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NUMBER 2   JULY - DECEMBER 2004

    EXTENSIONS TO THE FUNDAMENTAL RIGHT OF RELIGIOUS FREEDOM
    Cristobal ORREGO SÁNCHEZ
    Javier SALDAÑA SERRANO*

    Original Text (Spanish) PDF

    SUMMARY
    I. Posing the question. II. The issue of religious teaching. III. Religious assistance. IV. Civil effects of religious acts celebrated by people: religious marriage.


    I. POSING THE QUESTION

    Religious freedom is not only a subject of theoretical thoughts; it has an evident practical reflection, as well. It includes or implies a series of extensions or dimensions observable in social life, through, among other things, meeting places for people or groups of different religious denominations. We will focus our attention on three especially complex issues, through which it is possible to observe more clearly the theoretical and practical consequences of the lack of understanding equality and the principles that should govern legal regulation of the religious phenomenon. These topics are religious education or teachings, religious assistance to people in particular situations —mainly in the armed forces— and the civil effects of religious acts celebrated by people. Naturally, there are many other issues that can be understood as an extension of the problem concerning religious freedom: the issue of objections of conscience —frequently based on religious convictions—, the issue of labor norms applicable to ministers and other "religious staff", the problem of religious autonomy of families and public order, the "conflicts" between religious sensitivity and opposing opinions or artistic works, the relation between the governing rules of public economy (i.e. with regard to freedom of trade, taxation, etc.) and the assets and income of religious groups, etc. We will focus on three "classic" issues of the State’s ecclesiastical law to show that general explanations on the principles informing ecclesiastical law, especially as regards religious equality, are not always easily applicable to more concrete practical matters. In this work we will make reference to interesting facts as a complement to what a legal scholar in Mexico generally knows: some judgments made by the Spanish Constitutional Court, the agreements signed between the Spanish State and the Holy See (in the case of the Catholic group) and the agreements signed with religious groups other than Catholic ones.1

    II. THE ISSUE OF RELIGIOUS TEACHING

    The first issue regarding the right of religious freedom is related to teaching, particularly in teaching children, both in public and private schools. The most important premise in this matter is that religious education must be in accordance with the religious or moral convictions of parents or guardians. This right is recognized in most international human rights protection instruments.

    This issue, as has been set out in the recent debates, seems to be complex: Are we entitled or not to be taught religion in public or private educational institutions? Is this the only freedom at stake or are there also others in conflict? Is it plausible to "protect" the children’s freedom of conscience against the "education" they receive from their parents?

    1. Recurrent Problems in Religious Teaching

    In dealing with the aforementioned issues, it is necessary to identify four basic issues:

    a) When choosing a school the education of their children, parents must ensure that the educational institution is in accordance with the convictions they profess. However, the kind of moral or religious education children will receive and whether that education should be taught in public institutions or only in private schools is under debate.

    b) Teachers and their freedom: in the event that there is an ideology in the institution, is the teacher compelled to share it or can he adopt a different one? In this case, as you can see, academic freedom, a right teachers have, and the right of head teachers to establish an ideology in schools are in conflict.

    c) Religious ideology of the educational institution. The concern in this case is focused on whether public or private institutions are compelled to uphold an ideology, whether they can do without it, whether they have the right to choose it, etc.

    d) The right religious groups have to teach and train their members and ministers.

      A. The Right of Parents/A Parent’s Right

    In the Spanish Constitutional Court there are basically two opinions regarding the debate on freedom of teaching and religion. The first of them understands religious teaching as an element that integrates and shapes human personality. Therefore, it gives parents the power to demand the kind of education their children will receive, which must be in agreement with their own religious and moral convictions.2

    Under that interpretation we attempt to put the problem of religious teaching on an equal footing with some international human rights instruments. Among these we have, for instance, Article 26(3) of the Universal Declaration of Human Rights, which empowers parents to choose the kind of education that shall be given to their children;3 or Article 13(3) of the International Covenant on Economic, Social and Cultural Rights, which recognizes the right of parents and guardians to choose schools for their children to ensure their religious moral education in agreement with their own convictions;4 or even, Article 18(4) of the Covenant on Civil and Political Rights, which literally takes the idea of the preceding Covenant5 and which is also repeated in other international instruments.6

    We can primarily deduce two consequences: (i) the acknowledgment of a parent’s right to choose for their children or wards the kind of religious or moral education that is in accordance with the convictions professed by the parents; and (ii) the acknowledgment of the right of private schools to establish, in the institution, their own teaching ideology.

    Contrary to the aforesaid position, there is another position claiming that religious education must be part of the freedom of teaching, understood as the transmission of scientific knowledge.7 The connection between religious education and freedom of teaching assumes, besides its compulsory nature in public schools as an official subject and being on equal terms with regard to other subjects, the recognition of the parent’s right have to choose the educational institution to which they want their children to go. Thus, it seems that religious education and education are connected to each other.

    In summary, it seems that both positions recognize a parent’s right to choose the educational institution in accordance with their own moral or religious convictions. This issue requires no further consideration because we have seen that both domestic legislation and international treaties and even the Spanish Constitutional Court recognize this right, even though their positions are divided.8

    But the complex part of it, as we have seen, lies further along, when it makes reference to the right of educational institutions to have a religious ideology as part of the education they give, and the teacher is thus required to adopt an ideology in accordance with that of the educational institution.9

    What must be clear is that:

      State Public Powers should adopt all the measures that ensure that a parent’s right to choose for their children the kind of moral and religious education in agreement with their own convictions will not be violated. It will be possible to exercise this right because public powers, in the first place, will see that nothing prevents it; that is to say, that there is no impediment hindering the freedom of choice. Also, and from a positive perspective, because within the organization of the State, public powers have to see that services of religious and moral education accessible to the students of State-ruled educational institutions exist and work, in the event their parents exercise the constitutional right they have.10

    This idea is completely approved by both the agreements between the Spanish State and the Holy See, and the Constitutional Court. With regard to the agreements, they recognize a parent’s right to choose an educational institution and they also define the State’s obligation to teach Catholic religious teachings at certain educational levels for those parents who so request it.11 In the case of the Constitutional Court, it also indirectly recognizes a parent’s right and the State’s competence to exercise it by giving religious education as long as parents request it.12

    Let us see how the issue of religious education belongs specifically to the State and more specifically to its government:

      The government of the Spanish State, constitutionally and by operation of a legislative rule superior to ordinary laws in the national legal system in force, is committed to solve the problems faced by public educational institutions with regard to the choice of parents and guardians in favor of teaching the Catholic Religion and Moral teachings. Any citizen who pronounces himself in favor of that option and whose child or ward studies in a public educational institution has the right to demand the State to comply with the public duty of providing that kind of education for free.13

    However, as part of that situation, there is a secondary issue: The difficulty faced by the people in charge of giving that education in public elementary education schools. The answer to this question can be found, with regard to the Catholic religion, in Article 3 of the agreements signed between the Spanish State and the Holy See:

      In public preschools, elementary schools and technical colleges, the designation, as previously described, shall preferably fall to those elementary school teachers who have requested it. Teachers of religion shall be part, for all purposes, of the faculty of their respective schools.14

    For those educational centers that do not have staff to teach that kind of classes, Ministerial Decision dated June 16, 1980, on Catholic Moral and Religious teaching in Preschool Education and General Elementary Education Schools, provides that the Catholic hierarchy has to file a proposal with the provisional delegate —currently, the director— of the Ministry of Education, who shall designate the "ideal competent person or persons". The Catholic Church representative that files the proposal is, in each case, the Diocesan Ordinary, in compliance with 3(3) and 3(7) of said Decision.

    The second and third questions we have already stated are derived from that problem: The rights of teachers and the ideology of the educational institution where education is given. Which interest would prevail in case of conflict between them?

    In order to analyze that issue, we necessarily have to discuss two freedoms recognized by both the Constitutional Court and the ecclesiastical law doctrine: academic freedom and freedom of teaching.

      B. Academic Freedom

    Academic freedom belongs to teachers both of higher education, including universities, and elementary education (at first, this freedom was exclusive of university education). The idea that gave rise to academic freedom, which would later be recognized by even the Constitutional Court, is to understand this freedom before the State or public power, whenever there is possible intervention by the State or public power in the teacher’s teaching activities.

    Academic freedom is understood in a wider sense as the search for the truth of knowledge with no impositions from the State. This freedom is included in the freedom of teaching, and as any freedom, it maintains certain limits that must be respected for its due exercise. These limits, according to constitutional criterion, depend on educational institutions. Judgment dated February 13, 1981, provides that:

      The first of them [academic freedom] is a freedom before the State, or, in a broader sense, before public powers; its contents is necessarily shaped by the intrinsic characteristics of the teaching position or chair that entitle its holder to exercise that freedom. These characteristics are basically determined by the agreed action of two factors: the public or private nature of the educational institution and the educational level or degree conferred to that position.15

    As we can see, the conception of academic freedom held by the Constitutional Court is very limited; it is restricted to the teaching position and can be modified according to the nature of the institution and depending on the level of education. According to this criterion (as the Court itself has shown), when a teacher exercises that freedom in public institutions, he shall have the right to "withstand" any order to give his teaching any given ideological orientation, thus showing the incompatibility of that freedom with the demands of an official science or doctrine.

    As for private educational institutions, the exercise of academic freedom given to teachers is even more restricted by the limits imposed by the educational institution in question, if it has an ideology. But, if public power is restricting academic freedom instead of the head teacher, that limitation is compared to that of public institutions.

    In summary, if the infringement comes from public powers over teachers in private institutions, it is comparable with a violation that takes place in public institutions. Therefore, if this freedom is exercised in public institutions, it will be necessary to take the limits into account according to the position and level in question. Among other limits, which we will mention below, there are technical and legal limits (public order and others).

    In any event, teachers in both private and public schools are recognized as having academic freedom in a more or less broad sense depending on the institution. This can seem quite logical since one of the most important reasons that should motivate a teacher when teaching is the search for the truth in scientific knowledge and it should be free of any demand that is incompatible with the nature of the truth being researched,16 whether from public power or the head teacher of the private institution. This search for the truth cannot be either submitted to any imposition from a religious group, which does not imply excluding religious orientation from the overall contents of the education given in the institution. In this particular case, it would be also said that in the aforementioned judgment we could observe the principle of the ecclesiastical law of the State of "religious freedom" and the secular nature of the State.17 The interest of having broad academic freedom, with its due limits —that can be different if intervention comes from the State or the head teachers of private institutions—, is compatible with the fact that in certain essential concerns —especially of a directly moral and religious nature— prevail over the preferential right of parents, as it has been seen in the preceding chapter.

    This leads us to discuss another issue, the right of head teachers of educational institutions to establish a particular ideology in the educational institution.

      C. The Right of Head Teachers to Establish a Particular Ideology in Educational Institutions

    "Ideology" has been defined as "a coherent system of general ideas or principles aimed at creating and directing a teaching project"18, or also as a "set of basic and fundamental principles summarizing the ultimate orientation that defines an educational institution before parents, students, teachers and society at large."19

    This ideology and the right head teachers have to establish an ideology in their institutions is also recognized by the judgement we have already mentioned. Legal Ground No. 8 establishes:

      The right set forth in by Article 34 of the LOECE for head teachers of private institutions to "establish a particular educational ideology respecting the principles or provisions of the Constitution", is part of the freedom to set up institutions, as long as it is comparable with the possibility of giving these institutions an individual character or orientation."20

    This right is nothing but the recognition of what Articles 22 and 51 of the Organic Act of the Right to Education authorize to head teachers of private institutions. It could be included in what is called "educational pluralism" that makes the existence of institutions other than the legally incorporated ones possible.

    However, we face a special situation when academic freedom and the freedom of head teachers are in conflict. This situation has been already foreseen by the judgment in question, which provides that:

      The conflict between the exercise of the freedom of teaching by the head teacher when establishing a particular ideology and the freedom of teaching granted by law to teachers in private institutions, within the limits of said ideology and in compliance with Article 27(1) of the Constitution, is a different problem.21

    In this regard, the judgment itself recognizes this right as pertaining to the teachers who start working at an educational institution. The following is read:

      The existence of an ideology known by the teacher when said teacher freely starts working for the institution, or freely accepted it when that ideology was established in the institution after the teacher started working there does not obligate the teacher to become an apologist of it, or to transform his teachings in propaganda or indoctrination, or to subordinate that ideology to the demands that scientific precision imposes on his work. A teacher is free to be a teacher in the exercise of his specific activities. His freedom is, however, a freedom that depends on the teaching position he holds, that is, in a given institution, and it therefore has to be compatible with the freedom of the institution to which the ideology belongs. The authority of teachers, under the terms they deem the most appropriate, does not contravene the ideology established, in pertaining to serious and objective criteria. The limiting powers of the ideology will be greater in that which refers to the strictly educational or training aspects of teaching, and lesser in that which refers to the simple transmission of knowledge, where the demands of teaching leave a very narrow margin for different ideologies.

    At first glance, we could think that the right to an educational ideology is an unlimited right, but it is not so. Naturally, it has its own limits, but such limits are not derived from its instrumental nature concerning a parent’s right to select the kind of teaching and morals they want for their children, since there is no instrumental relationship; however, there is an unquestionable interaction. This position is later confirmed in Legal Ground No. 8, which provides that: "This precept would be unconstitutional indeed, as the appellant might try to put it, if the ideology did not include limitations, but by referring to the principles and declarations of the Constitution, it establishes them in general and it cannot be considered unconstitutional".22

    There is another characteristic of the freedom of teaching that should be mentioned: its neutrality. The holders of the right to choose religious and ideological convictions that are to be taught to children are the children’s parents, not their teachers. This freedom is guaranteed in public teaching through neutrality, insofar as possible: by not imposing a given ideology or, as we have said, the informing principle of the State known as religious freedom.23

    In public institutions "neutral" teaching is imposed.24 In private institutions with an ideology, at least a respect for that ideology is impressed, which in the end can only be seen as an imposition. Neutrality, reads the judgment, "is a necessary characteristic of each of the teaching positions existing in the institution and not the hypothetical result of a casual coincidence in the institution and before students, of teachers with different ideological orientations, but whose teachings are reciprocally neutralized."25

      D. The Right of Religious Groups to Train their Members and Ministers

    A last issue is religious groups’ right to train their own members or ministers. Maybe the best example of this religious groups’ right is the Catholic Church, which is recognized as having the right to establish, with full autonomy, diocesan and religious seminaries, centers of any degree, including universities, institutes of higher education and other ecclesiastical science centers to train priests, religious persons and laymen.

    2. The Right to Education as a Just Thing

    The right to religious freedom must be also fulfilled in this expression of teaching. In the case of a parent’s right to have their children receive an education in conformity with their religious convictions, it seems that the right to religious freedom is fully satisfied. This right concerning parents is the thing that belongs to them as a right. The State not only recognizes this debt it has with parents, but it has to also promote its compliance by providing, in the case of public schools, the necessary means so that children can receive religious teaching with the express consent of their parents.

    As for private schools, we can also deduce that the State is equally obligated to support private institutions. This assistance, in our opinion, can be made directly through of subsidies, or indirectly, through tax benefits or tax cuts. Thus, public and private institutions would be given equal treatment, and, most importantly, the right would be fully observed in both public and private schools. The nature of both schools has nothing to do with the protection and promotion of this right because the most important thing is that any student can see that this right is fulfilled.

    What is due to parents is that this right must be respected, recognized and promoted. The State must comply with this right in public and private schools. The State is expected to provide support and promote this right.

    Teachers and head teachers of educational institutions are recognized as having this right, provided that it is exercised within the established limits without hampering the rights of others. Both rights are limited by the proper exercise of each other. But what should be pointed out is that the exercise of a parent’s right, which also belongs to children, to receive religious education should not imply restricting the rights of others. Academic freedom is recognized as belonging to teachers, as head teachers are recognized as having the right to establish an ideology in a private educational institution.

    Finally, religious groups are to be recognized as well as having the right to train and educate their members and ministers. The right to religious freedom is not only recognized as belonging to people, but also, as we have seen, to religious groups.

    III. RELIGIOUS ASSISTANCE

    A particular religious expression in people’s lives can be seen in the centers characterized by having a special regime of subjection. We are referring to the members of the armed forces, prison inmates, hospital patients, and people received in public health centers or those in social services centers or similar institutions. In general, we refer to the so-called "religious assistance" as defined along the following terms:

      In a broader sense, it is often said that the State provides religious assistance by helping, participating, promoting or having the charge of meeting the religious interest of its citizens and the religious groups they belong to, regardless of the position adopted by the State towards the occurrence of religious, and without taking into account given reasons or special situations of the citizens so assisted.26

    We are interested in something more specific, related to the activity of the State that is aimed at establishing the conditions so that people with a special regime of subjection can receive spiritual assistance from the ministers of the religion they practice.

    Note that we are talking about two different things: on the one hand, "spiritual assistance", and, on the other, "religious assistance". In the first one, relationships of assistance are established between the faithful and his religious group, generally by means of its ministers. In the second one, the obligor is the State, because it must create and facilitate the conditions to make spiritual assistance feasible. These two relationships are different; one of them has a legal nature and the other does not.27

    From the different places where religious assistance can be provided, we will highlight that of the armed forces. Heir to a religious tradition (the Catholic one),28 Spanish legislation for religious assistance recognized the right the people under to the military regime have to receive assistance from the ministers of the religion they profess. This was found to be evident by a majority presence of Catholic clerics in the armed forces. It was furthermore confirmed by the series of laws, agreements and royal decrees on religious assistance drawn up for the members of the Catholic religion.

    The Agreement of January 3, 1979, between the Spanish State and the Holy See is probably the regulation that best condenses and regulates the relationship between subjected Catholic members and the Catholic Church. Its first article provides: "Religious and pastoral assistance to Catholic members of the Armed Forces shall continue to be carried out by the Military Vicariate."29 In this regard and taking into account the development the Catholic Church has had in this issue, something similar has happened with other religious groups, such as Muslim, Jewish and Evangelical, mainly by means of the agreements signed with these religions.

    The States that recognize these rights have realized that the fulfillment of the duties that individuals have as believers do not have to be limited or hindered because their holders are subjected. The nature and inclinations of man oblige him to fulfill and satisfy his inclination for having contact with God through dialogue. It is only possible to comply with this exercise when the ideal means for putting it into practice exist. Therefore, the role of the State, once the idea of tolerance is overcome, should be the proper promotion of the exercise of this right, by creating the ideal conditions. It is not a simple attitude of abstention, of letting it happen, that should motivate the activity of the State, but that of contributing, in an external and subsidiary way, with the fair exercise of the relationship that man establishes with God.

    Which are, in this particular case, the activities that the State is able to do?

    From our point of view, the first attitude that the State has to adopt is that of respect and recognition. Recognition of the right believers have to act upon what their religion prescribes as something just that they have to do, that belongs to them and no one can deprive them of. In summary, to recognize the debt to which a person is entitled. From this recognition, certain rights, such as the building of places suitable and adequate for carrying out religious worship; the possibility for the ministers of that religion to be able to perform their apostolic or priestly work; the possibility of providing these centers with the infrastructure necessary for conserving or preserving them, etcetera, can be derived. Naturally, the positive actions of the State —from fitting out and building temples to allowing non-members access to these places— must be proportional to the circumstances: the appropriate operation and order of public service (the armed forces), the number of members in a religion, the possibilities of access to the place, etc.

    Let us, now, give an example of the Evangelical, Jewish and Muslim religious groups.30 According to Article 8 of the respective agreements:

      The right shall be recognized of all military personnel of the evangelical faith [this also applies for the Jewish, etc.], whether or not they be professionals, and of all persons of said religious belief serving in the Armed Forces, to participate in religious activities and rites inherent to the Churches belonging to the FEREDE, on the days and at the times established by the different religions to which they belong, subject to authorization by their superiors, who shall endeavor that these be compatible with the needs of service, facilitating the places and suitable means for this purpose.31

    The aforementioned text appears in the other agreements with corresponding adaptations according to each religion. For instance, in the case of the Muslim religious group, members of this religion are allowed to go to the nearest mosque to worship.

    In any event, whether specific places are built for religious worship or people are allowed to leave a military center to go to the nearest religious premises, the most important thing is that the State recognizes the existence of this right and the person’s duty to fulfill its commandments, facilitating for that purpose, and only within the limits of that right, the possibility of having the suitable means to fulfill it.32

    As to legal assistance, the doctrine recognizes at least four models of assistance. In Spain, the integration model, according to which, religious assistance services are conformed by public services of infrastructure and support to providing spiritual assistance through the ministers of corresponding religious groups prevails. In the most integrating model, brigades of chaplains with the capacity of public officers are established and the State takes part in the organization, not only with regard to religious assistance, but also in religious pastoral services, establishing its contents, which could also include indoctrination, aside from spiritual matters.33 Obviously, an integration of this kind is only compatible with the right to religious freedom when the subject-matter of spiritual assistance are defined and approved by the pertinent religious authorities before being included in official instruments or acts of the State, and furthermore when those who do not follow the religions in question —somehow a majority or specially recognized— are free to refuse that assistance.

    The rest of the religious assistance models are:

    a) The consensus model, in which an agreement between the relevant civil institution and the religious group prevails in terms of the contributions of human and material resources by each of the two parties, thereby instituting an autonomous organization with the participation of representatives from both parties (and the inmates affected should not be overlooked).

    b) The model of free access to the centers to provide spiritual assistance, provided that the conditions ensuring the internal order and regime, whether through an agreement or unilaterally, are established. The relationship between the center and its religious ministers shall be reduced to the authorization of free access for providing charitable services, or by hiring personnel of an administrative, civil or labor nature. By means of this regulation, relative stability concerning the provision of spiritual services to the members of such centers is assured.

    c) The model of freedom to leave the premises of inmates, by which it is established that they can meet their religious needs off the premises. It will not always be possible to assure that there is a "regime of religious assistance" if the inmates can be allowed to leave the center when they request to do so, since that would show that there would be no system of admission into a closed center with enough subjection to justify religious assistance. It might possibly be understood that there is religious assistance when leaving the premises is regulated, stipulating the established dates and times for spiritual assistance of inmates outside the premises.

    In the Spanish Law the model of integration for religious assistance on behalf of the faithful of the Catholic Church prevails, and there are military chaplain, prison and charity brigades. Religious assistance for Catholics will adjust to the model of agreement. For the members of other religions, there have been agreements signed with the Ferede, the FCI, and the CIE establishing the free access model. However, there is no regulation for those that have not signed an agreement with the State, aside from the general rules of the Constitution and the LOLR. Thus, the management of the relevant center will have to solve each request for spiritual assistance if it agrees to allow the petitioner to leave the premises, whenever that is possible under the institution’s regime.

    But what is even more important and significant, the aforementioned examples lead us to realize how the right to religious freedom, besides making gradual progress in Spanish legislation, is not only focused on being understood as simply a safeguard against coercion from public power. The State’s role should not only be focused on that negative activity; it should go beyond a simple passive role and assume an active attitude or promote that right as in the examples we have just stated. This attitude of the State is not a proposal of ours; the Council Declaration Dignitatis humanae has already established it.34

    The informing principles of ecclesiastical law have full validity and a wider range of operation in this particular kind of religious assistance, and depending on the model assumed. We can clearly identify three principles regarding this issue: the principle of religious freedom as a primary principle; the principle of equality by considering religious groups on equal terms, and the principle of cooperation as the possibility the State and religious groups have to coordinate among themselves and cooperate so that people can exercise their right to religious freedom.

    IV. CIVIL EFFECTS OF RELIGIOUS ACTS CELEBRATED BY PEOPLE: RELIGIOUS MARRIAGE

    The last expression of religious freedom that we will outline here deals with the civil effects produced by religious acts celebrated by people, specifically, in terms of religious marriages. What is the impact people’s religious convictions have on the marital system? The immediate answer to this question is that religious convictions of people who decide to marry under the parameters established by their religion have to have civil effects. Despite the fact that in some countries (such as Mexico and Chile) civil authorities have decided to completely disregard the authenticity of a religious marriage, we should not lose sight of this essential response considered a maxim, that is, taking principles into account.

    There are two important reasons for that answer. The first of them has a historical nature; the second is grounded on each person’s nature and the law. There is, if it is so accepted, a third reason for this phenomenon within the theological or providential field. We will examine this one at the end of our analysis.

      Until 1870 the Spanish law only acknowledges one form and kind of marriage: the canonical. In consequence, the marital system was the exclusive patrimony of the Church. The marriage issue, thus, would be regulated by the Catholic Church and its jurisdiction would belong solely to said church. With the separation of the Church and the State originated by the Protestant Reform and the French ideological and legal postulates that arrived belatedly to Spain, religious marriage was secularized and with the Constitution of 1869 the Catholic nature of the Spanish State was broken for the first time, producing as a result not only the appearance of civil marriage, but also its imposition as the only form and kind of marriage with legal effectiveness.35

    This situation has changed in Spain —partially, because all in all, beyond the forms of celebration, civil law defines the essence of marriage—, but it survives in countries such as Mexico and Chile without palliative measures. In any case, the bottom of this matter has to do with principles: What is marriage? Why is the role of political power only to recognize marriage and to protect and defend the personal will of the parties in a marriage?

    According to Hervada, marriage is "the total and full legal union of a man and a woman in virility and femininity, involving an indissoluble community of life, oriented toward the generation and education of children and mutual assistance."36 The classical conception of marriage lies on that formula. Marriage can only exist between a man and a woman. Any other form of union between people of the same sex could never be considered legitimately a marriage. Marriage is based on a natural inclination, contained and ruled by natural law, by which a man and a woman tend towards integration or unity in their nature. According to Hervada, marriage is the answer to an ontological structure of human beings.

    Hervada explains the figure of marriage more clearly as follows:

      First of all, any human being is constituted as a man or a woman; secondly, man and woman are made by nature, for one another, which is shown by the mutual and natural attraction between man and woman; thirdly, this tendency involves a specific form of joining together, which responds to the fact that man and woman are human beings (with demands of justice), that they are different (men are one thing and women, another) and that they join together precisely as man and woman. This specific manner of joining themselves, which responds to natural law and the condition of humanity, is what we call marriage. Therefore, marriage is the form of sexual union between man and woman that arises from the moral and legal demands of human beings.37

    Thus, if man and woman, motivated by this natural inclination decide to be together in accordance with another of their inclinations, which is to form a relationship with God through the sanctification of marriage and in a religious way, the State has only to rule, recognize and protect the freedom of the parties to marriage and their personal welfare, as well as marriage itself. But it is not just any form of marriage. Public Power cannot legally rule, much less protect the union of same sex couples, simply because of the unnatural nature of said act. If society has survived, it is because it perfectly identifies the functions of each of the parties that make it up, and in the particular case of procreation of the human race, this function is perfectly determined. Changing it would be to go against the entire legacy we have been given as a society.

    On the other hand, human nature itself recognizes that joining together with a person of the same sex goes against the same people that choose that behavior. Therefore, the structure of marriage is only made up of a man and a woman, never by two men or two women.

    This consideration has very important consequences in social life. If we have said that marriage is a union in nature by which two, a man and a woman, are one, it is also valid to assert that both persons, possessing equal dignity, agree, without relinquishing with it, to make up a new dignity that we could call the "dignity of marriage", which no one can threaten, because by doing so, the dignity of marriage and of the people that make it up would be violated. How can the State, or other people, attack this dignity? As regards the State, it can be so by considering the union of homosexual couples marriage, which is not only unnatural (they are not physiologically prepared for procreation), but also unlawful. In the case of individuals, it can be done by promoting or inciting infidelity, among other things.

    Understanding marriage as we have explained it and noting the harmful consequences that violating it could provoke would give us sufficient reasons for the State to intervene as less as possible in this situation.

    From a more positive perspective, the right of any person to marry is recognized by Article 16 of the Universal Declaration of Human Rights of 1948.38 It is also set forth in Article 32 of the 1978 Spanish Constitution,39 and Article 2(1)(b) of the 1981 Organic Law on Religious Freedom.40 As can be seen, any person is entitled to this right.

    The current marital system of civil marriage in Spain is basically ruled by the first book, title IV of the Civil Code. Specifically, Article 63 recognizes the full legal effects of a religious marriage without making the distinction of a religious group.41

    The most important idea of this legitimization of rights is that of recognition, by the state legal law, of people’s religious convictions and the respect for those convictions. With this respect and recognition, the right to religious freedom remains —as in the preceding expression about religious assistance—protected by state legislation, but not through promotion, but only through recognition. People’s convictions should not prevent legislation from recognizing legal effects to marital bonds, whether for the Catholic religion or for different religions, as it is done in Article 7 of the agreements signed with the religious groups which we have already mentioned.

    Closely related to the recognition of the religious option of marriage is the recognition of a religious option of parents when educating their children, which we have already discussed in talking about education. There are those who believe that the parents’ religious-philosophical position should not be a limitation to a minor’s right to religious freedom. According to these authors, registration in the civil registry office should not assume dependency to a religious community, nor should it limit them afterwards the right to change religion.42 The ideal would be, according to them, that the influence parents have over children was not decisive for the religious option that children will later choose.43 This is, in general terms, the position of these authors: educate the minor under the criterion of "free choice". This thesis, taken to its logical consequences, implies a form of state intervention to "protect" minors against an excessive, non-liberal, influence of their own parents. Indeed, doing so would threaten all the human rights pertaining to freedom of teaching, as they are recognized in international instruments and in most Constitutions.

    From our point of view, taking into account the aforementioned criteria and consequently providing the minor with a free choice philosophy as proposed, would distort the right to religious freedom while acknowledging the right parents have to guide and direct their children’s spiritual-religious life. Parents are entitled to guide and direct the spiritual or religious education of their family members, among them, of course, their children’s. This idea has been already recognized by the Convention on the Rights of the Child of 1990 and also by the Council Declaration Dignitatis humanae:

      The family, since it is a society in its own original right, has the right freely to live its own domestic religious life under the guidance of parents. Parents, moreover, have the right to determine, in accordance with their own religious beliefs, the kind of religious education that their children are to receive…44

    Further, the Convention on the Rights of the Child dated November 20, 1990, provides, in the preamble thereof, the following: "Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community". Below, in Article 5 it establishes the work of parents more precisely:

      State Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.

    Finally, Article 14(2) of that document provides a detailed description of that right: "States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child."45

    Both the Dignitatis humane and the Convention on the Rights of the Child show that the right parents have to guide their children’s spiritual and religious life is something they are entitled to do, such as children have the right to be guided and directed in accordance with their parents’ convictions. Recognition of that right as something just is due to parents. The culture of "free religious choice" —a culture that would like to be imposed uniformly in all families, in the name of freedom— does not recognize the aforesaid right of parents. On the contrary, the minor is left to choose optionally a religious belief without taking into account its convenience or inconvenience. But this is not the only reason for not promoting the culture of free choice. A minor, because of his mental immaturity due to age, is not prepared to choose one or another religious conviction. We believe that because of these two reasons it is not possible to consider the position of minors’ free religious choice valid. In fact, the position we are criticizing is comparable to a pretense of imposition to minors —under the pretext of protecting them from the impositions of their parents— of choices that make no difference in religious terms that are made by the authorities that promote this kind of policy.

    As we see it, the position of free religious choice contradicts the work of guidance and direction proposed by the Convention on the Rights of the Child and the Dignitatis humanae. Thus, people that insist on allowing the minor to choose that "free choice", in the interests of a false freedom, is not recognizing an essential right belonging to parents and children.

    For believers, the guidance that the child should receive must be channeled towards creating in the child a real and true perception of the religious phenomenon in which he is being guided. Under that perspective of guidance and direction, the minor’s dignity, which is in the end the most important thing within the scope of religious freedom, is safeguarded, because the parents’ belief is not imposed nor is the child left undetermined. The most appropriate stance for parents is the right they have to guide their children in terms of their spiritual life, respecting their children’s freedom, according to the emergence and maturity of that liberty. The exact same thing happens with children. They cannot really know the meaning of religious matters if they were left to a simple knowledge, as would involve educating them in "free choice".

    Notes
    * Javier Saladaña Serrano is a research professor at the UNAM Legal Research Institute and a visiting academic at the Universidad de los Andes (Chile), invited by Fondecyt (Incentive to International Cooperation, Project No. 7990062). Cristobal Orrego Sánchez teaches legal and political philosophy at the Universidad de los Andes (Chile). The authors work in Fondecyt Project No. 1990734 entitled "Principios generales del derecho y regulación del fenómeno religioso" [General Principles of Law and Regulation of the Religious Phenomenon]. We would also like to thank the additional assistance provided by Fundación Andes, for granting us a scholarship to further research this topic as part of the second stage of the 1999 Research Stay Program.
    1 These agreements are: Law 24/1992, passing the Cooperation Agreement between the Spanish State and the Federation of Evangelical Religious Entities of Spain; Law 25/1992, passing the Cooperation Agreement between the Spanish State and the Federation of Israelite Communities of Spain; Law 26/1992, passing the Cooperation Agreement between the Spanish State and the Islamic Commission of Spain (BOE, no. 272, November 12).
    2 "In compliance with the aforementioned precepts, parents will be able to exercise the right recognized in Article 27(3), whether by public education, because the education given there is not ideologically oriented by the State, or by private education. Both kinds of education are made up by a given ideology, among which citizens will be able to choose, in the first place. Based on the fundamental right of Article 27(3) of the Spanish Constitution, it is possible to justify the right to establish an educational ideology in private educational institutions, an important issue that we will retake below. "Different international treaties, agreements and declarations, under Article 10(2) and 96(1) of the Constitution, must be applied to construe the fundamental right of Article 27(3) of our Constitution, to which these instruments make reference as well. The right of parents directly and preferentially lies within the scope of education, more than on teaching. Teaching is understood as the transmission of scientific knowledge, and education as the communion of moral, philosophic, and religious convictions in accordance with a given ideology. Therefore, the Constitution refers to (Article 27(3)) "religious and moral instruction"; Article 26(3) of the 1948 Universal Declaration of Human Rights refers to choosing the ‘kind of education’…", STC 189/80 Individual vote of D. Francisco Tomas and Valiente, No. 5.
    3 Article 26 (3) "Parents have a prior right to choose the kind of education that shall be given to their children." Hervada, J. and Zumaquero, J.M., Textos internacionales de derechos humanos, 2nd ed. Pamplona, Eunsa, 1992, p. 155.
    4 Article 13(3) "The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians, to choose for their children schools, other than those established by the public authorities, which conform to such minimum educational standards as may be laid down or approved by the State and to ensure the religious and moral education of their children in conformity with their own convictions." Ibidem, p. 553.
    5 Article 18 (4) "The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians, to ensure the religious and moral education of their children in conformity with their own convictions." Ibidem, p. 568.
    6 Among many other international human rights instruments that establish this right, we can mention the following: The Pact of San Jose provides in Article 12(4): "Parents or guardians, as the case may be, have the right to provide for the religious and moral education of their children or wards that is in accord with their own convictions." Ibidem, p. 602. Another text is the Convention against Discrimination in Education adopted by the General Conference of the UNESCO on December 14, 1960, in which Article 5(1)(b) reads: "It is essential to respect the liberty of parents and, where applicable, of legal guardians, firstly to choose for their children institutions other than those maintained by the public authorities but conforming to such minimum educational standards as may be laid down or approved by the competent authorities and, secondly, to ensure in a manner consistent with the procedures followed in the State for the application of its legislation, the religious and moral education of the children in conformity with their own convictions; and no person or group of persons should be compelled to receive religious instruction inconsistent with his or their conviction." Ibidem, p. 361. Meanwhile, Additional Protocol number 1 of the European Convention on Human Rights and Fundamental Liberties sets forth in Article 2: "No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions." Ibidem, pp. 276-278. Finally, the European Parliament Resolution of March 14, 1984, on freedom of teaching expressly requests Spain and Portugal, in view of their entry into the European Community, to acknowledge different principles related to teaching, among which it is the right of parents to decide the kind of school their children will attend until they are able to make a decision for themselves. For that purpose, the State is obliged to foresee the needs of public and private institutions. See Cruz Musoles, M., "El derecho de los padres a la educación religiosa de sus hijos en la legislación española", in various authors, Estudio en homenaje al profesor López Alarcón, Murcia, Secretaria de Publicaciones de la Universidad de Murcia, 1987, p. 385.
    7 "Given that education is an activity systematically, and with minimal continuity, aimed at transmitting a given body of knowledge and principles, freedom of teaching —recognized in Article 27(1) of the Constitution— it implies, on the one hand, the right to set up educational institutions (Article 27(6)), and, on the other, the right of those personally in charge of teaching to perform their occupation within the limits inherent to the teaching position they have (Article 20(1)(c)). From the principle of freedom of teaching, a parent’s right to choose the religious and moral instruction they want for their children (Article 27(3)) can also be inferred. In each case, we are dealing with rights that have necessary limits derived from their own nature, regardless of the limits produced by their relation to other rights or the rights that may be established by the "lawmaker", always holding respect for their essential contents. STC 189/90 Legal Ground No. 7.
    8 Maybe in the case of Mexico, this situation is not all that evident. It is enough to mention that despite the reforms made to the Constitution in 1992 with regard to religion, Article 3 of the Constitution still establishes that the education given by the State must be "lay". "Freedom of religious beliefs being guaranteed by Article 24, the standard which shall guide such education [in reference to the education given by the State] shall be secular and maintained entirely apart from any religious doctrine."
    9 See Fraile Clevilles, M. (comp.), Código Constitucional, Madrid, Trivium, 1983, pp.435-437. See also, Garrido Falla, M., Comentarios a la Constitución, 2nd ed., Madrid, Civitas, 1985, p. 554.
    10 See Diego Lora, C. de "La garantía constitucional del artículo 27.3 de la Constitución española en los centros públicos de enseñanza", in various authors, Las relaciones entre la Iglesia y el Estado, Madrid, Universidad Complutense-Universidad de Navarra, 1989, pp. 661-675.
    11 "I. In view of the principle of religious freedom, educational activity shall respect the fundamental right of parents concerning the moral and religious education of their children in schools. In any case, the education provided in public school will be respectful towards Christian values. II. Educational plans at the levels of preschool, Elementary School (EGB) and High School (BUP) and technical colleges for students of the corresponding ages, shall include the teaching of the Catholic Religion in all Educational Centers, in conditions equal to those of the basic subjects. Out of respect for freedom of conscience, this religious education shall not be obligatory for all students. However, the right to receive it is guaranteed. Academic authorities shall adopt the necessary means so that receiving or not receiving religious instruction shall not suppose any discrimination at the school. At the teaching levels previously named, the corresponding academic authorities shall allow the Ecclesiastical Hierarchy to establish, under the specific conditions agreed upon, other complementary activities of training and religious attendance." Instrument of Ratification, dated 4 December 1979, of the Agreement of 3 January 1979, between the Spanish State and the Holy See, concerning Education and Cultural Affairs. For a detailed analysis of the equivalent standards regarding other religious groups, see Martínez Blanco, A., "Fundamento y caracteres de la enseñanza de la religión evangélica, judía e islámica en centros públicos", in various authors, Acuerdos del Estado Español con Confesiones Religiosas Minoritarias. Actas del VII Congreso Internacional de Derecho Eclesiástico del Estado, Barcelona, Marcial Pons, 1994 (Madrid, 1996) pp. 723-731.
    12 "From the principle of freedom of teaching, a parent’s right to choose the religious and moral instruction they want for their children (Article 27(3)) can also be inferred. In each case, we are dealing with rights that have necessary limits derived from their own nature, regardless of the limits produced by their relation to other rights or the rights that may be established by the "lawmaker", always holding respect for their essential contents". STC 189/90 Legal Ground No. 7.
    13 Jiménez y Martínez de Carvajal, J., "El derecho constitucional a la libertad religiosa (doctrina, jurisprudencia y práctica administrativa)", found in various authors, Estudios eclesiásticos, Vol. 62, July-December.
    14 Translator’s note: This quotation can be found in http://spcp.prf.cuni.cz/dokument/esp4a.htm.
    15 STC 189/80 Legal Ground No. 9.
    16 Some general "impositions" in the search for truth, admitted everywhere, are but common demands of the field under research. Thus, for instance, public entities do not fund research that does not follow scientific methodologies accepted by the scientific community; or impose minimal ethical guidelines in research that can or may affect human life or health; or, only to mention one of the many reasonable restrictions, they can demand an age requirement for research participants (i.e., to be of legal age, provide free and knowing consent).
    17 See Calvo Álvarez, J., "La presencia de los principios informadores del derecho eclesiástico español en las sentencias del Tribunal Constitucional", Tratado de derecho eclesiástico, Pamplona, Eunsa, 1994, p. 247.
    18 Moreno, J. M., "Ideario y proyecto educativo en los centros de enseñanza", Razón y fe, Nos. 944 and 945, September-October, 1976, p. 176.
    19 Ortiz Díaz, J., La libertad de enseñanza, Malaga, Universidad de Malaga, 1980, p. 203. Judgement of the Spanish Constutional Court dated February 13, 1891. Individual vote of the judge writing the court’s opinion, Tomás y Valiente, No. 8.
    20 STC 189/80, Legal Ground No. 8.
    21 Ibidem, Legal Ground No. 10.
    22 Ibidem, Legal Ground No. 8.
    23 See Ortiz Diaz, J., op. cit., note 18, p. 458.
    24 This idea is clearly seen in Legal Ground No. 9 of the judgment we have been referring to, when stating that: "In a political-legal system based on pluralism, ideological and religious freedom of people and the secular nature of the State, any public institution and particularly educational institutions, must indeed be ideologically neutral."
    25 Idem.
    26 López Alarcón, M., "Asistencia religiosa", in various authors, Derecho eclesiástico del Estado español, 3rd ed., Pamplona, Eunsa, 1993, p. 369. See also Molano, E., "La asistencia religiosa en el derecho eclesiástico del Estado Español", Persona y derecho, Pamplona, No. 11, 1984, p. 214. See also C. I. et. al., Curso de derecho eclesiástico, Madrid, Servicio de Publicaciones de la Universidad Complutense, 1991, p. 433.
    27 "Spiritual assistance is established between the religious group and its members, because members have the right to receive it, and the religious group to provide it in accordance with its rules. Christian Churches know it as a pastoral cure, spiritual assistance or a cure for souls. Thus, we should make a distinction between the different types of legal assistance relationships. Spiritual assistance relationships are made up of the faithful and his religious group, and even between the faithful and the sacred Ministers. The faithful is empowered to demand to be provided with spiritual assistance services. The legal relationship of religious assistance, in which the State is the obligor, is born when spiritual assistance cannot be duly provided, because of the regime of the public centers already mentioned, which gradually reduces the freedom of inmates to receive spiritual assistance to the detriment of their right to religious freedom." López Alarcón, M., "Asistencia…", preceding note, p. 372.
    28 "The existence of a Catholic religious assistance service in Spain, in the Armed forces, prisons and hospitals, etc., has an old tradition that dates back to time immemorial. At the end of the last century Brigades of chaplains in the armed forces, hospitals and prisons were created. These Brigades were eliminated in 1931 by the Second Republic, on introducing secularism. They were later re-established in 1943 and are still in force. After the Civil War, under Franco’s regime, which was considered Catholic, the only individuals that were guaranteed religious assistance in public centers were precisely Catholics, since the Nation also proclaimed itself Catholic. The organization model of Catholic assistance was that of organic integration, since chaplains had the status of public officers. Even the acts of Catholic worship were mandatory for the Armed Forces, even without professing that belief. Later, with the enactment of Law 44/1967, on June 28, governing the exercise of the civil right to religious freedom, a new stage of religious freedom seems to have begun as of the moment public and private profession and practice of any religion was guaranteed. Article 5(1), which applies this measure, provides: ‘Institutions, entities or companies, whether public or private, shall adopt the measures that allow its members or the individuals dependent on them to fulfill their religious duties normally and voluntary, without prejudice of the general discipline and labor provisions in force.’ This provision guarantees citizens the fulfillment of their religious duties, even though the model of assistance for people who do not practice the Catholic religion is the freedom of leaving the premises, prior appropriate authorization." Olmos Ortega, M. E., "La Asistencia religiosa", in Acuerdos del Estado Español, con los judíos, musulmanes y protestantes, Salamanca, Servicio de Publicaciones de la Universidad de Salamanca, 1994, pp. 195 and 196.
    29 Article Two of the Agreement refers to the structure of said vicariate. It provides: "The Military Vicariate, which is a personal, not territorial, diocese, shall be made up of: A) An Archbishop, Vicar General with is own Curia, made up of: 1. A General Provicar for all of the Armed Forces, with the authority of Vicar General. A. General Secretary. 3. An Assistant Secretary. 4. A permanent representative for training the clergy, and 5. A Pastoral Delegate. B) They will also have the cooperation of: 1. The corresponding Episcopal Vicars. 2. Military chaplains as personal parish priests." See the Instrument of Ratification, dated December 4, 1979, of the Agreement of January 3, 1979, between the Spanish State and the Holy See, concerning Legal Assistance to the Armed Forces and the Military Service of Clerics and Religious Persons.
    30 For a more detailed analysis, see Ariza Robles, M. A., "La asistencia religiosa en las fuerzas armadas", in various authors, Acuerdos del Estado Español con Confesiones Religiosas minoritarias…, note 11, pp. 746-759.
    31 Article 8 of the agreements signed with the Federation of Evangelical Religious Entities.
    32 Members of the Israelite Communities of Spain (FCI) are also recognized as having rights to practice their religion. Among these rights are: a special statute concerning Jewish rabbis, defining the specific rights derived from the exercise of their ministry, their personal situation in such important areas as Social Security and fulfillment of their military duties; legal protection in places of worship; attribution for civil purposes of marriage ceremonies celebrated according to Jewish rites; religious assistance in public centers or establishments; Jewish religious teaching in schools; tax benefits applicable to certain goods and activities of the communities belonging to the Federation of Israelite Communities of Spain; commemoration of Jewish religious holidays and finally, State cooperation with the Federation of Israelite Communities of Spain with regard to the conservation and furthering of the Spanish historic and artistic heritage of Jewish origin. Finally, and in the same terms, it is established the legal regulation and the recognition of rights for the Spanish Islamic community.
    33 See López Alarcón, M., "Asistencia religiosa", in various authors, Derecho eclesiástico del Estado español, 3rd ed., Pamplona, Eunsa, 1992, pp. 377-380.
    34 Let us again recall how the council document describes this attitude of the State: "The protection and promotion of the inviolable rights of man ranks among the essential duties of government. Therefore government is to assume the safeguard of the religious freedom of all its citizens, in an effective manner, by just laws and by other appropriate means. Government is also to help create conditions favorable to the fostering of religious life, in order that the people may be truly enabled to exercise their religious rights and to fulfill their religious duties, and also in order that society itself may profit by the moral qualities of justice and peace which have their origin in men's faithfulness to God and to His holy will. See II Vatican Council, "Declaration on Religious Freedom", AAS, Vol. I, No. 7, 1966, pp. 934 and 935.
    35 Navarro Valls, R., "El matrimonio religioso", in various authors, Derecho eclesiástico del Estado español, 3rd ed., Pamplona, Eunsa, 1993, p. 414.
    36 Hervada, J., Cuatro lecciones de derecho natural, 3rd ed., Pamplona, Eunsa, 1993, pp. 129 and 130.
    37 Ibidem, pp. 133 and 134.
    38 Article 16(1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and its dissolution. (2) Marriage shall be entered into only with the free and full consent of the intending spouses". Universal Declaration of Human Rights of 1948.
    39 Section 32(1): "Man and woman have the right to marry with full legal equality. (2) The law shall make provision for the forms of marriage, the age and capacity for concluding it, the rights and duties of the spouses, the grounds for separation and dissolution, and their effects." 1978 Spanish Constitution.
    40 Article 2(1) "Religious liberty and freedom of religion as guaranteed by the Constitution include, with the consequent safeguard against coercion, the right of any person to: b) practice religious acts and receive religious assistance from their religious group; commemorate their feasts; celebrate their marital rites; be honorably buried, without discrimination for religious reasons, and not to be obliged to practice a religious act or receive religious assistance that is not in agreement with their personal convictions." Organic Law on Religious Liberty of July 5, 1980.
    41 Article 63: "Registration of a religious marriage in Spain shall be made only by filing the certificate issued by the Church or religious group. The certificate will state the circumstances demanded by Civil Registry legislation."
    42 See Lanares, P., La libertè religieuse dans les conventions interntionales et dans le droit public genéral, France, Ambilly-Annemasse, 1964, p. 58.
    43 See Basetrra, D., El derecho de libertad religiosa y su tutela jurídica, Madrid, Civitas, 1989, p. 150.
    44 Declaration on Religious Freedom Dignitatis Humanae, AAS, Vol. I, No. 5, 1966, p. 933.
    45 See the Convention on the Rights of the Child, November 20, 1990.

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