Relations between the state and bodies of a religious or ideological nature
Separation of church and state
Principle that education must not be linked to a religious belief
RULING Nº 423/87
The Constitution prohibits the organisation of state education along religious lines, unwarranted distinctions between the churches and followers of different religions and the operation of state schools as agencies of religious education. However, the Constitution does not prohibit, or even prevent, the state from allowing the various churches to give religious instruction in state schools, provided that they are treated equally.
The legal rule imposing the teaching of Catholic religion and moral standards on pupils whose parents do not expressly request an exemption infringes the principle of religious freedom, particularly the right to choose freely or not to choose a religion and the right not to be questioned about one's religious beliefs or practices.
The state must allow each church to teach any religion within its own denomination to pupils who expressly request it. By allowing only Catholic religion and moral standards to be taught in state schools (primary, intermediate and secondary), the state is not violating the principle of equality - since it has simply fulfilled one of its duties - but may be breaching the Constitution by omission, since it does not accord the same treatment to other denominations.
In 1983, the President of the Assembly of the Republic requested an independent review of the constitutionality of the different legal rules contained in Legislative Decree no. 323/83, of 5 July, on the provisions of the Concordat (concluded between Portugal and the Holy See in 1940) concerning the teaching of Catholic religion and moral standards in state schools.
These legal rules seemed to violate several (1st revision - 1982), including the principle that no one shall be privileged because of his/her religion (enshrined as part of the principle of equality in Article 13.2 of the Constitution), the principle of freedom of religion (acknowledged in Article 41.1 of the Constitution) and the guarantee of the separation of church and state, as well as the freedom of churches to organise and exercise their own ceremonies and worship as they see fit (set forth in Article 41.4 of the Constitution).
The Court concluded that all but one of the rules submitted to it for review either restated previous legislative provisions, and thus did not represent a significant addition to, or modification of, the legal order, or did not belong to the parliament's sphere of legislative competence. However, the other rule at issue, which required pupils (or their legal representatives) to make an express declaration to the effect that they did not wish to receive instruction in Catholic religion and moral standards, was declared unconstitutional with universal binding force.
The judgment analysed the following matters in turn:
a. the legislative source of Legislative Decree no. 323/83, of 5 July, and the historical and prescriptive background to it;
b. relations between the state and religious denominations;
c. freedom of religion in secular and denominational states;
d. the government's legislative competence in the matter;
e. the rules on religion in the text of the Portuguese Constitution, comparing Legislative Decree no. 323/83, of 5 July, with the constitutional principles of the separation of church and state, non-denominational state education, freedom and equality.
The decision that the legal rule whereby only Catholic religion and moral standards were taught was not unconstitutional was given with the casting vote of the President; the decision that the legal rules on the express declaration of exemption were unconstitutional was given by 6 votes to 4.