FREEDOM OF CONSCIENCE AND RELIGIOUS SYMBOLS

Currently, there are many countries that have changed to a non-denominational or

secular regime from a confessional tradition, as has happened in Spain. This factor,
linked to the increase of non-believers, makes more frequent the debates about the non-
denominational nature of the State and its exact content and meaning.
A field in which this controversy has had the greatest projection is in religious symbols,
which is the topic of today. First, we are going to talk about the use of personal religious
symbols in different context and after, about the use of religious symbols in public
places. So, there are two types of symbols: personals and static.
Therefore, in contemporary Western societies not only in Spain, there are increasing
conflicts between of conscience and legal obligations stemming from the fact that some
people consider a moral duty to wear symbols or garments that express their religion.
While normally conscientious objections are caused by incompatibility of moral duties
with neutral laws, an interesting characteristic of the conflicts related to religious
symbols is that, sometimes, the legal rules in question have been specifically designed
to prohibit visible expressions of religiosity, as has occurred in Europe with female
clothing attached to certain interpretations of Islam.
The first point of the topic that we are going to talk about is:
I. The Use of Personal Religious Symbols in the School Environment
In recent times, there has been in Europe a significant number of clashes
between students or teachers that wore a particular religious garment for considering it a
moral duty, and state laws supposedly aimed at guaranteeing the neutrality of the
public-school environment, which was in turn deemed an indispensable element to
guarantee the spirit of tolerance and respect in school.
The legal treatment that can be granted to religious symbology in state educational
establishments is very varied, because the regimes of democratic countries in terms of
educational rights are also very diversified.
In Spain, there is no national or regional legislation on the issue of religious
clothing in public schools and therefore its regulation is in the hands of the school
boards. Normally, the internal rules of schools refer to clothing in general rather than to
religious garments in particular and tend to be applied with flexibility.
There have been only two known cases, both of them in the region of Madrid, which
gathers a high percentage of the Muslim population of Spain:
- The first one, in 2002, related to a 13-year old Moroccan student that
remained several months without schooling because the (state funded) Catholic
school in which she was registered prohibited the use of hijab, by reason both of
its religious ethos and its rules on the students' uniform. As neither the student's
parents nor the school made their respective positions more flexible, regional
public authorities found a practical solution consisting in transferring the student
to a nearby public school where such prohibition did not exist.
 - The second case occurred in 2010 and generated a more intense attention
from the media as well as a judicial decision. The problem arose when the board
of a public school in the town of Pozuelo (near Madrid) forbade a young Muslim
student to wear her hijab, in a strict interpretation of the internal regulations that
vetoed the use of caps or any other head-covering garment' while in school. The
student had begun to wear a hijab when she turned 16 and was sanctioned (with
a written warning) for disobeying the school rules (despite the fact that these
rules respect for their identity and moral integrity and dignity, as well as respect
for their 'freedom of conscience, religious and moral convictions’.) The student
decided to stop attending classes and registered in other nearby public school
shortly afterwards. In any event, her father initiated an administrative review
procedure and later a judicial procedure against the school sanction. In 2012, a
Court of First Instance rejected his claim with a judgment that justified the
school board's position by reference to the European Court's case law, indicating
that the board was free to interpret the notion of public order as excluding the
use of veils.
It is worth noting that, when the sanctioned student was looking for a new
educational center to register, a nearby public school modified its internal rules, through
an urgent procedure, to ban the use of head-covering garments. For the author,
limitations on religious freedom must be grounded on consistent and concrete
arguments, and not just on vague references to general concepts, so he thinks that a
more accurate regulation of the wearing of religious symbols at school is needed at a
national level.

II. The Use of Personal Religious Symbols in Public Spaces

The use of religious clothing in identification photographs has raised some
questions with regard to the interests of public security in different countries. Spanish
regulations on identification documents is sufficiently flexible as to permit providing
personal photographs wearing a hijab and most common religious garments, but
obviously not a burka or niqab, which cover the entire face of the woman.
The regulations on the issuing of passports, of 2003, simply require that
the applicant provides a recent color photograph taken from the front, without dark
glasses or any other garment that may prevent or make difficult the identification of the
person.
In fact, the information available in the official Internet pages that explain the
application procedure for driving licenses specify that photos with a headscarf are
acceptable provided that the oval of the face appears totally uncovered.
The use of full veils that cover the entire face of women - such as burka
or niqab - in public places has become a controversial question in some European
countries in recent years. Some countries, as France and Belgium, have adopted strong
legislative measures to prohibit wearing such garments in any public area.
A similar debate has taken place in Spain at both national and local level.
At a national level, the Spanish Senate approved in June 2010, by a narrow
margin (131 to 129 votes), a motion requiring the government to promote legislative
and administrative reforms aimed at banning full-face covering clothing in public
spaces or events that do not have a specific religious purpose.
A few weeks later, the motion was rejected in the Congress. However, the Congress
accepted the presentation, some days later, of a non-legislative proposal by another
parlamentary group, which asked the government to 'request from the Council of State a
study on the possibilities of regulation of the full veil within the legal order in force'. No
such study has been done to date.
At a local level, around the same years, several city councils in the region
of Catalonia - including the provincial capitals Barcelona, Tarragona and Lérida,
enacted municipal ordinances prohibiting the use of full veil in municipal facilities.
A judicial appeal against the ordinance of Lérida, alleging that city councils did not
have competences on fundamental rights, was decided by the Superior Court of Justice
of Catalonia in 2011. The ordinance forbade 'the access or permanence in places or
facilities destined to the public use or service to those people wearing full veil,
balaclava, full-face helmet or other clothing or items that prevent the identification and
the visual communication of persons, when those items are prohibited or restricted by
the specific rules' of the relevant public facility.
The Court sustained the validity of the ordinance, holding that the city council had acted
within its competences when it enacted a rule that was based on reasons of public order.
The reasons of public order mentioned by the Court were: the connection between
visual identification of people and public security in public facilities; and the fact that
hiding one's face in daily life caused anxiety and worry in surrounding people, except
when it was required by the weather or by the performance of certain jobs. The Court
also indicated that the use of burka or similar garment, which is done exclusively by
women, was not compatible with the principle of equality between men and women,
even if the latter wear it voluntarily.
However, that decision was overruled by the Supreme Court in a judgment of 2013,
which declared the ordinance of Lérida null and void for violation of the freedom of
religion protected by Article 16 CE. The Court's rationale focused on the lack of
competence of city councils to regulate fundamental rights guaranteed by the
Constitution.
The Supreme Court held that municipal by-laws may impose limitations on religious
freedom only on the bases of a prior ad hoc legislation, as required by Article 53.1 CE.
In the absence of such legislation, Lérida's by-laws prohibiting the use of garments that
constitute a manifestation of religion for some women must be considered invalid, with
one exception, namely the regulation of the city public transportation service, which
requires the identification of passengers with personal cards that permit the use of
public transportation at a reduced price.
In any event, the Court's judgment explicitly made clear that the legislator was
competent to impose limitations on the use of full veil, if it considered it appropriate.
 III. The Use of Personal Religious Symbols at Work
In the area of labour relations there have been, in various European countries,
conflicts between the employer's rules and the use of garments of religious significance
while at work.
In Spain, one case of this kind was decided by the Superior Court of Justice of Baleares
in 2002. The case related to a Jewish bus driver that worked for the municipal
transportation service (Empresa Municipal de Transportes) of Palma de Mallorca. After
several years wearing a cap at work on religious grounds, as a sign of respect for God,
he was sanctioned by the company for not complying with the rules on uniform. The
Court decided in favour of the employee, noting that imposing a uniform on employees
is part of the employer's right to control and manage his business, but is not an
unlimited right, for it may collide with employee's fundamental rights, as religious
freedom. In the Court's view, such conflicts are not susceptible of only one a priori
solution and must be analyzed taking into account the particular circumstances of each
case, especially considering if the employee's religiously motivated behavior caused any
harm to the employer's legitimate interests. In this occasion, the Court concluded that
there was no such harm - indeed, the employer had not even hinted at such possibility
when arguing in court - and consequently sanctioning the employee denoted an attitude
'close to authoritarianism'. The Court also remarked that sanctioning an employee
because of a harmless expression of religiosity was even less acceptable in the case of 'a
municipal company that was part of the public sector and, therefore, more committed
than private employers to the effective compliance with constitutional values.
Another, more recent, case was decided by an employment court of first
instance in Mallorca in 2017, also in favour of a broad protection of religious freedom.
A female islamic employee of a handling company at the airport of Palma de Mallorca
was prohibited from wearing her hijab at work - and sanctioned because of her refusal
to comply with the prohibition. The company alleged the contractual rules on the
employees' uniform, which in its opinion contained a closed list of wearable items.
The Court decided in favour of the employee, arguing on the basis of the Spanish
Constitution, the EU law (especially the Council Directive 2000/78/EC), the ECHR
and the case law of the Strasbourg Court (especially in the Eweida case). In the Court's
view, the employer had treated the employee's hijab as a mere decorative garment and
ignored its religious dimension, thus failing to make any effort to accommodate the
general rules on uniform to the plaintiffs religious freedom. The Court noted also that
the rules on uniform did not contain any prohibition of Islamic headscarves, that the
company did not have any specific policy of religious neutrality, and that other
employees were permitted to wear crosses, piercings or tattoos in apparent
contraventions of uniform rules without any reaction from the company's management.
Considering that the employee did not intend to substantially alter her employment
contract but just to observe what she considered an important moral obligation in
exercise of a constitutional freedom, the Court concluded that she had been
discriminated on the ground of her religious beliefs.
 IV. "Secular' Objections to the Use of Religious Symbols in Public
Institutions
When a country with a confessional tradition change to a regime of non-
denominational or secularism, as has happened in Spain, is not uncommon conflicts
arise about the legitimacy of the presence of religious objects or symbols in public
spaces.
The most frequent case of conflicting religious symbols in public spaces is that of the
crucifixes in public school classrooms, or in council plenary rooms (at least, in Spain).
This presence is explained, in most cases, by pure inertia or deep-rooted traditions. The
problem is that for some people the presence of said symbol -identified with the
Catholic Church- is incompatible with the non-denominational nature of the State. In
other cases, their presence attack on their own religious freedom or belief and
conscientious objection.
In the educational environment, we can mention a case that attracted
considerable media attention and was resolved by a decision of the Superior Court of
Castile and León in 2009.
The case originated in a complaint about the crucifixes that hung on the classrooms of a
public school in Valladolid. A cultural association, following the unsuccessful request
of some students’ parents to the school board, demanded that the crucifixes were
removed from the classes and all common spaces of the school. The Court of First
Instance decided in favour of the plaintiffs and ordered the immediate removal of all
crucifixes, on the ground that the display of religious symbols in an educational center
could generate in young students the 'feeling' that the state was ‘closer’ to the Christian
religion than to other worldviews.
However, on appeal, the Superior Court of Justice of Castilla y León (2009) overruled
partially the first instance decision. In the opinion of the Superior Court the elimination
of the crucifix from the classrooms only proceeds when there is a conflictive situation in
which the fundamental rights can be affected of both students and their parents. This
type of situation can only be evaluated when there is a request addressed to the school
authorities in order to remove the crucifix. If there is no such request, a conflict cannot
be inferred and therefore the crucifix can remain in the school facilities.
In a different context, the display of religious symbols in a public school
had already been declared constitutional by a judgment of the Superior Court of Justice
of Murcia of 2008. In that occasion, no student or student's parent was involved. The
claim came from a teacher of a public school that demanded the removal of a Christmas
crèche placed in the hall of the school, alleging safety reasons – difficulties for the
center’s evacuation in an emergency - as well as incompatibility with the state's
obligation of religious neutrality. The Court dismissed the appeal, noting that it could
find no imposition of religious beliefs or practices on any person.
Out of the school environment, the presence of the crucifix in a public
space, and more precisely in the city hall of Saragossa, originated another interesting
case widely spread by the media. A group of left-wing councilmen demanded that the
mayor ordered the removal of an old crucifix from the plenary hall, where the city
council meetings were usually held. The mayor - of the Socialist Party - refused to
remove the crucifix, making reference to its historical and artistic value as well as to the
significance of respect for traditions - that crucifix was linked to the life of the
Saragossa's city council since the seventeenth century. The issue was put to a vote and
the majority of the council decided in favour of keeping the crucifix. The case was taken
to a Court of First Instance, which confirmed in 2010 the legitimacy of the council´s
decision because the presence of the crucifix in the plenary hall did not affect the
secularism of the State or religious freedom as long as it was an old municipal use that
had more to do with history and culture than with religion.
An analogous position has been adopted by the Spanish Supreme Court
in two cases regarding the presence of huge and very visible Christian crosses in public
places, one on an old castle of Islamic origin in Murcia (Cristo de Monteagudo) and the
other on a mountain near Orihuela (Cruz de la Muela), where it has been placed since
the fifteenth century and rebuilt several times by popular initiative. In both cases the
Supreme Court confirmed the decisions of two regional Superior Courts of justice that
had refused to decree the removal of those Christian symbols. The Court's rationale,
with numerous references to the Lautsi judgment of the ECtHR's Grand Chamber, was
based on respect for religious tradition, deeply rooted in the culture of the country, as in
many others of Christian heritage.
For the Court, as far as religious symbols are expression of tradition and social
consensus, they constitute identity signs of a community, and their maintenance is just a
manifestation of respect for historical tradition. Therefore, the Court concluded that
their mere presence in public places cannot be understood either of a violation of state
duty of neutrality (laicidad) or an imposition of particular religious beliefs and
expression of intolerance of non-believers.
The foregoing judgments of Spanish courts are consistent with the case
law of the Constitutional Court, which has been very open to the maintenance of
religious traditions in public places or institutions, and at the same time very firm in
proclaiming that no person can be obliged to take an active part in those traditions.
Thus, the Court has found nothing unconstitutional in the fact that a military
garrison organized a solemn parade in honor of the local advocation of the Holy
Virgin, or in the fact that a unit of the National Police participated in a religion
procession during the celebration of the Catholic Holy Week - not to guarantee the
safety of the event but in its quality of a member of the relevant religious fraternity,
with police officers wearing their gala uniforms. However, the Court has made clear
that no officer can be obliged to be present in those religious ceremonies against his
personal convictions, for public events reflecting a religious tradition must be reconciled
with the individuals' freedom of conscience.
For analogous reasons, the Constitutional Court held that it would have
been legitimate for the University of Valencia - a public University -to keep an image of
the Holy Virgin that had been traditionally present in its coat of arms, if the University
governing bodies had so decided. And, more recently, the Court has sustained the
constitutionality of the statutes of the Bar Association of Seville, which have kept, as ‘a
secular tradition', the Immaculate Conception of the Holy Virgin as its honorary patron.
 The Court noted that, being the bar association itself aconfesional, preserving
this tradition does not infringe either the neutrality of public institutions or the religious
freedom of non-Christians. The Court added that symbols reflect the history of
institutions, and it is natural to find in the Spanish culture plenty of symbols, with
religious connotations, that represent public institutions.
Furthermore, the Court observed that in contemporary societies passive symbols have
virtually no influence on the people's beliefs and, therefore, the religious freedom of
individuals is safe, provided that no one is compelled to participate in rites or
ceremonies in honor of those symbols. In the absence of such coercion - the Court
concluded - the mere subjective perception of offence is not sufficient to appreciate that
freedom of ideology or religion has been violated.