Constitutional Court, judgment no. 174/93, 17.02.1993

CONSTITUTIONAL REVIEW | TEACHING OF CATHOLIC RELIGION AND MORALS | PRINCIPLE OF SEPARATION BETWEEN CHURCH AND STATE | RELIGIOUS FREEDOM

 

 

        Constitutional Court, judgment no. 174/93, 17.02.1993  

 

JURISDICTION: Constitutional

CASE: 322/88

SUBJECT: Constitutional review

RAPPORTEUR: Alves Correia

RULING: Does not declare the unconstitutionality of the norms in numbers 1, 2, 11, 14, 20 and 23 of Ordinance no. 333/86, of 2 July 1986, nor of any of the norms in Ordinance no. 831/87, of 16 October 1987.

DOMESTIC LAW:

Portuguese Constitution [Articles 13, 36, 41, 43, 67(2)(c) and (e), 115(5), 167(i), 168(1)(b), 202(c), 281(2)(f)]

Law no. 28/82, of 15 November 1982 [Articles 51(1), 54, 55, 65(3)]

Law no. 46/86, of 14 October 1986, Basic Law of the Educational System [Articles 8(1)(a) and (b), 11(1), 14, 31(a) and (b), 47(3), 59]

Law no. 108/88, of 24 September 1988 [Article 7(2)]

Law no. 54/90, of 5 September 1990 [Articles 2(4), 36(2)]

Law no. 5/73, of 25 July 1973

Decree-Law no. 316/83, of 2 July 1983

Decree-Law no. 323/83, of 5 July 1983 (Articles 5, 6)

Decree-Law no. 59/86, of 21 March 1986

Decree-Law no. 101/86, of 17 May 1986

Decree-Law no. 286/89, of 29 August 1989 (Article 7)

Legislative Order no. 104/89, of 7 September 1989

Ordinance no. 352/86, of 8 July 1986

Ordinance no. 344-A/88, of 31 May 1988

Constitutional Court judgment no. 74/84

Constitutional Court judgment no. 248/86

Constitutional Court judgment no. 423/87

Constitutional Court judgment no. 186/90

Constitutional Court judgment no. 187/90

Constitutional Court judgment no. 188/90

Constitutional Court judgment no. 1/92

INTERNATIONAL LAW:

Universal Declaration of Human Rights, of 10 December 1948 [Article 26(3)]

Additional Protocol to the European Convention on Human Rights, of 20 March 1952 (Article 2)

Concordat between the Holy See and the Portuguese Republic, of 7 May 1940

FOREIGN LAW:

French Constitution (Article 34)

Italian Constitutional Court judgment no. 203, of 12 April 1989

Italian Constitutional Court judgment no. 13, of 14 January 1991

Spanish Constitutional Court judgment no. 187/1991

KEYWORDS:

Principle of separation between Church and State; teaching of Catholic Religion and Morals; Concordat; Holy See; religious education; vicar; suitable person; episcopate; Catholic Church; ecclesiastic entities; diocesan service; ecclesiastic authority; freedom of conscience and religion; religious freedom; principle of equality; non confessional character of public education; neutral State; doctrinal State; culture; religious guidelines; confessional public education; cultural direction; laicity principle; non confessional State; agnostic State; atheism; laicism; citizen believers; religious duties; faith; scale of values; religious confessions; exercise of religion; religious and moral education; religious guidance; agnosticism; profession of faith; religious communities; collaboration of the State with the churches; believers; social dimension of the religious phenomenon; religious needs; principle of religious freedom; religious training; Diocesan Secretariats; symbolic weight; reverential fear: religious convictions; Church representative; priest; Church minister; Catholic wedding; principles of the Christian faith; worldview; fierce atheist; anti-clerical; impartiality; neutrality; militant atheist; Personal and Social Development; non-Catholic confessions; pluralism of religious education; Portuguese Episcopal Conference; Episcopal Commission for Christian Education; diocese bishop; concordatary provision

COMMENTS:

1. In this judgment, the Constitutional Court returns to the subject of religious education in public schools, reprising many of the arguments already presented in its judgment no. 423/87. This time, the review concerns two Ordinances adopted with a view to implement Decree-Law no. 323/83, of 5 July 1983, precisely the object of review in judgment no. 423/87. The constitutional review was requested by a group of 28 Members of Parliament who argued that one of the Ordinances was formally unconstitutional, for instituting an innovative regime in an area reserved to the Parliament, and that both Ordinances were materially unconstitutional, for violation of the principle of separation between Church and State. The Constitutional Court reviewed both Ordinances from the perspective of their formal and material constitutionality, and concluded that none of the norms under review was unconstitutional, on the grounds that both Ordinances had merely prescribed what was required by Decree-Law no. 323/83 (with which they had a “functional or logical link”) and, like Decree-Law no. 323/83 (once its Article 2 was expunged), did not breach the constitutional principles of religious freedom, separation of Church and State, non-confessional character of public education and equality. The Court is once again sensible to the importance of “cultural information”, using it to justify the State’s obligation to provide religious education in public schools and the “diverse treatment” enjoyed by the Catholic Church in this field. The information concerns the “historical and sociological reality” in which the Catholic Church is placed, but also the importance that religion has in peoples’ lives. At some point the Court notes that the “State cannot close its eyes to the social dimension of the religious phenomenon”, since the believers are also citizens whose religious needs the State must ensure. These needs – to be satisfied by the State – include, according to the Court, the believers’ freedom to regulate their social relations in accordance with their view of life and in conformity with the scale of values provided by their faith. It is interesting that the Court goes as far as making such a concession, in particular if we think of the social alarms triggered in several European States about the possibility of Muslims regulating the social relations in accordance with the Islamic worldview and scale of values [see e.g. MALEIHA MALIK, Minority Legal Orders in the UK: Minorities, Pluralism and the Law, London, The British Academy, 2012]. Of course, it is most likely that, when making that statement, the Court was not thinking about other believers besides Catholics. Like in judgment no. 423/87, the Court seems to underestimate the religious diversity present in Portuguese society, even it alludes to the “various religious confessions which, beside the Catholic Church, are established in Portugal”. The theoretical opposition that the Court uses to discuss the principles of separation between Church and State and of non-confessional nature of public education continues to be that which pits Catholicism against Atheism. In the examples offered, the Court never allows for the possibility of the class teacher being Muslim, Jehovah Witness or a believer of another faith, but instead only of him being a “fierce atheist” and, therefore, as “dangerous” as a Catholic teacher who is unable to stay neutral when teaching non-religious subjects. This juxtaposition Catholic/Atheist can also help explain how the Court could, at the same time, hold that the State has an obligation to cooperate with parents in the (religious) education of their children and underestimate the consequences for parents and students of other faiths of having the class teacher teach Catholic Religion and Morals.

 

2. The possibility of having primary school teachers teaching Catholic Religion and Morals was the main constitutionality question raised by Ordinance no. 333/86, as acknowledged by the Court. No. 14 of the Ordinance prescribed that the course could be taught by a primary school teacher, a parish vicar or another suitable person. When the course was taught by the class teacher, it had to be “scheduled in the most suitable way from the point of view of the pedagogical arrangements of school planning” (no. 2), and the students who did not attend the course had to be allocated to other classes, in order to stay occupied for the duration of the religious course or, if that was not possible, had to be kept occupied by the parents, guardians or other members of the community (no. 11). The Court rejected the view that these provisions were formally unconstitutional with the following arguments: (a) the options about who could teach the course had not been adopted ex novo by no. 14 of Ordinance no. 333/86, since they were already present, in their key aspects, in paragraphs 1 and 2 of Article 5 of Decree-Law no. 323/83 and in Article XXI of the 1940 Concordat, which, in their general phrasing, covered both the cases in which the teacher was a person not yet belonging to the primary school faculty and the cases in which the teacher was already part of the school faculty; (b) the provisions in nos. 2 and 11 were “typically organisational”, covering the “technical details pertaining to the organisation of the teaching of Religion and Morals when the teacher of this course is also the teacher of the other courses to the same class”. In what concerns the possible material unconstitutionality of these provisions, the Court started by noting that the teaching of the course by the parish vicar or another suitable person did not raise specific questions of constitutionality, but admitted that there could be constitutionality questions regarding the possibility of the course being taught by the class teacher, who, being the “only teacher”, was simultaneously teacher of Catholic Religion and Morals and of the other courses in the school curriculum. The Court found, nevertheless, that there had been no violation of the constitutional principles of separation between Church and State, non-confessional character of public education and religious freedom. The Court admitted as undeniable that the fact that the same teacher taught the curricular courses and Catholic Religion and Morals would have “a certain symbolic weight”, likely to give the idea that the teaching of this course was “State education” and to “give rise to a certain reverential fear in the parents, leading them to register their children in the course even in the absence of strong religious convictions”. In the Court’s view, however, the “double representation” of State and Church by the class teacher did not transform the teaching of the course in a State task, since, in the “system” of Ordinance no. 333/86, the teaching of this course was a responsibility of the Church and not of the State. The Court recalled that only class teachers recommended by the Church could teach the course. “This entails that the primary school teacher, as Catholic Religion and Morals’ teacher, does not come across as an emanation from the State, but instead as an emanation from the Church, since he is generated in the community of believers”. The Court also noted that “the principle of separation between Church and State, if stripped of a strict meaning, does not necessarily forbid double representation”. As an example of this, the Court pointed to the fact that priests are allowed to officiate Catholic weddings to which the law grants civil effects. The Court dismissed the risk of having the class teacher imbuing the teaching of the other courses with an “understanding of man, the world and life inspired by the principles of the Christian faith”, considering that, if that were to occur, it would not be directly linked to the education system, but instead to the teacher’s personality. The Court added also that the risk of having the other courses imbued by the teacher’s “worldview” is present whenever the teacher (either a Catholic or a “fierce atheist”) fails to comply with the rules of impartiality and neutrality. A similar reasoning is applied to the risk of having the parents feel “coerced” to register their children in the Catholic Religion and Morals course for fear that the teacher, being the class teacher, may otherwise harm their children. The Court’s understanding is that “that is a risk similar to the one which exists when the teacher is a militant atheist”. According to the Court, the essential core of religious freedom is not hindered by the risk of “reverential fear”, since that is the “risk always involved in the exercise of religious freedom, which is, itself, a rebel (and liberating) cry against the State’s omnipotence and a statement of the person’s sovereignty over State’s sovereignty”. After having “solved” the fundamental question of the constitutional legitimacy of teaching Catholic Religion and Morals in primary schools, the Court concluded that the provisions in numbers 2 and 11 of Ordinance no. 333/86, due to their merely organisational character, were also not in breach of the constitutional principles invoked. The provision in no. 11 deserved, in any case, further considerations. The Court allowed for the possibility that this provision, to the extent that it provided for the occupation of students not attending the Catholic Religion and Morals course, had been repealed by Decree-Law no. 286/89, of 29 August 1989, which had established the functioning, as an alternative, of the courses Personal and Social Development, Catholic Religious Education or other confessions’ religious education. This would mean that, in the cases foreseen by no. 11, the students would have to attend the Personal and Social Development course. The Court noted, however, that this course was not yet available in all primary schools, for lack of suitable faculty members, and therefore the provision in no. 11 continued to be applied at least in some primary schools. The Court also considered as possible that the mandatory attendance of alternative activities could violate the students’ religious freedom, recalling the example of the Italian constitutional jurisprudence, in light of which that would certainly be the case. The Court distanced itself, however, from its Italian counterparts, arguing that primary school children, given their tender years, had not sufficient maturity to be able to enjoy the “stato di non obbligo”, and this gave constitutional legitimacy to the provisions imposing mandatory forms of keeping the students occupied. The Court even argued that the existence of mandatory alternative activities could be seen as necessary to safeguard religious freedom, since it prevented that the exercise of this fundamental right could be influenced by “elements exterior to individual conscience”, such as the parents’ interest in not having their children “abandoned or left to themselves” for the duration of the Catholic Religion and Morals course.

 

3. The remaining provisions of Ordinance no. 333/86 under review prescribed the following: (1) the course Catholic Religion and Morals is the responsibility of the Catholic Church and is an integral part of the primary school curriculum, at the same level of the other courses; (20) the course’s programme, under the responsibility of the episcopate, is drafted by the Church’s services and sent to the Ministry of Education and Culture for officialization and publication, whenever possible, together with the programme of the other courses; (23) pedagogical support and teacher training in the area of Catholic Religion and Morals are provided by the services of the Ministry of Education and Culture, in conditions identical to those foreseen for the other courses. Again, the Court held that these provisions could not be deemed to constitute an “innovative regulation, of interpretative or integrative character, in the Parliament’s reserved area of legislative competences”, which could amount to formal unconstitutionality. The Court took the time, in any case, to analyse two aspects – the use of the term “officialization”, in no. 20, and the reference to teachers’ training in no. 23 – concluding, in this respect, that both provisions could be interpreted “in conformity or in harmony with the Constitution”, which meant that they are also not materially unconstitutional. As for the first aspect, the Court refused to give a particular meaning to the addition of the term “officialization”, arguing that this only meant that “the dissemination is made by an official or public entity (conveying, therefore, a reality identical to that of publication) and, also, that the course programme approved by the competent ecclesiastical authorities is the official (i.e. the only) programme, but does not suggest that the Religion and Morals course programme must go through an approval or assessment on the part of the Ministry of Education in such terms that the State would be co-responsible for it”. Regarding the second aspect, the Court considered that no. 23, when mentioning that the training of teachers in the area of Catholic Religion and Morals was to be provided by the services of the Ministry of Education, had not exceed what was already prescribed by Article 3(2) of Decree-Law no. 323/83. This was so, not only because the phrasing of Article 3(2) was merely illustrative (as indicated by the use of the adverb “namely”), but also because the concept of “pedagogical support” used in the Article may be understood with a broad meaning to cover the training of teachers. The Court clarified, in any case, that the training referred to by no. 23 of Ordinance no. 333/86 is not a training “for which the State is directly or indirectly responsible. It is a training for which the Catholic Church is responsible, since the trainers are chosen or suggested by this entity”. According to the Court, no. 23 does not require that the services of the Ministry of Education supply training to the Catholic Religion and Morals’ teachers, “but instead that said services provide these teachers with «logistic conditions» to attend training programmes promoted by the competent ecclesiastical entities [e.g. by granting leaves of service to teachers wanting to attend training sessions, reimbursing expenses or per diem and (or), also, by paying the trainers]”. The Court believes that this support by the State is justified “in the name of the principle of collaboration (cooperation), which is not incompatible with the principle of separation”. In what concerns the possible material unconstitutionality of the provision in no. 1 of Ordinance no. 333/86, the Court notes that the inclusion of this provision in the review request was meant to question the constitutional legitimacy of teaching Catholic Religion and Morals in primary schools, a question that the Court considers to have answered in judgment no. 423/97. “Well, to this constitutionality question, the Constitutional Court replies in the same way it did in judgment no. 423/87, about the provisions in Decree-Law no. 323/83, of 5 July. And the answer is naturally that the provision in no. 1 of Ordinance no. 333/86 does not infringe the constitutional principles of separation between churches and State and non-confessional character of public education, because the predominant and truly defining trait of the teaching thereby framed «points to its non [sic] confessional nature, i.e. it is a teaching administered at school by a religious confession, and not a teaching at school and by the school»”.

 

4. Ordinance no. 831/87, of 16 October 1987, on the inclusion of the course Catholic Moral and Religious Education and its Didactics in the programmes for the training of kindergarten and primary school teachers, also passed constitutional muster without much difficulty. Although the Ordinance was challenged as a whole, the Court limited its reasoning to the review of a few key provisions: no. 1, where it was established that teacher training colleges and teacher training centres at universities that trained kindergarten and primary school teachers were required to provide to the future teachers who so wanted it the adequate training so that they could come to take on the religious and moral education of their students; no. 2, where it was foreseen that the study plans for training of kindergarten and primary school teachers should include a course of Catholic Moral and Religious Education and its Didactics, as part of the curriculum as an optional course; no. 4, where it was established that the design of the course programme, as well as its changes, was the competence of the Portuguese Episcopal Conference, through the Episcopal Commission of Christian Education, which should send it to the Ministry of Education; no. 7, according to which the course’s lecturers were bound by the rules in the Teaching Career Statute in force for the higher education institution at stake, besides having to have their hiring agreed to by the diocese bishop; and no. 9, under which the kindergarten and primary school teachers who passed the course were considered apt to take on the responsibility of teaching religion and morals to their students. The possibility of these provisions being formally unconstitutional was dismissed by the Court with the argument that they were a mere logical consequence of Article 6 of Decree-Law no. 323/83, where it was established that the teaching of Catholic Religion and Morals was to be ensured, with the appropriate characteristics, at teaching schools and those designed to train kindergarten and primary school teachers, as an optional course designed for the nature of their respective tasks. The Court rejected the view that this Article 6 had been repealed by Article 47(3) of Law no. 46/86, of 14 October 1986 (Basic Law of the Educational System), where the teaching of Catholic religion and morals was only foreseen for the basic and secondary schools, with the argument that Article 6 was a special provision vis-à-vis the Basic Law. The Court also rejected the view that the contested provisions breached Article XXI of the Concordat, which did not foresee the teaching of Catholic Religion and Morals in the educational institutions covered by the Ordinance, with the argument that it was perfectly legitimate to interpret Article XXI of the Concordat as allowing the teaching of the course at all the schools that, on the date of its entry into force, were not yet included in the higher education system. According to the Court, Ordinance no. 831/87 had not widened the list of studies foreseen by Article 6 of Decree-Law no. 323/83, having merely updated the terminology to include educational institutions that had in the meantime inherited the attributions of the teaching schools referred to in this Article. In the Court’s view, it was irrelevant that these schools were not part of the higher education system on the date of the entry into force of that legal diploma. As for a possible material unconstitutionality, the Court said that Ordinance no. 831/87 was mostly an instrumental diploma for Ordinance no. 333/86, since it set the conditions for future primary school teachers to feel apt to teach Catholic Religion and Morals to their students. For this reason, the Court held that the comments made a propos Ordinance no. 333/86 were applicable here mutatis mutandis. First of all, the teaching of the course did not appear as a State task, but instead as a mission of the Catholic Church, as indicated inter alia by the fact that the course programme was the responsibility of the Portuguese Episcopal Conference and that the hiring of teachers for that course required the previous agreement of the diocese bishop. The State was only responsible for the payment of the teachers’ salaries and “the definition of some organisational aspects”, which, according to the Court, “are still within the limits of tolerance of the principle of separation or laicity”. In the Court’s view, the inclusion of the course in the study plans of teacher training colleges and teacher training centres was furthermore justified as a fulfilment by the State of its duty to cooperate with the parents in the education of their children, prescribed by Article 67(2)(e) of the Constitution, since it was “a necessary device to render effective the teaching of Catholic Religion and Morals at kindergarten and primary school levels”.

 

5. The Court’s reasoning often recalls the arguments put forward in judgment no. 423/87, but it also adds a few new notes on the content of religious freedom and of the principles of separation and non-confessional character of public education. The Court explains that the fundamental right to religious freedom granted by Article 41(1) of the Constitution includes the “freedom to have a religion, to choose a given religion and to practice it alone or together with others, to change religion and to not adhere to any religion”, drawing close to the phrasing of Article 18 of the Universal Declaration of Human Rights. When elaborating on the negative and positive dimensions of religious freedom – identified in judgment no. 423/87, the Court states that the negative dimension “is characterised, above all, by an «immunity from coercion», with the meaning that no public or private entity may impose on another the adherence and practice of any religion”, and that the State cannot “claim the right to impose or prohibit the profession and public practice of the religion of a person or of a community”. The positive dimension, on the other hand, requires from the State, “not a pure omission, an abstention, a non facere, but a facere translated in a duty to ensure or provide for the exercise of religion. The believer is, simultaneously, a citizen, the religious needs became a legal asset to be ensured by the State and religious freedom a basic guiding criterion for the action of public powers vis-à-vis the religious phenomenon”. The Court portrays freedom of religion as a “rebel (and liberating) cry against the State’s omnipotence and a statement of the person’s sovereignty over State’s sovereignty”, adding that its exercise always involves risks for individuals. As for the principle of separation between Church and State, the Court treats it as a logical consequence of the constitutional guarantee of religious freedom, with the meaning that the State must present itself, in religious matters, as a neutral State. This means that the State cannot “act as a doctrinal State, nor claim the right to program education and culture according to religious guidelines or to organise and keep a confessional public education”. In an apparent equivalency between religion and culture, the Court states that “any form of cultural direction would hurt the common good and undermine the foundations of the rule of law”. It also affirms that the State cannot impose on citizens “any forms of understanding man, the world and life”. According to the Court, the duty of neutrality does not mean, however, that the State should (or could) be agnostic or profess atheism or laicism, the same way that the rule of separation does not mean that the State could not (and should not) cooperate with the churches, namely, in the provision of religious education in public schools. This is because, in the Court’s view, the State only respects freedom of religion if it creates the conditions for the citizens/believers to be able to fulfil their religious obligations and for the religious communities to be able to fulfil their mission. According to the Court, public education is precisely one of the domains in which the State must create conditions for the exercise of religious freedom, by providing to the different religious confessions the teaching of their respective religions, in public schools, to the students who express the wish to receive it. The principles of separation and non-confessional character of public education cannot be “understood in such a rigid way as to hinder the collaboration of the State with the churches and other religious communities. The collaboration of the State with churches is even a State obligation, which is grounded in religious freedom in its positive dimension and in the State’s duty to cooperate with parents in the education of their children, and is limited by the principles of State laicity and non-confessional character of public education”. When assessing the provisions under review in light of the equality principle, the Court merely replicated the arguments put forward in judgment no. 423/87, namely that the diverse treatment granted to the Catholic Church is justified by the “historical and sociological reality in which it is placed”, and that the lack of legal diplomas granting a similar treatment to the other religious confessions could amount to an unconstitutionality by omission, out of the scope of the case sub judice.

 

6. The Court was once again divided when voting this judgment, albeit in a less “impressive” way – to cite Justice Monteiro Dinis – than in judgment no. 423/87. This time, of the thirteen justices making up the panel, “only” six voted against the ruling. Monteiro Dinis, who had been the rapporteur of judgment no. 423/87, voted against the ruling on the grounds that the provisions in nos. 2, 11, 14 (segment allowing the teaching of the course by the class teacher) and 23 (segment pertaining to the training of the course teachers) of Ordinance no. 333/86 and all the provisions in Ordinance no. 831/87 were unconstitutional. Revisiting judgment no. 423/87, Monteiro Dinis acknowledged that “the interpretation in accordance with the Constitution that had been attempted there was at the limits of constitutionality, since the traits characterizing the education as confessional education alien to school and State were very tenuous, even though that was ultimately its nature”. While Decree-Law no. 323/83 still allowed, even if barely, an interpretation in accordance with the Constitution, the same could not be said, in Monteiro Dinis’ view, of Ordinances nos. 333/86 and 831/87, where the State takes on a “qualified protagonism” in the teaching of Catholic Religion and Morals in public schools, to such an extent that this teaching, “at least in its visible external projection, is presented as a public matter, as a State matter”, in breach of the principles of separation between Church and State, non-confessional character of public education and religious freedom. In his view, what results from the Ordinances is a double organisational structure, of a permanent professional basis, for the teaching of the course in primary schools, with the authorisation of the class teacher (“State teacher and not Church teacher”) to administer the course to his own students and the authorisation of certain higher education institutions to offer pedagogical-religious training to their students, “not so much with the goal to ensure their individual development and enrichment, but with the specific objective of later allowing them to use that training as teachers of that course in public schools”. In what specifically regards the principle of equality, Monteiro Dinis argued that his reasoning in judgment no. 423/87 was not applicable here, since, in case of teaching of religion by the class teacher, “by the nature of things, it is not materially possible that one single teacher may administer the classes of different religious confessions”, which makes it impossible for the State to correct the inequality of treatment between the Catholic Church and the other religious confessions. “The fact that the class teacher can teach, simultaneously, Catholic Religion and Morals and the other courses in the curriculum contains in itself a structural normative vice that cannot be eliminated by widening that system to other religious confessions, since it is a logical and material impossibility, the only answer to such vice being the elimination of the system that allows the dual representation”. Luís Nunes de Almeida, who had already voted against judgment no. 423/87, António Vitorino and Armindo Ribeiro Mendes issued a joint dissenting opinion in which they expressed their vehement disagreement with the majority’s ruling, arguing that both Ordinances as well as Decree-Law no. 323/83 were in breach of the Constitution. The joint dissenting opinion goes back to many of the arguments put forward by Luís Nunes de Almeida about Decree-Law no. 323/83, considering that they are applicable mutatis mutandis to the assessment of the Ordinances under review, but adds that there are “qualified motives” to hold the Ordinances unconstitutional, even in the light of the already “excessively permissive” criteria adopted by judgment no. 423/87, “now, in practice, simply pulverized”. As they say, “when we reach a point of allowing not only the parish vicar or another suitable person, suggested by the ecclesiastic authority, to teach Catholic Religion and Morals, but also that such teaching can be entrusted to the class teacher – as civil servant and during the hours in which he should be teaching other curricular courses –, then surely we can no longer say that we are still before a teaching administered at school by the religious confession”. The joint dissent opinion reproaches the majority for taking as its premise the idea that the principle of separation only works in one direction, i.e. to protect the Church from State interference. It argues that a “current understanding of the principle of separation – based on collaboration and not on conflict between State and churches – requires the guarantee of autonomy and independence for both sides. Neither the Church shall be subordinate to the State – as has happened in the past – nor the State shall be subordinate to the Church. And this, both in reality, and in appearances: the same way the State cannot present itself as atheist or agnostic nor be confused with a religious confession, it can also not be seen to adopt any of these attitudes, because that means, of itself, a breach of its mandatory neutrality on the matter, which conflicts, first of all, with the citizens’ beliefs; and this, without ever forgetting that religious freedom covers both the freedom to profess a certain religion and the freedom to profess no religion”. Regarding the principle of equality, the joint dissenting opinion notes inter alia that it is “violently hit when, in a truly aberrant way, it is admitted that the parents who do not want their children to receive religious education are to be forced to take care of them, during school hours!”. Against the thesis that the lack of provisions for the religious teaching of other confessions amounted to an unconstitutionality by omission, the joint dissenting opinion notes that such reasoning, if taken to its limit, could lead to the absurd situation of considering as not unconstitutional a legal provision that only granted pensions to persons of a certain race with the argument that, for the persons of other races, there would only be an unconstitutionality by omission. Regarding the State obligation to cooperate with the parents in their children’s education, the joint dissent opinion considers that it does not cover the organisation of a course administered to adults at teaching training schools and designed to allow said teachers to be chosen in the future by the ecclesiastic authorities to administer the course of Catholic Religion and Morals to their students. “That constitutional provision is given a reach that it does not allow and which could ultimately lead to holding that the State is obliged to create and support seminaries, since the religious education of children is surely not possible if there are no priests”. In his dissenting opinion, José de Sousa e Brito brings to the review of Ordinances nos. 333/86 and 831/87 the “complex historical evolution of Western Christian civilisation and of the Portuguese society in particular”, which resulted in an understanding of the principle of separation as a “human right”, i.e. as an aspect of religious freedom. Justice Sousa e Brito notes inter alia that (a) the “jurisdictionalist regime” established by the 1940 Concordat stopped being in line with the Catholic Church’s doctrine after 7 December 1965, when Pope Paul VI promulgated the declaration Dignitatis humanae; (b) the protection of religious freedom by the 1976 Constitution aligned Portuguese law with the Catholic doctrine, which explains the consensus observed during the voting of Articles 41 and 43 of the Constitution; and (c) “all provisions in the 1940 Concordat which establish privileges for the Catholic Church or in sacra rights for the State were repealed by the Constitution”.

 

7. This judgment was the object of harsh criticism in the literature. Merely as an illustration, we can point out the comments made by Gomes Canotilho, Jónatas Machado and Paulo Pulido Adragão. Gomes Canotilho refers to this judgment as an academic example of an unconstitutional constitutional amendment by means of a judicial decision. Among other solutions that he deems aberrant, Canotilho criticises the fact that the Court makes an interpretation of the 1940 in accordance with the Constitution that allows it to consider inadmissible the restrictions to rights of the Catholic Church and acceptable that the Church invades the State’s public space to the point of having the teaching of Catholic Religion and Morals be organised as a public service of the State. Other aspects deserving rebuke include the emphasis put by the Court on the positive/provider dimension of religious freedom, because when the State subsidises a Church it hinders the right to religious self-determination of other churches and the principle of equality for all religious confessions, as well as the fact that the Court transforms the State’s social duty to cooperate with parents in their children’s education into a right of some parents and of one Church [see J.J. GOMES CANOTILHO, “Anotação ao Acórdão n.o 174/93 do Tribunal Constitucional”, Revista de Legislação e Jurisprudência, year 126, nos. 3832 to 3834, 1994, pp. 271-278]. Jónatas Machado considers that this judgment is a good example of a lost opportunity in the effort to humanise the legal discourse and regrets that the Court accepted as constitutionally admissible an absurd system of accumulation of tasks as class teacher and religion teacher, combined with the option of leaving the room to non-adhering children, a solution highly conducive to stigmatic injuries [see JONATAS EDUARDO MENDES MACHADO, Liberdade Religiosa numa Comunidade Constitucional Inclusiva: Dos Direitos da Verdade aos Direitos dos Cidadãos, Coimbra, Coimbra Editora, 1996, pp. 179, 379-380]. In the opposite field, Paulo Pulido Adragão agrees with the ruling, saying that the public school teacher does not represent the State nor the people as if he held political office. In Adragão’s view, the teachers perform their teaching obligations on behalf of the State, while at the same time being concrete persons with specific religious options. Adragão nevertheless criticises the Court for not being able to solve what in his view is the contradiction between a positive understanding of religious freedom and the affirmation of religious neutrality as a constitutional principle [see PAULO PULIDO ADRAGÃO, A Liberdade Religiosa e o Estado, Coimbra, Almedina, 2002, pp. 456-457, 444].

 

8. In 2001, The Religious Freedom Act (Law no. 16/2001, of 22 June 2001) set new and different rules for some of the key issues addressed in this judgment, by prescribing that religious and moral education is optional and not alternative to any area or curricular activity; that the teachers in charge of administering religious teaching cannot simultaneously teach to the same students other disciplinary or training areas, save for duly recognised cases of clear difficulties in applying the principle; and that it is incumbent on the churches and other religious communities to train the teachers [Article 24(2)(4) and (5)]. Even so, Ordinance no. 333/86 stayed in force and its applicability was confirmed by Decree-Law no. 70/2013, of 23 May 2013, which established the new legal regime for the course Catholic Religious and Moral Education, to be administered in public school institutions and under the supervision of the Ministry for Education and Science. Ordinance no. 831/87 was repealed by Decree-Law no. 43/2007, of 22 February 2007, which approved the legal regime of the professional qualification for teaching at kindergarten, primary and secondary school levels.

Patrícia Jerónimo

Citar como: JERÓNIMO, Patrícia, “[Anotação ao acórdão do] Tribunal Constitucional n.º 174/93, 17.02.1993”, 2020, disponível em https://inclusivecourts.pt/jurisprudencia2/

REFERENCES IN THE LITERATURE:

ADRAGÃO, Paulo Pulido, A Liberdade Religiosa e o Estado, Coimbra, Almedina, 2002.

ADRAGÃO, P.P., and GONÇALVES, D., “Educação religiosa nas escolas estatais”, in J.L. Martínez López-Muñiz et al. (eds.), Religious Education in Public Schools: Study of Comparative Law, Yearbook of the European Association for Education Law and Policy, vol. 6, Dordrecht, Springer, 2006.

CANAS, Vitalino, “État et Églises au Portugal”, in Gerhard Robbers (ed.), État et Églises dans l’Union Européenne, 2nd ed., Trier, Institute for European Constitutional Law, 2008, pp. 470-500.

CANOTILHO, J.J. Gomes, and MOREIRA, Vital, Constituição da República Portuguesa Anotada, vol. I, 4th ed. rev., Coimbra, Coimbra Editora, 2007.

CANOTILHO, J.J. Gomes, and MOREIRA, Vital, Constituição da República Portuguesa Anotada, vol. I, 4th ed. rev., Coimbra, Coimbra Editora, 2007.

FOLQUE, André, “Religion in public Portuguese education”, in Gerhard Robbers (ed.), Religion in Public Education, European Consortium for Church and State Research, 2011, pp. 399-424.

MACHADO, Jónatas Eduardo Mendes, Liberdade Religiosa numa Comunidade Constitucional Inclusiva: Dos Direitos da Verdade aos Direitos dos Cidadãos, Coimbra, Coimbra Editora, 1996.

MIRANDA, Jorge, “Estado, liberdade religiosa e laicidade”, Gaudium Sciendi, no. 4, 2013, pp. 20-48.

MIRANDA, Jorge, and MEDEIROS, Rui, Constituição Portuguesa Anotada, vol. I, 2nd ed., Coimbra, Coimbra Editora, 2010.

 

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