Il diritto dell’individuo a professare la credenza o la religione di sua scelta è proiettato, anche se con dei limiti, nel campo delle relazioni legali pubbliche e private. L’impatto della libertà religiosa sull’ordine sociale è aumentato in Spagna a causa del multiculturalismo della nostra società derivato dal fenomeno migratorio. La coesistenza di diversi modelli di vita provenienti da diversi Paesi e culture ha dato origine, nel quadro del lavoro, ad una dottrina giurisprudenziale armonizzata basata sulla ragionevole accomodazione tra la libertà di impresa e la libertà di credo. Tuttavia, questa dottrina è applicata nel quadro della sicurezza sociale?; la libertà religiosa ha qualche virtualità in quest’area? Anche se in un primo momento potrebbe sembrare di no, la recente posizione dei tribunali sull’ordine pubblico, attenuata in relazione alla pensione di vedovanza in caso di poligamia, solleva dubbi al riguardo. Nel campo della previdenza sociale, la collisione tra l’ap­plicazione della legge personale dello straniero e i diritti costituzionali fondamentali riconosciuti in Spagna viene risolta senza ricorrere a ponderazioni o ragionevoli teorie sulla sistemazione, ma l’effetto indiretto della poligamia sulla pensione della vedova ci obbliga a considerare, in ogni caso, se questo modello familiare deriva dalla libertà religiosa o dalla mera interpretazione giudiziaria delle norme del diritto internazionale pubblico, senza dimenticare che la sua analisi deve essere condotta sulla base della corretta comprensione del diritto alla libertà, alla dignità e all’uguaglianza tra donne e uomini che governa le società democratiche.

SOMMARIO:

1. Introduction - 2. The regulation of religous freedom in Spain: its application in the social order - 3. The impact of European and Spanish judicial doctrine on religious freedom in the social and labour order - 4. The impact of religious freedom in the framework of Social Security - 5. The impact of polygamy on the recognition of a widowhood pension and other social benefits derived from a polygamous worker - NOTE

1. Introduction

The worldwide emergence of the migratory phenomenon of the last few decades and the multicultural reality that has emerged from it has made the right to religious freedom a basic presupposition for achieving a new global order in which the coherence, respect and integration of human rights is the foundation of the same in both the public and private spheres. Immigration has fostered the encounter between very different cultures and the need to establish mechanisms for peaceful coexistence. In Spain, for example, there has been a strong immigration for decades [1], being that of Islamic origin the one that has most convulsed the system of constitutional values of our country, especially with respect to the principle of equality between men and women (employment, working conditions, marriage, public sphere, etc.). The right to religious freedom allows tolerance and coexistence between individuals with different beliefs but, like any right, it is subject to limits, especially within the framework of a subordinate working relationship and the rights deriving from the exercise of a professional activity. Such limits, however, have undergone an important evolution due to the recent doctrine of the European Court of Human Rights (ECHR, from now on) and the Court of Justice of the European Union (CJEU, from now on), since they must no longer only look after the business interest but, on the contrary, must lead to a reasonable accommodation that “obliges the company to make a sufficient effort to adjust the work activity to the religious fact” [2]. It falls, therefore, on the employer the burden of demonstrating the effort made in its productive organization in order to achieve respect with the religious belief of the worker, leaving definitively overcome the previous position that understood that the penalty for breach of obligations under the contract of employment did not involve an attack on the religious freedom of the worker to be able to achieve that respect with the search for a new job [3]. This advance in the protection of freedom of belief in the workplace is also accompanied by a new judicial criterion in matters of Social Security related to a specific type of family organization existing in Muslim Confession countries – and in some other less numerous religions such as, for example, the Mormon religion on which there are no judicial pronouncements in our country –. Specifically, we are talking about polygamy [continua ..]

2. The regulation of religous freedom in Spain: its application in the social order

The Spanish Constitution of 1978 (henceforth, CE) recognized the right to religious freedom in its article 16 stating that “1. The ideological, religious and religious freedom of individuals and communities is guaranteed without any limitation, in its manifestations, other than that necessary for the maintenance of public order protected by law. 2. No one may be compelled to make statements concerning his ideology, religion or beliefs. 3. No confession shall have the character of a state. The public authorities shall take into account the religious beliefs of Spanish society and shall maintain the consequent relations of cooperation with the Catholic Church and other confessions”. This precept is considered a fundamental right [4], which is why it enjoys a special legal protection –appeal of protection before the Constitutional Court– and must be regulated by an organic law. In this sense, the LO 7/1980, of July 5, of Religious Freedom (LOLR, in ahead), guarantees such fundamental right and indicates in its article 3, that “the exercise of the rights derived from the religious freedom and of cult has like only limit the protection of the right of the others to the exercise of their public freedoms and fundamental rights, as well as the safeguard of the security, of the health and of the public morality, constituent elements of the public order protected by the Law in the scope of a democratic society”. The Article 7 LOLR adds that “the State, taking into account the religious beliefs existing in Spanish society, may establish cooperation agreements or conventions with the Churches, Confessions and Religious Communities registered in the Register which, due to their scope and number of believers, have reached notorious roots in Spain”, after approval by law of the General Corts. Among such agreements are those made with the Catholic Church (Agreements of 3 January 1979, which are considered International Treaties) [5], evangelical churches [6], Jewish communities [7], and Muslim communities [8], without prejudice to the existence of other religious communities that, despite not having agreements with the Spanish State, may enjoy generic rights recognized in national and international standards [9]. Due to their importance for this work, it is interesting to point out that the aforementioned Agreements refer to the labour rights of their faithful, as is the case, for example, [continua ..]

3. The impact of European and Spanish judicial doctrine on religious freedom in the social and labour order

Democratic societies conceive the right to religious freedom as a basic pillar of the same [23], having recognition of this right at the national [24] and supranational levels [25]. The doctrine of the courts of justice of different jurisdictional orders and spheres of action has an important reflection in the construction of the system of guarantees established in the matter. Thus, within the framework of the subordinate working relationship, the impact of the judicial doctrine on religious freedom can be clearly seen in the varied and recent pronouncements of the Constitutional Court, the ECHR and the CJEU. In Spain, the judicial doctrine on religious freedom exercised within the framework of the employment contract can be analysed from three different perspectives: the first, from the principle of non-discrimination on the grounds of religious convictions [26]; the second, through the exercise of the right to conscientious objection which would allow the worker, where appropriate, to disobey company orders (ius resistentiae) [27]; and, thirdly, to defend the right to religious freedom both in its positive and negative aspects, i.e. when the worker suffers interference in this right (prohibition of the use of religious symbols) [28] or when he needs to remove obstacles and alter working conditions in order to preserve the right to religious freedom (obtain permits or religious work breaks) [29]. A novel perspective of judicial analysis is found in the framework of collective bargaining since, in some sectors of activity where immigration is very visible, a conventional regulation is taking place that tries to adapt to the religious convictions of workers [30], demonstrating that collective autonomy is a suitable channel to adapt business needs to the religious convictions of workers but that it is not free of conflicts. In the supranational sphere, the doctrine of the courts of justice has also been pronounced on several occasions. Thus, the position of the CJEU can be seen, for example, in relation to the use of the Islamic veil in the company, in the Achbita v. G4S Secure Solutions Case in Belgium [31], or the Bougnaoui v. Micropole Universe Case in France [32]; in relation to access to employment, in the Vera Egenberger Case in Germany [33], and, with regard to rest days, in the recent Cresco Investigation GmbH and Markus Achatzi Case in Austria [34]. For its part, in the context of the [continua ..]

4. The impact of religious freedom in the framework of Social Security

The impact of religious freedom in the framework of Social Security has not been analyzed either doctrinally or judicially because, from the outset, its guiding principles would make the direct or indirect violation of the right to religious freedom unviable and, furthermore, the same criteria cannot be applied as in interprivate relations. Thus, for example, the classification of the worker in one Social Security system or another or the obligation to pay contributions derive from compliance with the regulations relating to the exercise of a professional activity as a self-employed person or as an employee, dealing, where appropriate, with a vertical conflict and not horizontal or between individuals. It does not, therefore, imply a collision between the interests of individuals, but rather the claiming of a right to a public body subject to the same principles as any Public Administration. The public and universal nature of Spanish Social Security, which protects citizens against certain social risks, does not tolerate the application, on the basis of religious beliefs, of weighting theories between the interests of workers and the public Social Security system. It should be noted, however, that in the United States of America the possibility has been raised that employers exclude the coverage of contraceptive methods from collective insurance made to their workers based on the religious belief of the owners [40]. This insurance which, over and above the enormous distances, would be equivalent in our system to a sort of voluntary improvement in Social Security does not actually have a direct effect on what we are proposing, since direct improvements in public Social Security benefits, whether managed directly by the employer or through collective insurance or pension plans and funds, do not actually have the consideration of Social Security in the strict sense, but form part of the so-called complementary Social Security [41]. These complements to Social Security must be subject, in any case, to the fundamental principles and rights contemplated in the Spanish Constitution of 1978, notably the principle of equality and non-discrimination and, of course, to other fundamental rights which, such as religious freedom, could be affected. This presupposes that voluntary improvements in Social Security could be affected by the theory of reasonable accommodation between the interests of worker and employer. Nevertheless, it is within the framework [continua ..]

5. The impact of polygamy on the recognition of a widowhood pension and other social benefits derived from a polygamous worker

Multiculturality has come to our country by becoming a receiver of immigrants, giving the circumstance that in the territory of origin of some of them polygamy is a permitted figure. However, despite being a figure prohibited by our legal system and contrary to the constitutional principles that guide our coexistence, it is recognized certain peripheral legal effects such as the granting of the widowhood pension to the surviving spouses of the polygamous worker. In order to be able to access a widow’s or widower’s pension in Spain, the existence and validity of a matrimonial bond will be a necessary, but not excluding, requirement, hence the issue raised by the problem of polygamous marriages in Spain since, according to their personal law, we would be facing fully valid marriages. There are even certain bilateral agreements signed by Spain in the field of Social Security which regulate the terms under which this pension must be granted and who will be the possible beneficiaries of it. But what about polygamous marriages in which there is no applicable agreement? What method should be applied for the distribution of the widowhood pension to the concurrence of beneficiaries? All these questions will be answered, and it will be made clear that the lack of regulation in this respect will oblige the courts to clarify, through their different pronouncements, a situation that the legislator has not foreseen [46]. Polygamy (rectius, polygyny) [47], as a system of social and family organization of certain religious groups that allows men to have simultaneously a plurality of wives, is traditionally admitted, although with exceptions, in Islamic countries under the protection of the legal basis that the Koran grants it [48]. Thus, the Koranic tetragamy is found in verse 4:3, where it is established: “Then, marry the women you like: two, three or four. But if you are afraid that you will not act justly, then with only one or with your handmaids. In this way, you will better avoid doing evil” [49]. In any case, the question arises as to whether polygamy really has a religious foundation or, on the contrary, has a merely cultural character, on the basis of the difficulty that in certain countries religion permeates legislation and that rights are subordinated to compatibility with Islamic law. Thus, on the one hand, there are those who are inclined to include polygamy within the scope of religious freedom [50], [continua ..]

NOTE