L'impatto della liberta' religiosa nel quadro del lavoro e della sicurezza sociale in Spagna
Inmaculada Marín Alonso, Associate Professor of Labour and Social Security Law at the University of Seville (Spain)
Carmen Solís Prieto, Assistant Professor of Labour and Social Security Law at the University of Extremadura (Spain)
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.
The right of the individual to profess the belief or religion of his choice is projected, albeit with limits, in the field of public and private legal relations. The impact of religious freedom on the social order has increased in Spain as a result of the multiculturalism of our society derived from the migratory phenomenon. The coexistence of different models of life coming from different countries and cultures has given rise, in the labour framework, to a harmonising jurisprudential doctrine based on the reasonable accommodation between the freedom of enterprise and the freedom of beliefs. However, is this doctrine applied in the framework of Social Security? Does religious freedom have any virtuality in this area? Although at first it might seem that not, the recent position of the courts of justice on the attenuated public order in relation to the widowhood pension in case of polygamy raises doubts in this regard. In the field of Social Security, the collision between the application of the personal law of the foreigner and the fundamental constitutional rights recognised in Spain is resolved without resorting to pondering or reasonable accommodation theories, but the indirect effect of polygamy on the widow’s pension obliges us to consider, in any case, whether this family model derives from religious freedom or from the mere judicial interpretation of the regulations of public international law, without forgetting that its analysis must be carried out from the correct understanding of the right to freedom, dignity and equality between women and men that governs in democratic societies.
Keywords: working conditions – religious freedom – Social Security pensions – polygamy.
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
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 , 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 [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 , 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 [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 , having recognition of this right at the national  and supranational levels . 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 ; the second, through the exercise of the right to conscientious objection which would allow the worker, where appropriate, to disobey company orders (ius resistentiae) ; 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)  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) . A novel perspective of judicial analysis [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 . This insurance which, over and above the enormous [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 . Polygamy (rectius, polygyny) , as a [continua ..]