Cooperation Between the State and Religious Organizations: Equality and Non-Discrimination on Religious Grounds in Spain

Abstract

The objective of this paper is to analyze the constitutional principles that govern the Spanish model of relations between the State and religious organizations, within the context of the model of cooperation between the State and religious organizations. The 1978 Constitution guarantees the right to religious freedom, establishes the principle of religious neutrality of public authorities, and indicates that public authorities shall cooperate with religious organizations and the Catholic Church. In line with this approach, this paper studies the advantages and disadvantages of the Spanish model of cooperation between the State and religious organizations, taking into account the fact that the State has currently signed cooperation agreements with both the Catholic Church and so-called religious minorities. This has generated a cooperation model that favors organizations with cooperation agreements over those without and discriminates between religious organizations with cooperation agreements based on the content of the respective agreements. All of this contradicts the constitutional principle of equality and non-discrimination on religious grounds, as well as the principle of religious neutrality of public authorities.

1. Initial Approach

Cooperation between the State and religious organizations has traditionally generated tensions in Spain, given that Spain has historically been a Catholic country characterized by a lack of religious freedom and the recognition of a basic degree of religious tolerance. The general rule throughout Spanish constitutional history has been that most constitutions have recognized the official status of the Catholic Church, as well as the obligation of public authorities to fund this religious organization.

The 1869 constitution was the first one to recognize the right to religious freedom and did so in a particular way, establishing the following in article 21: “The Nation is obliged to maintain the worship and the ministers of the Catholic religion. The public or private practice of any other religion is guaranteed to all foreigners residing in Spain, with no limitations other than the universal rules of morality and law. If any Spaniards profess a religion other than Catholicism, everything provided in the preceding paragraph shall apply to them”. Therefore, the 1869 constitution, which was in force for a very short time, recognized the right to religious freedom for Spaniards to the extent that this right was recognized for foreigners; in these cases, the possibility of religious practices other than Catholicism was recognized, insofar as they were carried out in private and were respectful of public morality (Amérigo Cuervo-Arango 2022).

From the perspective of the right to religious freedom, the 1931 Constitution was key in this context, as it expressly recognized this right, prohibited the funding of religious organizations, and established the religious neutrality of public authorities by stating that “the Spanish State has no official religion”. However, the 1931 Constitution was only in force for a brief period due to Franco’s military uprising.

It should also be noted that, in addition to the legal protection that Spanish constitutions have traditionally granted to Catholicism, the fact that the Catholic Church enjoyed privileges and monopolies in areas such as education and marriage gave it great social legitimacy. In other words, the absence of religious freedom, added to the fact that Spaniards, regardless of their personal beliefs, were compulsorily educated in Catholic principles, or that Catholic marriage was the only way to legally organize relationships between couples, among other examples, was decisive in the Catholic Church enjoying a religious and cultural monopoly in Spain (Asensio Sánchez 2001; Amérigo Cuervo-Arango 2022; López Guerra 2008).

The Spanish Constitution of 1978 represented a revolution in the field of fundamental rights and freedoms, and especially for the right to religious freedom. The 1978 Constitution broke with the Francoist political model and the deprivation of core fundamental rights, such as the freedoms of ideology, expression, press, and assembly, which were limited to the official ideology. In the religious sphere, the rights to religious freedom and equality before the law were guaranteed, with no discrimination based on, among other reasons, religion or opinion (Llamazares Fernández 2007).

According with this approach, the purpose of this paper is to analyze the constitutional principles governing the model of relations between the State and religious organizations, as well as the position of the Constitutional Court on the matter. Next, we will study the scope and content of the cooperation agreements that the State has signed with religious organizations to determine their internal coherence and compatibility with the current constitutional model. Finally, we will focus our study on the main advantages and disadvantages of the cooperation model between the State and religious organizations, using the funding model for religious organizations established in the cooperation agreements to determine whether they are consistent with the principle of religious neutrality of public authorities.

In other words, once it has been established that the central aim of this research is to analyze the model of cooperation between public authorities and religious organizations, it should be noted that the references made to the public funding model of religious organizations are not intended to provide an in-depth examination of such a complex issue. The purpose is merely to determine to what extent cooperation between public authorities and religious organizations—and particularly the use of cooperation agreements between the parties—has resulted in different models of public funding for religious organizations.

2. Internal Logic of the Legal System

2.1. Constitutional Principles in the Framework of Relations Between the State and Religious Organizations

The Spanish Constitution (SC) of 1978 recognized fundamental rights and freedoms. article 1.1 of the Constitution establishes the constitutional ideology in these terms: “Spain is constituted as a social and democratic State governed by the rule of law, which upholds liberty, justice, equality, and political pluralism as the supreme values of its legal system”. This mandate is complemented by the fact that, according to article 1.2, “National sovereignty resides in the Spanish people, from whom the powers of the State emanate”.

Regarding religious freedom, article 14 SC states that “Spaniards are equal before the law and may not in any way be discriminated against on account of birth, race, sex, religion, opinion, or any other personal or social condition or circumstance”. Article 16 SC establishes “1. Freedom of ideology, religion, and worship of individuals and communities is guaranteed, with no other restriction on their expression than may be necessary to maintain public order as protected by law. 2. No one may be compelled to make statements regarding their religion, beliefs, or ideologies. 3. There shall be no State religion. The public authorities shall take the religious beliefs of Spanish society into account and shall consequently maintain appropriate cooperation with the Catholic Church and the other religious organizations”.

The last reference to religion that appears in the constitutional text refers to the educational context. Article 27.3 SC states that “The public authorities guarantee the right of parents to ensure that their children receive religious and moral instruction that is in accordance with their own convictions”.

Article 16.3 of the Spanish Constitution establishes that Spain is ideologically and religiously neutral, in order to guaranty the ideological and religious equality and non-discrimination of its citizens. The principle of neutrality of public powers guarantees the pluralism present in Spanish society and is defined as a constitutional principle inherent to the nature of a democratic state, which limits the capacity of public powers. (Celador Angón 2020).

The Supreme Court has ruled on the neutrality of public powers in response to a judicial appeal filed in relation to the possibility of exercising conscientious objection in the educational field (Llamazares Fernández 2006; López-Sidro López 2008; Roca Fernández 2008). The Court distinguished between public ethics (“the values that constitute the moral foundation of the constitutional system and are enshrined in binding legal norms”) and private ethics (“different cultural, moral or ideological conceptions”), establishing that: “indoctrination cannot be claimed to exist when educational activity refers to the moral values that underlie the aforementioned norms, since presenting them in terms of promoting adherence to them will be constitutionally permissible. On the contrary, a stance of neutrality will be required on the part of the public authorities when dealing with values other than the above. These other values must be presented in a strictly objective manner, with the sole purpose of educating or informing about the pluralism that actually exists in society on certain controversial issues” (Supreme Court Judgment of 11 February 2009, Appeal 905/2008, FD 6).

According to the Constitutional Court, the religious neutrality of public authorities “prohibits any confusion between religious and state purposes” (STC 46/2001 of 15 February, FJ 4). The Constitutional Court has pointed out that public authorities must be neutral with regard to religion (STC 46/2001 of 15 February, FJ 7), since “the principle of religious freedom recognizes the right of citizens to act in this field with full immunity from coercion by the State and any social groups, so that the State prohibits itself from any involvement, alongside citizens, as subjects of acts or attitudes of a religious nature, and the principle of equality, which is a consequence of the principle of freedom in this matter, means that the religious attitudes of legal subjects cannot justify differences in legal treatment” (STC 24/1982, of 13 May, FJ 1).

Finally, public authorities cannot identify with specific beliefs, just as religious parameters cannot be used to decide what public policies should be appropriate. In other words, religious neutrality prevents confusion between the public and private spheres; that is, public authorities must be ideologically and religiously neutral and must promote a model of society in which individuals are free to exercise their right to religious freedom, as long as their exercise is respectful of public order and constitutional principles (Celador Angón 2018; Polo Sabau 2017; Torres Gutiérrez 2016).

2.2. Cooperation Between the State and Religious Organizations

Cooperation between the State and religious organizations can take various forms, which are sometimes justified by reference to the history and culture of each country. Such cooperation (or its absence) may be defended on the grounds that it serves to safeguard a nation’s traditions and cultural identity. However, it remains unclear to what extent such cooperation may lead public authorities to promote a private ethical system, implying that the State identifies with a particular private ethic and ceases to remain neutral.

As we have seen, article 16.3 SC establishes that “the public authorities shall take the religious beliefs of Spanish society into account and shall consequently maintain appropriate cooperation with the Catholic Church and the other religious organizations”. The specific reference to the Catholic Church in the constitution can only be understood in the context of Spain’s religious past and the need to articulate consensus proposals that would consolidate the democratic model. If the reference to the Catholic Church were removed from the constitutional text, the interpretation of the model of relations between the state and religious organizations would be the same, since the model is based on the recognition of the right to religious freedom on an equal footing, regardless of the specific beliefs that individuals may have. Likewise, the religious freedom of Catholics is fully guaranteed by the legal system and the Constitutional Court and ordinary courts. In other words, the reference to the Catholic Church in the Spanish constitution must be exclusively interpreted in accordance with the particular context in which the constitution was drafted (López Guerra 2008, p. 42; Polo Sabau 2017, p. 317).

Article 9 SC states the following: “(1) Citizens and public authorities are subject to the Constitution and all other legal provisions. (2) It is the responsibility of public authorities to promote conditions that guarantee that the freedom and equality of individuals and the groups to which they belong are real and effective, to eliminate obstacles that prevent or hinder their full enjoyment, and to facilitate the participation of all citizens in political, economic, cultural, and social life. (3) The Constitution guarantees the principle of legality, the hierarchy of legal provisions, the publicity of legal statutes, the non-retroactivity of punitive provisions that are not favorable or restrictive of individual rights, the certainty that the rule of law will prevail, the accountability of public authorities, and the prohibition of arbitrary action by public authorities”. Thus, it is clear that both individuals and public authorities are subject to the rule of law, as well as the role that public authorities must play in ensuring that individuals can exercise their fundamental rights and freedoms.

Regarding the relationship between articles 16.3 and 9.2, the Constitutional Court has pointed out that the cooperation between the state and religious organizations mandated by article 16.3 is already protected by article 9.2, which establishes that public authorities must remove obstacles that prevent the freedom and equality of individuals and the groups to which they belong from being real and effective (STC 46/2001, of 15 February, FJ 9).

Once it has been established that public authorities must cooperate in certain contexts with religious organizations, how can cooperation be organized in accordance with the principle of religious neutrality of public authorities? According to constitutional parameters set out above, cooperation can have three different meanings. First, cooperation can refer to the state cooperating with religious organizations so that they can achieve their religious goals; but this option would not be valid as it would violate the principle of religious neutrality of public authorities “(Fernández-Coronado González 2003, p. 137). A second interpretation could be that the state cooperates with religious organizations to achieve their charitable, educational, and healthcare goals. This second option would be valid to the extent that it is carried out equally with religious and non-religious entities, since otherwise it would discriminate between organizations based on their purposes, which would violate, among other principles, the equality and non-discrimination on religious grounds established in article 14 SC. And thirdly, there would be those cases in which the state cooperates with religious organizations to remove obstacles that prevent the exercise of the fundamental right to religious freedom, but only to the extent necessary to comply with the principle of ideological and religious neutrality of public authorities (Llamazares Fernández 2007, p. 365).

2.3. Constitutional Principles and Financing of Religious Organizations

If we apply the aforementioned constitutional principles, as well as the interpretation made of them by the Constitutional Court, the question arises as to what extent it is possible for public authorities to finance religious organizations. We are not referring to the non-religious purposes that religious organizations sometimes pursue, such as charitable activities, since in these cases religious organizations may receive public aid or subsidies to the same extent as non-religious organizations, in order to avoid discrimination based on the purposes of the organization carrying out charitable activities.

When public authorities finance the religious activities of religious organizations, they violate the principle of ideological and religious neutrality that should guide the activity of public authorities. In other words, in a democracy it is not the role of public authorities to promote private ethics; it should be the members of the religious organizations who freely finance their activities. In fact, it is possible to talk about a double violation of the principle of neutrality. On the one hand, discrimination is made between ideological and religious entities when religious entities are financed, discriminating on the basis of the purposes (religious or ideological) of the entity receiving the funding. On the other hand, when public authorities directly fund a religious group, or grant different tax treatments to religious organizations, discrimination is made between religious organizations by promoting a specific type of belief in a market that should be characterized by pluralism and the free competition of ideas and beliefs. Furthermore, it does not seem consistent with the principle of equality and non-discrimination that religious organizations should enjoy a different tax regime based on the fact that they have signed cooperation agreements with the state (Torres Gutiérrez 2019, p. 120).

In Torres’ words, “the solution to the problem of financing religious organizations must come from raising awareness among their followers, and not from state subsidies, as this makes them economically dependent on the state and is contrary to the principle of state neutrality, since no religious organization should have state status. (Torres Gutiérrez 2019, p. 69). Hence, Torres is in favor of the financing of religious organizations depending exclusively on the contributions of their followers (Torres Gutiérrez 2019, p. 120).

Although we will focus our study on this issue subsequently, the constitutional inconsistency of the state directly financing one religious group exclusively is not resolved by financing other religious groups, but rather by not financing or subsidizing any of them. In other words, the problem is not only discrimination between different religious groups, or between religious groups and ideological groups, but also that an ideologically and religiously neutral state cannot finance private beliefs.

This does not mean that religious organizations should pay taxes on the income they receive to finance their religious activities, since in that case they would be paying a tax for exercising a fundamental right. In fact, to the extent that the tax exemption on income received by religious organizations is the same as that enjoyed by entities that carry out activities of a similar nature (for example, charitable activities), the principle of ideological and religious neutrality of public authorities would be respected, and the exercise of the fundamental right of religious freedom on an equal footing would be promoted.

3. The Organic Act on Religious Freedom

The Organic Act 7/1980, of 5 July, on freedom of religion (OARF) is a partial development of article 16.1 of the Constitution, since it excludes non-religious beliefs or convictions from its scope of application, regardless of their relevance to individuals.

The starting point of the law is, on the one hand, the principle of religious neutrality of public authorities established in article 1.2, which says that: “there shall be no State religion”; and on the other hand, the principle of equality and non-discrimination, such that: “religious beliefs shall not be a reason for inequality or discrimination before the law. Religious reasons shall not be alleged to prevent any person from exercising any employment, activity, or public duties or tasks” (Article 1.3).

The OARF distinguishes between personal beliefs and the rights of religious organizations.

First, the OARF defines freedom of religion and worship as the right of any person to: “(a) Practice a freely chosen religious belief or not practice any religion, change denominations or leave the one practiced, freely express one’s own religious beliefs or the absence thereof, and refrain from declaring one’s beliefs. (b) Take part in religious ceremonies and to receive religious assistance in accordance with one’s own belief, to commemorate religious festivities, to commemorate marriage ceremonies, to be buried with dignity without discrimination due to religious reasons, and to not be forced to take part in religious ceremonies or receive religious assistance contrary to one’s own religious belief. (c) Receive and teach religious education and information of all kinds, either orally, in writing, or by any other means, to choose for oneself and for the non-emancipated and disabled children under one’s responsibility, in and out of school, the religious and moral education in accordance with one’s own religious beliefs. (d) Assemble and protest publicly for religious purposes and to congregate in order to engage in communal religious activities in accordance with the general legal system and the provisions provided in this Organic Act” (Article 2.1).

Next, the OARF establishes, with regard to religious organizations, that “the churches, denominations, and religious communities have the right to establish places of worship or meeting places for religious purposes, to designate and instruct their ministers, to spread and propagate their creed, and to establish relationships with their own organizations or with other national or international religious denominations” (Article 2.2).

Thirdly, from the perspective of cooperation between public authorities and religious organizations, article 2.3 OARF is the most relevant, since it establishes that “for the real and effective application of these rights, public authorities shall adopt the necessary measures to facilitate religious assistance in public, military, hospital, welfare, and prison facilities and other establishments under their responsibility, as well as to facilitate religious education in public educational institutions”. This is one of the main ingredients of cooperation between the state and religious organizations, as the cooperation become mandatory in those cases where individuals cannot exercise their right to religious freedom because their movements are restricted. However, in these cases, it is necessary to clarify that for cooperation to be mandatory, it is necessary that the individual can only exercise their right to religious freedom if the public authorities take positive action.

Another central element of the OARF is the possibility for the State to sign cooperation agreements with religious organizations. Specifically, article 7 of the OARF establishes that “1. The State, taking into account the religious beliefs existing in Spanish society, shall establish, where appropriate, cooperation agreements and conventions with churches, denominations, and religious communities registered in the Registry which, due to their scope and number of believers, have taken root in Spain. In any case, such agreements shall be adopted by means of a law approved by Parliament. 2. In the agreements and conventions, always respecting the principle of equality, churches, denominations, and communities may adopt the tax benefits provided for in the general legal system for non-profit entities and other charitable organizations”.

The wording of article 7 of the OARF is complex. first, there is no obligation on the part of the State to sign cooperation agreements; on the contrary, it is merely a possibility that the State may activate when it deems it appropriate, since the removal of obstacles that prevent the exercise of fundamental rights does not per se require the signing of cooperation agreements, as this can be performed unilaterally by the public authorities (Contreras Mazarío 2020, pp. 53–94; Torres Gutiérrez 2022, pp. 28–32; Suárez Pertierra 2011, p. 62). Second, it is clear that, in the interests of legal certainty and within the framework of a democratic society, agreements must be laws passed by Parliament. And finally, there is the possibility that religious organizations may enjoy the same tax regime as non-profit entities and charities.

The practical application of OARF have created a model in which religious organizations enjoy a different status depending on whether they have signed cooperation agreements or are recognized as such by the public authorities. Consequently, religious organizations can enjoy five different statuses. Firstly, the regime established for the Catholic Church by the 1979 agreements. Secondly, the legal status of religious organizations that signed cooperation agreements in 1992 within the framework of the OARF provisions. Thirdly, the religious organizations that have been recognized as “well-established” or having “notorious roots”; these religious groups can sign cooperation agreements with the State, marriages celebrated in accordance with their religious form can have civil validity, and they can form part of the Advisory Commission on Religious Freedom established by article 8 of OARF. (López-Sidro López 2015; Polo Sabau 2020; Rodríguez Blanco 2024; Torres Gutiérrez 2024; Torres Sospedra 2023). Fourthly, religious organizations registered in a specific registry of the Ministry of Justice (Pelayo Olmedo 2017; Pineda Marcos 2020). And fifthly, religious organizations that are not registered in the Ministry of Justice registry.

Therefore, while both the Constitution and the OARF propose a model based on equality and non-discrimination on religious grounds, the implementation of the OARF has generated a clearly discriminatory model.

4. Cooperation Agreements and Public Financing of the Catholic Church

Cooperation between the State and the Catholic Church has traditionally been carried out through concordats and cooperation agreements. These are documents in which the parties (State and Church) negotiate the terms of their relations in areas such as the Catholic Church’s participation in the education system, the economic and financial regime of the Catholic Church, the legal personality of canonical entities, or the religious assistance in the armed forces. Immediately after the 1978 Constitution was approved, the State signed four agreements with the Holy See: Legal Affairs (1979), Economic Affairs (1979), Education and Cultural Affairs (1979), and Religious Assistance in the Armed Forces and Military Service of Clergy (1979). These agreements are international treaties signed between Spain and the Holy See prior to the approval of the Organic Law on Religious Freedom.

The use of concordats and agreements to organize bilateral relations between the state and the Catholic Church, while it might make sense in the context of a confessional state, currently makes no sense since the right to religious freedom is guaranteed both by the legal system and by the courts. In fact, in historical perspective the main consequences of signing concordats or agreements have been, on the one hand, the establishment of a Catholic confessional model; on the other hand, the recognition of privileges that have allowed Catholicism to be socially and politically linked to political power and perpetuate Catholic confessionalism; and, finally, the recognition of privileges to the Catholic Church has traditionally been achieved by sacrificing the religious freedom of non-Catholics, for example, through the compulsory teaching of the Catholic religion in the education system. For the reasons explained above, the signing of such agreements has traditionally come into conflict with the principles of religious freedom, equality and non-discrimination that are characteristic of democratic societies.

The 1979 Agreement between the Spanish State and the Holy See on economic matters rests on three pillars. First, “the Catholic Church declares its intention to obtain sufficient resources to meet its needs. When this purpose has been achieved, both parties shall agree to replace the systems of financial collaboration expressed in the preceding paragraphs of this article with other fields and forms of economic collaboration between the Catholic Church and the State” (Article II. 5). Second, “after three full fiscal years have elapsed since the signing of this Agreement, the State may allocate to the Catholic Church a percentage of the yield from income tax or net wealth tax or other personal taxes, using the most technically appropriate procedure. To this end, each taxpayer must expressly state in their respective tax return their wishes regarding the destination of the affected portion. In the absence of such a declaration, the corresponding amount shall be allocated to another purpose. This system shall replace the endowment referred to in the following section, so as to provide the Catholic Church with resources of a similar amount. Until the new system is implemented, the State shall allocate in its General Budget an adequate endowment to the Catholic Church, on a global and unique basis, which shall be updated annually. During the replacement process, which will take place over a period of three years, the budget allocation will be reduced by an amount equal to the tax allocation received by the Catholic Church” (Article II. 2, 3, and 4). Thirdly, in addition to direct funding, the agreement establishes exemption from taxes on many activities, such as religious publications, teaching in diocesan and religious seminaries, and the purchase of objects for worship. The agreement also provides for a generous system of exemptions for the Holy See, the Episcopal Conference, dioceses, parishes and other territorial circumscriptions, religious orders and congregations, and institutes of consecrated life and their provinces and houses (Articles II and IV).

In the words of Torres, “Only the Catholic Church has access to the tax allocation, an item that in the 2024 Tax Income campaign (corresponding to the income of 2023, the last one with data), represented 382,437,998 euros. It is difficult to break an inertia that dates back to the Spanish Constitution of 1837, when the state undertook to finance it directly, in compensation for the disentailment of Mendizábal” (Torres Gutiérrez 2025, p. 7).

To resolve any doubts that may arise regarding the interpretation of the aforementioned provisions, the agreement establishes that “The Holy See and the Spanish Government shall proceed by mutual agreement in resolving any doubts or difficulties that may arise in the interpretation or application of any clause of this Agreement, drawing inspiration from the principles that inform it” (Article VI). This clause has the drawback that when new taxes have been approved, such as Value-Added Tax (VAT) or the Tax on Construction, Installations, and Works (TCIW), in the absence of agreement between the parties, the Catholic Church was initially exempt from paying them, and the Catholic Church has only agreed to pay the aforementioned taxes after lengthy negotiations, in exchange for other benefits or because the courts have so ruled.

For example, although VAT was introduced in Spain in 1985, the Catholic Church did not agree to pay it until 2006. The Catholic Church agreed to pay VAT in exchange for modifying the regime provided for in the 1979 Agreement between the Spanish State and the Holy See on economic matters, so that the temporary financing model became indefinite and the percentage of personal income tax that the Catholic Church receives through this channel was increased. The payment of VAT by the Catholic Church was agreed by the parties through the Exchange of Notes of 22 December 2006, between the Spanish State and the Holy See (Rojo Álvarez-Manzaneda 2024, pp. 559–62).

The Catholic Church’s payment of TCIW was not easy either. It was only possible due to a decision by the Court of Justice of the European Union (Judgment of 27 June 2017, of the Grand Chamber of the Court of Justice in Case C-74/16), which established that religious organizations should not enjoy tax exemptions in cases where they do not carry out activities of a religious nature, as these activities are unrelated to the exercise of fundamental rights (Herrera Ceballos 2018; Torres Gutiérrez 2017). A similar situation, although in this case referring exclusively to the national sphere, is that of the registration of real estate by the Catholic Church (Torres Gutiérrez 2022).

5. Agreements of Cooperation and Public Funding of Religious Minorities

5.1. General Approach

According with article 7.1 of the OARF, the religious entities belonging to the Federation of Evangelical Religious Entities of Spain, the Federation of Jewish Communities of Spain, and the Islamic Commission of Spain, respectively, signed Cooperation Agreements with the State in 1992. Unlike the Agreements with the Catholic Church, the 1992 Agreements were approved by ordinary law. These agreements are commonly known as agreements with minority religious organizations.

Regarding the interpretation of the 1992 Agreements, unlike the 1979 Agreements, which include a bilateral clause for their interpretation, the First Additional Provision of the Agreements establishes that the Government will inform the religious organizations that signed the agreements of legislative initiatives that affect the content of the agreements so that they can comment on them (Torres Gutiérrez 2016).

5.2. Public Funding of Religious Organizations in the 1992 Cooperation Agreements

Unlike the agreements with the Catholic Church, the 1992 agreements do not provide for direct state funding of religious organizations. Religious organizations must be self-financed, and to this end, they are allowed to “freely collect contributions from their members, organize public collections, and receive offerings and donations” (Article 11).

The income received by the organizations that signed the 1992 agreements is exempt from taxation in certain cases. Specifically, the following income is exempt from taxation: the free distribution of religious publications, instructions, and internal bulletins; religious teaching activities in the centers of religious organizations; and income expended for the training of religious leaders. Organizations that signed the 1992 agreements are also exempt from property tax and special contribution, and specifically are exempted: their places of worship and their outbuildings or buildings and premises attached to them, used for worship, religious assistance, and the residences of religious leaders; premises used as offices and for the training of religious leaders are also exempt. In the case of religious activities, exemption from corporate income tax and property transfer tax is also provided for. With regard to charitable, educational, medical, or social welfare activities that may be carried out by minority religious groups, it is envisaged that these will enjoy the same tax benefits as non-profit organizations or private charities (Article 11).

The tax regime for religious minorities is consistent with the constitutional model, as it enables members of minority religious organizations to finance their organizations, while the state refraining from levying taxes on assets or income used to exercise the right to religious freedom. In other words, when the State exempts religious organizations from paying taxes on income used to promote their purposes, it is promoting the exercise of a fundamental right and avoiding taxing private donations made to promote religious freedom.

However, this model has the problem that it expressly recognizes benefits exclusively for religious organizations that signed the 1992 agreements, so that these religious groups have a different and unjustified status compared to the Catholic Church and religious organizations without cooperation agreements.

Among the benefits available to religious organizations that signed the 1992 cooperation agreements is the fact that they are eligible for financial aid from the Pluralism and Coexistence Foundation (PCF). PCF is a state-owned public sector entity created in 2024 by the Ministry of Justice to support cultural, educational, and social integration activities and projects of religious organizations (with the exception of the Catholic Church) that have signed cooperation agreements with the State. The Catholic Church cannot benefit from aid from this public foundation (Ferreiro-Galguera 2010; Fernández García 2019).

Currently, PCF is attached to the Ministry of the Presidency, Justice, and Parliamentary Relations, and its objective is to “promote the recognition and accommodation of religious diversity as basic elements for fully guaranteeing freedom of religion and fostering an environment conducive to coexistence”. The foundation has four main objectives: (1) “To contribute to the implementation of programs and projects of non-Catholic religious organizations with cooperation agreements with the Spanish State or “well-established” in Spain related to the promotion of the full exercise of the right to religious freedom”; (2) “To improve knowledge about religious diversity in Spain, its impact, and associated needs”; (3) “To improve the public management of religious diversity”; and (4) “To contribute to the formation of an informed and tolerant public opinion regarding religious plurality.” (https://www.pluralismoyconvivencia.es/english_version/) (accessed on 9 September 2025).

In accordance with the statutes of the PCF, approved by Royal Decree 45/2021 of 26 January, its “assets are allocated to promoting the conditions necessary for the effective exercise of the right to religious freedom in Spain, under the terms established by the Constitution and the laws for this fundamental right” (Article 1). With regard to the beneficiaries of the PCF, “1. The Foundation is established for the benefit of non-Catholic religious denominations that have a cooperation agreement with the Spanish State or that have obtained the corresponding declaration of well-established roots, in accordance with the provisions of current legislation. 2. The Foundation shall carry out its activities with objectivity and independence, and in accordance with the principles of impartiality, non-discrimination, and proportionality” (Article 8).

PCF grants direct financial aid to minority religious organizations and, to a lesser extent, to religious organizations that have been recognized with the status of well-established roots. Article 7.1 of the foundation’s statutes are very clear on this matter, establishing among its founding purposes: “to contribute to the implementation of cultural, educational, and social programs and projects of non-Catholic religious organizations that have a cooperation agreement with the Spanish State or are recognized as having well-established roots in Spain”.

To this end, PCF develops lines of action that it publishes on its website annually (https://www.pluralismoyconvivencia.es/wp-content/uploads/2024/02/Plan-de-actuacion-2024.pdf) (accessed on 9 September 2025). These lines of action are as follows: granting aid to religious organizations with collaboration agreements; promoting research on religious freedom; developing programs to support the public management of religious diversity; and funding training and awareness programs on the religious phenomenon.

Strategic objective 1 of the 2024 plan exemplifies the role of PCF, as “this objective seeks to enable people belonging to different faiths to fully exercise their religious freedom by providing resources to federations of minority religious organizations with cooperation agreements with the State so that they can fulfill the functions related to the development of Cooperation Agreements and by supporting projects aimed at promoting awareness and accommodation of religious diversity within a framework of dialogue, promoting coexistence and combating intolerance and hate speech” (https://www.pluralismoyconvivencia.es/wp-content/uploads/2024/02/Plan-de-actuacion-2024.pdf) (accessed on 9 September 2025).

The foundation’s budget has varied annually, usually decreasing, depending on the general state budgets (Díaz Rubio 2013, p. 123). The first budget was €3 million. According with the wording of the budget law: “for the year 2005 and on a temporary basis until all religious organizations in Spain are fully self-financing, up to €3,000,000 is allocated to finance projects that contribute to better social and cultural integration of religious minorities in Spain, presented by non-Catholic organizations with a cooperation agreement with the state or having well-established roots in Spain” (Third additional provision of Law 2/2004, of 27 December).

As for the funding received from the PCF by religious organizations that signed cooperation agreements in 1992, “this funding has two differences with respect to that of the Catholic Church: it is quantitatively less, both in absolute and per capita terms, and it is also qualitatively different, since it is not freely available to the confessions that receive it, as it is conditioned on financing social and cultural integration projects. This funding has hardly reached the denominations without an agreement, which have only marginally benefited from it” (Torres Gutiérrez 2025, pp. 7–8).

From the perspective of the constitutional principle of religious neutrality of public authorities, it does not seem consistent for public authorities, in the words of the Law 2/2004, of 27 December, to create a foundation “on a temporary basis until all religious organizations in Spain are fully self-financing”. The financing of religious organizations is a private matter for which the state cannot be held responsible, but rather the followers of religious organizations. Likewise, there is clear discrimination between religious organizations that receive state aid and those that do not. The solution to this situation, in my opinion, is not to treat religious organizations equally in terms of public funding, but eliminate direct public funding and allow followers of religious organizations to take responsibility for funding their religious beliefs. Otherwise, the question arises: What legitimacy does a religious organization have if it is not funded by its followers but by public authorities?

6. European Court of Human Rights Case Law

6.1. European Convention on Human Rights

The European Convention on Human Rights guarantees the right to religious freedom in its article 9, with the following formula: “1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others”.

In the context of equality and non-discrimination, article 14 states that: “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colorcolour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”. The aforementioned prohibition of discrimination was expanded by article 1 of Protocol No. 12 to the Convention through a general prohibition of discrimination, stating that: “1. The enjoyment of any right established by law shall be secured without discrimination on any grounds such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth, or other status. 2. No one shall be discriminated against by any public authority on any grounds such as those mentioned in paragraph 1”.

According to these parameters, I will now briefly refer to some decisions of the European Court of Human Rights (ECHR) in order to understand its position regarding public funding of religious organizations.

6.2. European Court of Human Rights

The ECHR has ruled on the funding of religious organizations, recognizing a broad margin of appreciation for states, as there is no common standard in Europe on this matter. The following section will discuss three decisions of the European Court on this subject, two of which expressly concern Spain. It should be noted, however, that a comprehensive study of the Court’s case law regarding the financing of religious organizations would require a monographic analysis that lies beyond the scope of the present research.

In Darby v. Sweden the ECHR ruled on the possibility that States may require individuals to pay a tax specifically intended to fund a religious group (Application no. 11581/85, Judgment of 23 October 199). Mr. Darby was a Finnish national working in Sweden, and due to a change in Swedish tax legislation, he was required to pay Swedish municipal taxes, including the tax intended for the Lutheran Church of Sweden, which he was required to pay in part.

The ECHR ruled from the perspective of article 14 in conjunction with article 1 of Protocol No. 1 to the European Convention, considering that the violation of religious freedom was subsumed within the discrimination on religious grounds contained in article 14. According to the Court, “the Government Bill (1978/79:58) containing the tax-law amendments that brought about this complaint did not mention the special situation which the amendments would create for non-residents under the Dissenters Tax Act. In fact, the Government stated at the hearing before the Court that they did not argue that the distinction in treatment had a legitimate aim. In view of the above, the measure complained of cannot be seen as having had any legitimate aim under the Convention. Accordingly, there has been a violation of article 14 of the Convention taken together with article 1 of Protocol No. 1” (paragraphs 33–34). In other words, the Court found that in this case there was discrimination on religious grounds, since the Swedish tax system discriminated between residents and non-residents, so that the former could refuse to pay the church tax (by deregistering with the local parish), but not the latter, since the renunciation of registration in the church registers—which made payment mandatory—was not provided for non-residents for administrative reasons.

The case of Iglesia Bautista “El Salvador” and Jose Aquilino Salvador v. Spain (Application 17522/90, Decision of 11 January 1992) concerned the coherent of the State’s funding of a religious group from two approaches: first, when a religious organization is funded by the state, as is the case with the Catholic Church in Spain, religious organizations that do not receive public financial support are discriminated against; and second, due to the violation of the right to religious freedom of those who, with their taxes, fund a religious organization that is either not their own or that they do not wish to fund.

The Baptist Church requested tax exemption from urban property tax for its places of worship from the local authorities, arguing that the Catholic Church benefited from this exemption. Likewise, the plaintiffs denounced that their followers were forced to contribute financially to the payment of urban property tax, and with this income they indirectly financed the Catholic Church, since it is funded with public money.

The Commission dismissed the Baptist Church’s claim by estimating that: “the Commission recalls that this provision does not prohibit all differences in treatment in the exercise of the rights and freedoms recognized, equality of treatment being violated only where the difference in treatment has no objective and reasonable justification” (paragraph 2). Likewise, “It observes that the tax exemptions enjoyed by the Catholic Church in Spain are provided for by the agreements concluded on 3 January 1979 between Spain and the Holy See, which place reciprocal obligations on the two parties […] However, the applicant church has not concluded such a concordat with the Spanish State, and it does not appear from the file that it has sought to do so consequently, it does not have the same obligations to fulfill vis-à-vis the State” (paragraph 2).

Regarding the position of the applicants alleging that the sums they are required to pay in property tax indirectly contribute to the funding of the Catholic Church on account of the public funding received from the State, the Commission established that: “the obligation to pay taxes is a general one which has no specific conscientious implications in itself. Its neutrality that respect is also illustrated by the fact that no taxpayer can influence or determine the purpose for which his or her contributions are applied, once they are collected […] The Commission further notes that the applicants have by no means established or even alleged that property tax is a tax used for a particular purpose” (paragraph 3).

In the case of Alujer Fernández and Caballero García v. Spain (Application No. 53072/99, Decision of 14 June 2001), the ECHR ruled again on the consistency of the model used in Spain to finance the Catholic Church in light of the European Convention.

Under Spanish tax regulations, taxpayers can choose in their income tax application whether to allocate a portion of their tax to the economic support of the Catholic Church or to other socially beneficial purposes. The Evangelical Baptist Church of Valencia complained that its followers were discriminated against the Catholics. The court declared the application inadmissible, and established that “freedom of religion does not entail Churches or their members being given a different tax status than that of other taxpayers. However, the conclusion of agreements between the State and a particular Church establishing a special tax regime in favor of the latter does not, in principle, contravene the requirements of articles 9 and 14 of the Convention, provided that there is an objective and reasonable justification for the difference in treatment and that similar agreements may be entered into by other Churches wishing to do so […] The Court notes that the applicants do not contest, in itself, the compatibility with the Convention of the statutory election available to members of the Catholic Church to allocate a percentage of their income tax for the financing of their Church. Their complaint is that they are unable to act in a like manner in favor of their own Church without a prior agreement with the Spanish State. However, the obligation imposed on Churches to reach an agreement with the State in order to be eligible to receive part of the revenue from income tax does not appear to the Court to be unfounded or disproportionate. Furthermore, regard being had to the margin of appreciation left to Contracting States, particularly as regards the building the fragile relations that exist between the State and religions, it cannot be considered as amounting to discriminatory interference with the applicants’ right to freedom of religion. Indeed, such a margin of appreciation is all the more warranted in that there is no common European standard governing the financing of churches or religions, such questions being closely related to the history and traditions of each country. Furthermore, the Court notes that taxpayers are not obliged by Spanish tax law to pay any part of their taxes to the Catholic Church and are free to allot the percentage of their tax determined by the Law on the State Budget for purposes in the social or general interest. The Court also notes that, according to the Government, the Spanish legislation in force allows taxpayers to make private donations to the Church of their choice on fiscally advantageous terms”.

The ECHR’s position was therefore based on the freedom enjoyed by States to decide whether or not to fund religious organizations in accordance with their respective traditions, as this freedom is part of their margin of national appreciation. It is also important to note that in the Court’s decisions concerning Spain, the Court took into account the fact that the Catholic Church’s tax and public funding regime, although discriminatory because it applies only to the Church, had been negotiated by the State and incorporated into a cooperation agreement, which gives legitimacy to the funding model.

7. Final Remarks

The 1978 constitution allowed Spain to break with Franco’s military dictatorship through a democratic political model based on the guarantee of fundamental rights and freedoms. All of this took place within a legal framework that recognizes equality and non-discrimination on religious grounds, among other reasons, as well as the ideological and religious neutrality of public authorities. In this way, the 1978 constitution is based on the idea that all individuals have the right to equality in the exercise of fundamental rights and freedoms, and therefore in the exercise of the right to religious freedom.

A priori, according to the logic described above, it would have been very easy to organize a model of relations between the state and religious organizations. However, due to the role that the Catholic Church has played in our constitutional history, and especially the role it played during the military dictatorship, as soon as the constitution was approved, the state signed cooperation agreements with the Holy See granting the Spanish Catholic Church a privileged status, which is clearly discriminatory with respect to other religious organizations.

The OARF is clear and precise when it orders public authorities to remove obstacles that interfere with the exercise of the right to religious freedom. However, OARF offers absolute discretion to public authorities in the context of signing cooperation agreements with religious organizations. In other words, the use of cooperation agreements is not mandatory for public authorities, as they can cooperate with religious organizations unilaterally and without the need to agree on the terms of cooperation.

Likewise, one of the main problems with the Spanish cooperation model is the high level of discretion available to public authorities, both in deciding the scope and content of cooperation and the mechanisms for channeling it. The wording of article 7 of the OARF grants public authorities almost unlimited flexibility regarding both the use of cooperation agreements and their content. On the one hand, the article establishes that the State, “taking into account the religious beliefs existing in Spanish society, shall, where appropriate, establish cooperation agreements or conventions”; on the other hand, these agreements “may” extend to religious organizations the tax benefits provided for non-profit entities and other charitable organizations. In this way, the State may, depending on each specific case and without a clear mandate, enter into agreements with religious organizations, without clarity as to their precise content, except for the possibility that such agreements may allow for the same tax treatment for religious organizations as for non-profit and other charitable entities.

The legal framework described above has meant that, despite the theoretical equality and non-discrimination established by the constitutional framework, in practice we are faced with a model that discriminates between different religious organizations, depending on whether they are registered in the Ministry of Justice’s register of religious entities, whether the State has recognized them as religious groups that have taken root in Spain, whether the State has signed cooperation agreements with them, or, finally, depending on the terms of the cooperation agreements.

For this reason, there is currently a clearly discriminatory model that distinguishes between the following statuses: first, religious organizations that are not registered in the Ministry of Justice’s public registry; second, religious organizations registered in the registry; third, those religious organizations registered in the registry that have obtained a declaration of well-established (this status has been recognized to the Church of Jesus Christ of Latter-day Saints in 2003, Jehovah’s Witnesses in 2006, Buddhists in 2007, the Orthodox Church in 2010, and the Bahá’í Community of Spain in 2023); fourth, those religious organizations that signed cooperation agreements with the State once the OARF was approved, as with the Federation of Evangelical Religious Entities of Spain, the Federation of Israeli Communities of Spain, and the Islamic Commission of Spain; and fifth, the agreements signed with the Holy See in 1976 and 1979, before the approval of the OARF, which replaced the Francoist Concordat of 1953: the Agreement on the Renunciation of the Presentation of Bishops and the Privilege of Jurisdiction (1976), and the Agreements on Legal Matters (1979), Economic Matters (1979), Education and Cultural Affairs (1979), and Religious Assistance in the Armed Forces and Military Service of Clergy and Religious (1979).

Therefore, the discretion of public authorities to recognize “well-established” religious organizations, as well as to sign cooperation agreements with religious organizations, is one of the main gaps in the Spanish legal system, insofar as it involves the recognition of different legal statuses for religious organizations. All of this constitutes a clear violation of the principle of equality and non-discrimination between theoretically equal holders of the same right to religious freedom.

Direct funding by public authorities and the disparity in the tax regimes enjoyed by religious organizations illustrate how, depending on the existence of cooperation agreements or their specific provisions, religious organizations are funded differently (or not at all) by public authorities or enjoy different tax benefits. In this way, discrimination occurs among those who are theoretically entitled to the same right to religious freedom and, moreover, the religious neutrality of public authorities and the proper separation that should exist between the State and organizations with ideological or religious purposes are put at risk.