Religious freedom and children’s education
The main subject to be addressed in this judgment is the right to education of article 27.1 CE, in reference to the guarantee that public authorities offer parents that their children can receive religious education according to their convictions, as regulated by article 27.3 CE. This right is closely related to article 16.1 CE, and since it is part of the right of religious freedom (article 2.1.c) Lolr).
The Organic Law of Religious Freedom affirms that religious and worship freedom must be guaranteed by the Constitution itself, expressly mentioning the right to receive religious education in accordance with each person’s own beliefs (art. two.1.c). Public authorities are obliged to ensure that every citizen can freely exercise their fundamental right of free teaching (27.1 CE), ideological, religious and cult freedom (art. 16 CE.1) It is totally necessary. In order for citizens to effectively exercise their rights, respect for the principle of secularism collected in article 16 will be decisive.3 CE, when he affirms that no confession must have a state character.
The principle of secularism would involve the de facto application of the differentiation between state functions and any type of religious confession, respecting the principles that the Constitution establishes. This principle implies the neutrality of the State between religious confessions, and should only guarantee the free exercise of citizens’ rights. What is therefore procured is the free exercise of the freedom of conscience of each citizen, without violating, however, the rights of others.
This term ("secularism") was first used among sentences in the Constitutional Court in 2001. In its sentence 46/2001 of February 15, the Court speaks of the existence of, not only an individual sphere regarding the right to religious freedom (art. 16.1 CE), but, in turn, a public or collective dimension is given so that citizens can not only believe freely and act according to the religious confession they choose but also freely exercise different expressions or manifestations regarding these beliefs. All this occurs without public authorities being able to exercise any type of coercion, but there must be different measures to facilitate the exercise of said right.
In turn, the Constitutional Court in said judgment affirms that there is a relationship between the right to religious freedom and the principle of secularism (art. 16.3 CE), since the latter would be the guarantee to be able to exercise said right. This is, therefore, that, in order for all citizens to freely exercise their right to religious liberty, it is important that the aconfesionality and "neutrality" of the State be respected. This neutrality will be expressed by abstention of the State in terms of self-determination of each citizen regarding their own confession.
We can observe, therefore, that the jurisprudence of the Constitutional Court is inclined towards a double aspect of the principle of secularism: on the one hand, the neutrality of public authorities regarding religion is necessary, and, on the other, there is an obligation to cooperate withthe different churches and confessions to ensure the free exercise of their right.
Regarding the principle of secularism, applied to the field of public education, we find in turn various sentences. In the STC 5/1981 of February 13 it is affirmed that, given the need to be able to exercise each citizen their right to religious freedom, together with the aconfesionality of the State to make it possible, all public institutions must be neutral in their ideology. This does not imply the total suppression of any type of religious education, since article 27.3 CE protects parents’ right regarding the religious education of their children.
We interpret, therefore, that the delivery of religious teachings in the classroom does not imply the violation of the principle of secularism at the public institutional level, but that, it is a way of preserving the right of parents regarding the education of their children and the guaranteeof accessing this teaching, provided there are at least ten children who wish. It must be possible.
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