 22-6. 11 SUNSTEIN, C., The Partial Constitution, Cambridge, Mass., 1993, 28. 132 J. E. M. MACHADO distinguishes between, on the one hand, rights, freedoms and guarantees (more or less identified with classical civil and political rights) and, on the other hand, economic, social and cultural rights. Freedom of religion is subsumed within the category of rights, freedoms and guarantees. These rights are directly applicable and binding to both public and private entities12. Their restriction can only be made by parliamentary law or by a government legislative act duly authorized by a parliament’s enabling law, when required by the need to protect some compelling constitutional right or interest. The restriction should be pro- portional to the end it desires to promote. It should also be general and abstract and it cannot be retroactive. Finally, it must protect the core content of the right whose exercise it wants to limit13. Underlying this constitutional regime is the notion, very dear to liberal constitutional law, that freedom should be the rule, and limitation of freedom should be the exception to the rule14. As such, the rights themselves should be broadly construed, and the their limitations clearly specified, carefully justified and narrowly interpreted15.

2. Freedom of religion a. Individual dimension Freedom of religion is primarily an individual right. Article 41º/1 of the Portuguese Constitution establishes that “freedom of conscience, religion and worship is inviolable16”. Article 1º of the RFL merely repeats this guarantee. This provision recognizes freedom of conscience as the background of freedom of religion and worship, as well as freedom of speech17. The inviolable character of these rights does not mean

12 Art. 18º/1 of the Constitution. CANOTILHO, Direito Constitucional e Teoria da Constituição…, cit., 436 ff. 13 Art. 18º/2/3 of the Constitution. CANOTILHO, Direito Constitucional e Teoria da Constituição…, cit., 450 ff. 14 VON ARNAULD, A., Die Freiheitsrechte und ihre Schranken, Baden-Baden, 1998, 110 ff. 15 ALEXY, R., Theorie der Grundrechte, Frankfurt-am-Main, 1986, 290 ff. e 309 ff.; CANOTILHO, Direito Constitucional e Teoria da Constituição…, cit., 1257 ff. 1201 ff. 16 CANOTILHO and MOREIRA, Constituição da República Portuguesa…, cit., 241 ss. 17 According to RAWLS, J., A Theory of Justice, Oxford, 1971 (1991), 210 ff., “equal liberty of conscience is the only principle that the persons in the original position would acknowledge”. Referring to the First Amendment free exercise and establishment clauses, Richards, Toleration and the Constitution…, cit., 140, states that “the clauses protect, I believe, a common background right of the inalienable right to conscience at different points of its political peril. Thus unifying concern gives each clause its proper weight and significance, and suggests ways in which implicit conflict shall be resolved”. LAW AND RELIGION IN PORTUGAL 133 that they cannot be limited, but it determines that any restrictions to those inviolable rights must be narrowly tailored to serve the protection of compelling constitutional rights and interests, and be subject to a strict scrutiny by the courts. Both the constitution and the new law prescribe that “no one shall be persecuted or deprived of rights or exempted from civil responsibilities or duties by reason of his or her convictions or religious observance18”. One important principle that controls the regulation of religion is the principle of tolerance, explicitly mentioned as such by the RFL19. This principle has nothing to do with old notions of tolerance of error by truth, but it means simply that conflicts of conscience and religious rights involving different individuals should be resolved on the basis of mutual respect, so that both rights are protected as much as possible, in pari materia, and not just one of them. The RFL guarantees, among others, the right to have, the right not to have, and the right to change one’s religious convictions, the right to act according to one’s convictions and to engage in public or private acts of worship. This includes the rights to religious assembly and association, as well as religious demonstration. According to the RFL no individual or collective form of religious exercise can be imposed on the individual, and privacy in matters of religion is to be protected20. This is an important limitation on both public state power and private religious power. Equally protected is the right to communicate one’s beliefs and to try to persuade others to accept them21. Actually, this right is protected by freedom of speech in general, which also includes, most obviously, the right to engage in religious speech and the right to speak about religion. The RFL also protects the right to religious information as well as the right to learn about and to teach about one’s religion22. A truly innovative provision is the one, which gives parents the right to name their children according to their religious beliefs23, a right that may be very important especially to the Islamic and Hindu communities in Portugal, since they lie outside the Judeo-Christian and Greco-Roman cultural roots that generate most of the Portuguese names.

18 Art. 41º/2 CRP; art.2º of Law nº16/2001. 19 Art.2º of Law nº16/2001. 20 Art. 9º of Law nº 16º/2001 21 Art. 8º of Law nº 16º/2001. 22 Art. 8º of Law nº 16º/2001. 23 Art. 8º/h) of Law nº 16º/2001. 134 J. E. M. MACHADO b. Collective dimension Individuals are inherently social. So is freedom of religion. Collective religious expression is a very important part of religious expression. The protection of an equal right of freedom of religion requires that constitutional law use broad concepts of religion and religious community that do not force a particular religious conception upon society at large24. Religion is generally related to the ultimate concerns of human life, from a perspective that is neither entirely naturalistic nor materialistic. In many cases it presumes the existence of a supreme being or a spiritual reality, but this is not always the case. Its distinction from ideology is in many cases more a matter of degree than of substance. It is particularly important to understand that “religious beliefs need not be acceptable, logical, consistent or comprehensible to others in order to merit (constitutional) protection25”. The “truth” of a religious doctrine is also irrelevant, from a constitutional law perspective26. A State of free and equal citizens is not in position of investigating religious truth. As the United States Supreme Court said, “In the realm of religious faith, as in that of political belief, sharp differences arise. In both fields the tenets of one man may seem the rankest error to his neighbor27”. The RFL explicitly states that the State cannot interfere in the definition of religious doctrine28. We take this to be the adoption of a religious question doctrine that sets negative boundaries on State action. From a constitutional law perspective, religion must be defined in a level of generality that affords protection to minoritarian, unfamiliar and unconventional beliefs29.

24 MACHADO, J., “Pré-Compreensões na Disciplina Jurídica do Fenómeno Religioso”, Boletim da Faculdade de Direito, LXVIII, 1992, 165 ff.; DAVIS, D.-H., “The Courts and the Constitutional Meaning of Religion: A History and Critique”, in WOOD, J. Jr. and DAVIES, D. (ed.), The Role of Government in Regulating Religion in Public Life, Waco, TX, 89 ff. 25 United States Supreme Court, Church of the Lukumi Babalu Aye 113, S. Ct. 2217 (1993). 26 In United States v. Ballard, 322 U.S.78 (1944), the United States Supreme Court has said that “courts may inquire into the sincerity of putatively religious beliefs, but not their accuracy or truthfulness”. 27 Cantwell v. Connecticut, 310, U.S. 296, 310 (1940). 28 Art. 4º/1 of Law nº16/2001. 29 ABRAHAM, H., Freedom and the Court, New York, 1977, 251 ff.; DAVIES, D., “The Courts and the Constitutional Meaning of ‘Religion’: A History and Critique”, in WOOD, J. Jr. and DAVIES, D. (ed.), The Role of Government in Regulating Religion in Public Life, Waco, TX, 1993, 89 ff. LAW AND RELIGION IN PORTUGAL 135

In the same way, to be worthy of constitutional protection a religious group need not have a set of dogmas or rites, an elaborated systematic theology, an institutional hierarchy, or any particular external attribute. It is enough that it has a sense of community based on a religious self- understanding30. The concepts of religion and religious community cannot be narrowly tailored to serve the competitive interests of the dominant and traditional religions in what some, reasoning by analogy, call the religious market31. Encompassing these broad concepts of religion and religious community, religious freedom, supported by the legal system and by the state’s coercion power, is in itself an important defence against the misuse of religious dogma to infringe upon the equal rights of both religious and non-religious individuals and groups. This is nothing more than the necessary corollary to the protection of individual freedom of conscience, equal rights and government neutrality in religious matters32. Religion is a forbidden ground for persecution and discrimination, a notion particularly relevant when discussing the constitutional and legal status of religious communities. However, in the light of this principle it is hard to understand the provision of art. 58º of the RFL, according to which, the provisions of the Concordat of 1940 between Portugal and the Holy See remain in force. This may strike us as an internal contradiction of the law, explicable only for political reasons. In my view, the best way to avoid this contradiction is to maintain that only those concordatarian provisions that can be rendered compatible with the principle of equal religious liberty, which is both a constitutional and international law principle, should be held applicable. All the others should be rendered null and void. In fact, this has been the approach generally followed by Portuguese constitutional doctrine.

30 TRIBE, L., American Constitutional Law, New York, 1988, 1179 ff.; MOTILLA, A., “Aproximación a la Categoria de Confession Religiosa”, Il Diritto Ecclesiastico, 1988, 175 ff.; WIELAND, J., “Die Angelegenheiten der Religioses Gesellschafft”, Der Staat, 10, 1986, 321 ff. 31 KELLY, D., “Free Enterprise in Religion, of How the Constitution Protects Religion and Religious Freedom”, in GOLDGWIN and KAUFMAN (ed.), How Does the Constitution Protects Religious Freedom?, Washington DC., 1987, 119 ff.; MCCONNEL, M. – POSNER, R., “An Economic Approach to Issues of Religious Freedom”, 56, The University of Chicago Law Review, 1989, 1 ff.; KLEIN, B., Konkurrenz auf dem Markt der geitigen Freiheiten, Berlin, 1990, 19 ff., 105 ff. 32 RICHARDS, D., Toleration and the Constitution, New York, 1986, 142 ff.; LISTL, J., “Glaubens-, Bekentnnis- und Kirchensfreiheit”, in LISTEL, J. and PIRSON, D. (ed.), Hand- buch des Staatskirchensrechts der Bundesrepublik Deutschland, I, Berlin, 1994, 449. 136 J. E. M. MACHADO c. Institutional dimension The RFL devotes special attention to the institutional rights of religious communities. These are instrumental to the protection of personal religious rights33. The present normative framework, after the enactment of RFL, allows for different degrees of institutionalization. First, it remains possible to form a religious association according to private law. This is still a viable option for any new religious movement that wants to start its work in Portugal. Besides freedom of association, it enjoys all other relevant constitutional rights and freedoms. It just has to follow the civil code provisions about democratic internal organization. Second, there is the possibility of registering specifically as a religious community. This is also a viable option to new religious movements. This allows for more internal freedom, since the religious community is able to abide by its own rules34. This second level of institutionalization grants access to public service broadcasting35 and also gives the possibility of teaching one’s religion in the public schools if there are a minimum number of students that require it. This act of registration also opens the door to important tax exemptions and benefits, including the fiscal deductibility of donations and the consignation of 0.5% of the personal income tax to a church or charitable organization of one’s choice36. If the State doesn’t answer a request for registration within a year, registration will be granted automatically37. It must be said that the LRF has com- manded the Government to regulate the registration of religious communities in sixty days38. As a “literalist” lawyer I interpreted those days as being true twenty-four hour days. Apparently, our Government has taken a more liberal approach, and has probably interpreted them has being equivalent to geological ages, because the law was approved in 2001 and this needed regulation is still to be enacted. This second level of institutionalization is more than enough to exercise most of the collective rights of religious communities, such as the right to slay animals for worship rituals, to use buildings for religious purposes, to develop activities that are complementary of their main religious purpose,

33 HESSE, K., “Die Selbstbestimmungsrecht der Kirchen und Religionsgemeinshaften”, Handbuch des Staatskirchensrechts der Bundesrepublic Deutschland…, cit., 521 ff. 34 Art. 22º of Law nº 16/2001. 35 Art. 25º of Law nº 16/2001. 36 Art. 32º of Law nº 16/2001. 37 Art. 40º of Law nº 16/2001. 38 Art. 69º of Law nº 16/2001. LAW AND RELIGION IN PORTUGAL 137 including commercial activities. It, also, gives religious communities a right to be heard in the making of zoning laws. Registration can be denied only to those communities who do not satisfy the legal requi- sites, who have given false information and those whose doctrines and principles violate the constitutional limits of religious freedom39. A third level of institutionalization is available for those religious communities that are certified to have a relevant connection to the country. The law speaks about being rooted in the country. Actually, the main point here is not so much having a strong connection to the country, but being able to offer a guarantee of stability in the dealings and long-term cooperation with the State40. This is the case when a registered religious community has had an organized presence in the country for more than thirty years, or for more than sixty years elsewhere41. This third level of institutionalization is a necessary condition for being able to perform legally recognized weddings42, for being represented in the Commission for Religious Public Broadcasting43 and the Religious Freedom Com- mission44, and for enjoying treaty-making capacity, that is, for being able to confessional agreements (Kirchenvertrag; intese) in matters of common interest with the Portuguese State45. These agreements will be substan- tively (if not formally) equivalent to the Concordat. A fourth level of institutionalization is the one for those confessions that sign an agreement with the State. At the present time only the Catholic Church has attained this level, but in the long term more religious groups may It is important to note that the exercise of constitutional fundamental rights is not dependent on entering in an agreement with the State. That would be unconstitutional, because there is not a right to celebrate such an agreement, and fundamental rights cannot be a function of social and political power. The Catholic Church is now renegotiating the Concordat. We will be careful to examine what results from that process, not just from the point of view of Portuguese constitutional law, but also from that of the international human rights law. For now, the level of secrecy in these negotiations seems too suspicious,

39 Art. 39º of Law nº 16/2001. 40 Art. 5º of Law nº16/2001. 41 Art. 37º of Law nº16/2001. 42 Art. 19º of Law nº16/2001. 43 Art. 25º/3 of Law nº16/2001. 44 Art. 56º of Law nº16/2001. 45 Arts. 43º ff. of Law nº16/2001. 138 J. E. M. MACHADO from the perspective of a post-Westphalian rights-based paradigm of international law. We should point out that the Catholic Church cannot use international law and the Concordat to gain a privileged position in domestic law, since the principle of religious equality and non-discrimination is a fundamental principle in domestic and international law. In art.2º of the Declaration on the Elimination of All Forms of Intolerance and of Dis- crimination Based on Religion or Belief, we read that “discrimination between human beings on the grounds of religion or belief constitutes an affront to human dignity and a disavowal of the principles of the Charter of the United Nations, and shall be condemned as a violation of the human rights and fundamental freedoms proclaimed in the Uni- versal Declaration of Human Rights and enunciated in detail in the Inter- national Covenants on Human Rights, and as an obstacle to friendly and peaceful relations between nations”. Along with the rights of religious communities, the RFL guarantees special rights to religious ministers. Ministers are defined as such by the religious communities, who also establish their religious rights and duties46. Among the rights of religious ministers we should notice the right to freely exercise their ministry, their right to professional secrecy in spiritual assistance, to social security, to be exempted from jury duty in courts, etc.47.

3. Separation of Churches and State To better understand the content and the scope of religious freedom in the Portuguese Constitution one has to consider the principle of separation of Churches and State, which is an important structural corollary to the right to equal religious freedom and equal freedom in gen- eral48. This principle is established in art. 41º/4 of the Portuguese Con- stitution49, and qualified as substantive limitation to its amendment in art. 288º/c50. The same principle is an important part of the RFL.

46 Art. 15º of Law nº16/2001. 47 Art. 16º of Law nº16/2001. 48 CANOTILHO and MOREIRA, Constituição da República Portuguesa…, cit., 244. 49 Art. 41º/4: “Churches and religious communities shall be independent of the State and are free to determine their own organisation and to perform their own cere- monies and worship”. 50 Art. 288º: “Laws revising this Constitution shall respect: c) The separation of the Churches from the State”. LAW AND RELIGION IN PORTUGAL 139

Although there may no be a direct correlation between religious freedom and separation of religious denominations and the State, this principle should be seen as a structural corollary of religious freedom in a free and democratic constitutional order, regardless of the fact that it may lead to different practical and institutional solutions in different historical and political contexts. The principle of separation can only perform its important substantive functions in the context of democratic constitutionalism under human rights and the rule of law. Interestingly enough, the Constitution speaks of Churches and religious communities, which is the proper thing to do, if one takes seriously the equal rights of different Christian and non-Christian religious communities. This explicit reference to religious pluralism can be interpreted as another conscious reaction against a constitutional tradition consisting of religious privilege and discrimination, as well as recognition that religious pluralism is naturally to be expected, sooner or later, in a constitutional regime of equal religious freedom. By separation of religious communities and the State we mean normative, institutional, symbolic and financial separation. This is fully compatible with relevant forms of acknowledgment and cooperation, in a normative framework built upon the promotion of public interest and the respect for the equal freedom of citizens and both religious and non religious communities. The RFL qualifies the principle of separation with a principle of cooperation between State and the more stable religious communities, in the realms of human rights, personal development, peace, freedom, solidar- ity and tolerance51. From a constitutional perspective, there seems to be no barrier to this principle of cooperation, since religious communities are a legitimate part of civil society and a strict separation seems to be undesirable, if not impossible. The important thing is to guarantee that cooperation between the State and religious communities is conducted within the limits of equal freedom, justice and impartiality. The principle of separation between religious communities and the State is not promised on a purely naturalist, rationalist and anti-meta- physical worldview. As such, separation is an expression of a general principle of State neutrality when it comes to different beliefs, ideologies, philosophies, political parties, corporations, civic groups, and so forth, the kind of neutrality that is both required and conditioned by the constitutional imperative of treating every individual with equal concern and

51 Art. 5º of Law nº 16/2001. 140 J. E. M. MACHADO respect (Ronald Dworkin)52. This is not a claim to absolute value neutrality, of course, but rather of the substantive and procedural neutrality that underlies the moral and normative option in favor of a free, fair, tolerant, democratic and open society53. Here we are dealing with benevolent neutrality54 and with a non-adversarial separation between Churches and State. Far from being interpreted as a sign of hostility towards religious sen- timent and experience, this principle should be better understood in the light of important constitutional substantive goals55. First, it removes State coercion or endorsement from the realm of religion, considering religious choice and conviction too important to be either proscribed or prescribed by the State. This is an important institutional guarantee for human autonomy56. Second, it prevents government from interfering within the proper subjects of the majority religion, generally for political reasons, as was the case in the Portuguese authoritarian government before the Carnations Revolution of 1974. Third, separation of religious communities and the State has the purpose of preventing the coalition between the State and the dominant religion in a way that threatens the equal dignity and freedom of members of minority religious communities57. It is thus a part of the structure

52 In this light, art. 43º/2 of the Portuguese Constitution establishes that “the State shall not plan education and cultural development in accordance with any philosophical, aesthetic, political, ideological or religious precepts.” 53 RAWLS, J., Political Liberalism, New York, 1993 (1996), 191 and 195 ff. explaining that “if a constitutional regime takes certain steps to strengthen the virtues of toleration and mutual trust, say by discouraging various kinds of religious and racial discrimination (in ways consistent with liberty of conscience and freedom of speech), it does not thereby become a perfectionist state of the kind Plato or Aristotle, nor does it establish the Catholic and Protestant states of the early modern period. Rather, it is taking reasonable measures to strengthen the forms of thought and feeling that sustain fair social cooperation between its citizens regarded as free and equal. This is very different from the state’s advancing a particular comprehensive doctrine in its own name”. 54 This expression comes from, MILLER, R.T. and FLOWERS, R.B., Toward Benevolent Neutrality: Church, State and the Supreme Court, 3ª ed., Waco, Tx., 1987. 55 SADURSKY, W., “Neutrality of Law Towards Religion”, The Sidney Law Review, 12, 1990, 441 ff.; SWAINE, L., “Principled Separation: Liberal Governance and Religious Free Exercise”, Journal of Church and State, 38, 1996, 595 ff. 56 WALZER, M., Spheres of Justice, A Defence of Pluralism & Equality, Oxford, 1983, 243 ff. 57 The United States Supreme Court put it eloquently, in its decision Engel v. Vitale, 421, 431 (1962), when it remarked that “when the power, prestige and financial support of Government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the officially approved religion is plain”. LAW AND RELIGION IN PORTUGAL 141 of undominated equality that should characterize liberal constitutional- ism58. History shows that persecution and discrimination, overt and covert, of minority religions, as well as of followers of the majority religion that decide to convert to one of such groups, are often based on this kind of state-church coalition59. Regulatory theory reminds us that “The State has one basic resource which in pure principle is not shared with even the mightiest of its citizens: the power to coerce60”. Preventing dominant religious denominations from controlling and abusing this power to enforce their own monopoly of grace (Michael Walzer) is an important structural component of equal religious freedom 61. A fourth reason for the separation of Church and State has to do with the preservation of an “uninhibited, robust and wide open” sphere of public discourse, in which every subject, doctrine, worldview, theory and opinion can be thoroughly debated and cross-examined. Robert Post suggests “the concept of public discourse requires the State to remain neu- tral in the ‘marketplace of communities62”. In fact, one of the purposes of freedom of religious speech is to secure the possibility of the emergence of new beliefs and new religious communities that can challenge existing ones. Among other things, this should be seen as a demand of fair- ness to future generations63. In this sense, separation of Churches and State is a precondition of the kind of free and fair competition between

58 ACKERMAN, B., The Future of the Liberal Revolution, Yale, 1992, 7 ff. 59 In Everson v. Board of Education, 330 U.S. 1, 9 (1947), the United States Supreme Court recalls that “with the power of Government supporting them, at various times and places, Catholics had persecuted Protestants, Protestants had persecuted Catholics, Protestant sects had persecuted other Protestant sects, Catholics from one shade of belief had persecuted Catholics of another shade of belief, and all of these had from time to time persecuted Jews”. See, in general, HOLLAND, R.A., “A Theory of Establishment Clause: Individualism, Social Contract in Identifying Threats to Religious Liberty”, 80, California Law Review, 1992, 1599 ff. and 1658 ff. 60 STIGLER, G.J., “The Theory of Economic Regulation”, Bell Journal of Economics & Mgmt Science, 2, 1971, 4. 61 This applies in general to the different domains of regulation of private activities and concentrations of power. POSNER, R., “Natural Monopoly and its Regulation”, 21, Stanford Law Review, 21, 1969, 548 ff. and 620 ff. 62 POST, R., Constitutional Domains, Democracy Community, Management, Cambridge, Mass., 1995, 139 ff. 63 RAWLS, J., A Theory of Justice, Oxford (1991), 205 ff.; BROWN WEISS, E., In Fair- ness to Future Generations, Tokyo, 1989 (1992), 40 ss. In this same vein, Imannuel Kant stated that “It is absolutely impermissible to agree, even for a single lifetime, to a permanent religious constitution which no one might publicly question”, “What is Enlightment?”, Kant’s Political Writings, REISS, H., (ed.), Cambridge, 1970, 57 ff. 142 J. E. M. MACHADO religious communities that is required by human freedom and equality64. In the words of Justice Frankfurter, “compelling belief implies denial of opportunity to combat it and to assert dissident views”65. This is particularly important when one deals with matters concerning freedom of religious speech and freedom of speech about religion. To succeed in its substantive ends, this principle must be complied with both de jure and de facto.

4. The Commission for Religious Freedom The RFL has established a Commission for Religious Freedom that has the responsibility to monitor the enforcement of this law66. It is an independent and consultive body to assist the Parliament and the Govern- ment in religious affairs. This Commission is not yet in operation. It is not a regulatory agency for the religious market, although in some situations it may look like one. Its main functions are to supervise the appli- cation of the law and to make relevant recommendations and the development of the law of religion in Portugal. It is also responsible for the scientific study of religious communities. This function sounds a bit odd, since universities seem to be better suited to perform this task. Actually, the Commission is entitled to ask for the help of other institutions, including universities. Much will depend on how the Commission per- forms this task. Among other things this Commission will give advice on the draft articles of the agreements between the State and the different religious communities, the existence of a relevant connection between those communities and the State67. It also gives advice on the registration of religious denominations and may even lead a public hearing on hard cases68. From a market theory of religious regulation this raises many doubts, since existing religions are called on to decide on the market entry of new ones. This may go against the principle of impartiality of government in relation to different citizens and groups. The Commission also gives advice on the composition of the Commission for Religious Public

64 MCCONNELL, M. and POSNER, R., “An Economic Approach to Issues of Religious Freedom”, The University of Chicago Law Review, 56, 1989, 1 ff. 65 Dissenting opinion in Virginia State Board of Education v. Barnette 319 U.S. 624 (1943). 66 Art. 52º ff. of Law nº 16/2001. 67 Art. 54º of Law nº 16/2001. 68 Art. 38º/2 of Law nº 16/2001. LAW AND RELIGION IN PORTUGAL 143

Broadcasting and on the inscription of religious communities, if the com- petent register service asks for that advice. The composition of the Com- mission has been a matter of controversy, although many of the non- Catholic religious communities decided to accept it, in order not do delay the passing of the law69. The Commission includes members appointed by the Government and by different religious denominations. The stated objectives of the composition are pluralism and State neutrality. However, especially problematic is the fear that there will be an excessive number of Catholics in the Commission. Explicitly, the RFL mentions two Catholics nominated by the Portuguese Conference of Catholic Bishops, but there is the fear that more will be appointed by the Government since Catholics are the overwhelming majority in Portugal. The problem of an inbalance favoring Catholics is real, considering that this Commission will mostly deal with non-Catholic religious communities.

IV. CONCLUSION The passing of the RFL was a very important development in the Por- tuguese legal system. Although some solutions may be controversial and need future revision, the fact is that for the first time the Portuguese leg- islator has shown a special sensibility towards the legal problems facing non-catholic citizens and religious denominations. At the same time, it has made an honest and good faith attempt to accommodate different forms of religious belief and expression existing in and to promote the constitutional substantive ends of equal freedom and State neutrality and impartiality in the field of religion. These goals point to the correction of current situations of religious discrimination as well as to the mini- mization of the present effects of past discriminations. Portuguese constitutional law is not premised on naturalistic, anti-religious or anti-cler- ical assumptions. On the contrary, it values religion as an important dimension of human life. It just wants to assume a reconstructive role in Portuguese society, so as to allow the enjoyment of every constitutional right to all citizens, regardless of their particular religious convictions and practices70. Prima facie, the RFL may be considered a valuable means to achieve that end.

69 Art. 56º of Law nº 16/2001. 70 SCHACHTER, J.S., “Metademocracy: The Changing Structure of Legitimacy in Statutory Interpretation”, 108, Harvard Law Review, 1995, 593 ff.