Attendance at classes on Moral and Religious Education at schools in the Madeira Autonomous Region
Principle of the separation of church and state;
Principle that public education must not be religious or faith-based;
Freedom of religion and freedom whether to attend religious education at publically funded schools;
Legislative competence of the autonomous regions;
Regime governing constitutional rights, freedoms and guarantees.
RULING No. 578/14
28 of August of 2014
A norm contained in a Decree sent for signature to the Representative of the Republic for the Madeira Autonomous Region said that in order for students not to attend “moral and religious education activities” they needed an express declaration to that end from a parent or guardian, whether those activities involved classes in Catholic Moral and Religious Education or some other type of such education. The Constitutional Court considered that this violated the Assembly of the Republic’s partially exclusive legislative competence (legislation on constitutional rights, freedoms and guarantees), the right to freedom of conscience, religion and form of worship, and the principle that public education must not be religious or faith-based.
This prior review case was brought by the Representative of the Republic for the Madeira Autonomous Region (RAM).
A norm contained in a Regional Decree required that a parent or guardian of a student who did not want to receive any moral/religious education had to make an express declaration saying so. The first issue raised by the petitioner was that in his view this precept was organically unconstitutional, because the regime in question concerned rights, freedoms and guarantees – an area that falls within the Assembly of the Republic’s partially exclusive legislative competence.
The Constitutional Court noted that the matter of constitutional rights, freedoms and guarantees, among them the freedom of religion and its institutional corollaries, is one of those in relation to which the level of the legislative competence reserved to the Assembly of the Republic is at its highest. As such, it concerns all legislative regulation and not just the bases for, or general regime governing, a given domain.
The 2004 Constitutional Revision made some elements of the legislative competence of the Autonomous Regions broader and more flexible, particularly by eliminating the general clause on “specific regional interest”, albeit while maintaining other limitations, such as the requirement that regional legislation cannot address matters which are the exclusive competence of the entities that exercise sovereignty (all of which are national).
Such matters necessarily include those that fall within either the absolute, or the partially exclusive, competence of the Assembly of the Republic. The Court emphasised that the Constitution expressly prohibits any authorisation of the Autonomous Regions to legislate on matters regarding constitutional rights, freedoms and guarantees.
The innovative and restrictive content the RAM sought to introduce in the field of rights, freedoms and guarantees thus configured the existence of an organic unconstitutionality.
The issue here was not one of merely executive details of the freedom of religion and religious education at public (in the sense of publically funded, or non-private or cooperative) schools – details that must indeed be seen as being outside the scope of the Assembly of the Republic’s partially exclusive legislative competence. The rule the RAM sought to introduce conflicted with both the state’s symbolic positioning in relation to religion, and the very way in which a negative freedom – in casu the freedom not to receive religious education – is exercised.
Nor was the question of whether these activities specifically concerned Catholic Moral and Religious Education (EMRC) or any other type of such education at issue.
However, religious education at public schools does primarily entail the academic subject ‘EMRC’. The Court recalled that the 2004 Concordat between the Portuguese State and the Vatican subjects attendance at Catholic religious and moral classes at public non-higher education establishments to a positive declaration of will by the interested party.
Turning to the petitioner’s second allegation – that the norm also suffered from material unconstitutionality – the Court underlined that the freedom of religion is one of the personal rights, freedoms and guarantees and is expressly enshrined in the Constitution, which attaches a specific importance and degree of sensitivity to it. This is a right that continues to be guaranteed even during a state of siege or emergency. In addition to its negative dimension, the freedom of religion also requires the state to guarantee the conditions needed for the freedom to be exercised. This duty is particularly sensitive when it comes to the openness of public schools to religious education. This is a manifestation that can trouble the principle of the separation between the state and churches, which is in turn linked to the principle that the state must be non-faith-based or neutral in religious matters. The latter principle applies to public education, which cannot have a religious orientation, although the state can authorise the different religious faiths to teach their religion at public schools.
The Court emphasised the wide-ranging treatment given to religious freedom in international human rights law, referring specifically to the Universal Declaration of Human Rights, the International Covenant on Civic and Political Rights, the United Nations Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, the Charter of Fundamental Rights of the European Union (CFREU), the European Convention on Human Rights, and the Framework Convention for the Protection of National Minorities.
The Court also recalled that the topic of religious education at public schools can be seen from various perspectives, ranging from radical prohibition (“militant secularism”) to compulsory, organised Catholic education funded and taught by the state.
In the present case the Court took the view that an obligation to expressly refuse activities linked to moral and religious education would mean obliging citizens to overtly state a desire which they might prefer to keep quiet and maintain strictly within the domain of their personal privacy. Any freedom not to do something – here, the negative aspect of the freedom of religion – is violated by the imposition of a positive facere as a condition for being able to enjoy that freedom. It may be permissible for the exercise of rights (the right to religion) to depend on taking some form of action (making a request or a declaration, etc.), but this is not true of the exercise of freedoms – a freedom not to do something, which consists of a freedom not to act – in relation to which any material requirement that conditions exercise of the freedom is unacceptable. As a negative freedom, the freedom of religion essentially consists of a freedom “not to do”: no one is obliged to possess or profess a religion, and no one is obliged to receive religious education. By modelling non-access to religious education at public schools in the form of a requirement to provide a negative declaration, the regional legislator sought to introduce the right to refuse religious education into the legal system; however, failure to provide such a declaration would mean that that education would have become a compulsory subject.
The Constitutional Court also found that the norm before it was in breach of the constitutional principle of the non-faith-based or religious nature of public education.
The Court said that the entry into force of the 1976 Constitution represented a change in the direction taken in the relations between the state and the different churches. A number of norms in the 1940 Concordat were rendered out of date, including the article under which: “The education given by the state at public schools shall be guided by the country’s traditional moral and Christian principles. Consequently, Catholic religion and morality shall be taught at public elementary, complementary and middle schools to students whose parents or whoever acts in their stead have not requested exemption”.
The academic discipline Moral and Religious Education is currently subject to a range of legislative acts. Of particular importance is the Law governing the Bases of the Education System. In accordance with the provisions of the Constitution, this says the state cannot give itself the right to programme education and culture in accordance with any philosophical, aesthetic, political, ideological or religious directives, and coherently with this, that public education cannot be religious or faith-based.
The Court noted that the bases of the education system fall within the Assembly of the Republic’s exclusive legislative competence, and that once those bases had been fixed by the Assembly, the government had exercised its own legislative competence in the form of Executive Laws that were necessarily subordinated to the Law whose bases they sought to develop.
The Constitutional Court therefore found that the norm was also materially unconstitutional.
The Ruling was unanimous.
Rulings nos. 423/87 (27-10-1987); 174/93 (17-02-1993);
246/05 (10-05-2005), 258/07 (17-04-2007); 423/08 (04-08-2008); 613/11 (13-12-2011); 374/13 (28-06-2013); 793/13 (21-11-2013); and 55/14 (20-01-2014).
European Court of Human Rights – Case of Lautsi v. Italy, Application no. 30814/06; Cases of Folgerø v. Norway, and Zengin v. Turkey.