State Relations with Religion: Common Law or Special Law?

Abstract

Currently, the debate over whether the State’s relationship with religion should be regulated by common law or special law is being reconsidered in somewhat different terms. On the one hand, regardless of the State–religion relationship models divided into virtually watertight categories. On the other hand, this shift is driven by two key elements that blur the boundaries of the debate. Firstly, by the recent jurisprudence of the European Court of Human Rights (ECtHR), which gives greater relevance to the principle of cooperation. This cooperation must be understood in light of the State’s duty of neutrality and the effective application of the principle of equality and non-discrimination of religious groups. Secondly, by the importance the European Union attaches to establishing an open, transparent, and regular dialogue with religious and philosophical organizations. In any case, the fact that cooperation is gaining relevance as a principle that must guide the actions of public authorities at the national level necessitates an analysis of the most adequate strategies to understand how these relations are implemented and evaluate the concrete consequences on the guarantee and effective exercise of religious and ideological freedom.

1. Introduction

In recent decades, the false dilemma about whether State relations with religion should be regulated through Common Law or Special Law has been a shared focus of attention for European ecclesiastical doctrine, especially Spanish and Italian doctrine1.

Traditionally, the issue raised has been resolved in close connection with the State–Church relationship models, and simultaneously, by invoking the separatism–cooperation binomial, where separatism has typically been associated with subjecting the religious factor to common law, and cooperation with the bilaterality of normative sources through agreements celebrated with the Catholic Church, and by extension, with other religious communities (Martínez-Torrón 1994, pp. 37–40).

Currently, the debate is being reconsidered in slightly different terms. On the one hand, regardless of the State–religion relationship models divided into virtually watertight categories (Ferrari 2000; Palomino Lozano 2023, pp. 770–71; Rodríguez Blanco 2024, p. 36). On the other hand, considering two elements that blur the contours of the discussion about whether the unilateralism or the bilaterality of normative sources is preferable in the state regulation of the religious factor in contemporary plural societies. I refer, firstly, to the most recent interpretation of the Strasbourg Court regarding the function served by the principle of cooperation in light of the duty of state neutrality and the application of equality and the prohibition of discriminating against religious groups. Secondly, it is also interesting to review the state-of-the-matter concerning the importance of the European Union grants to establishing an open, transparent, and regular dialogue with religious and philosophical organizations.

The analysis of these aspects reveals that cooperation relations with religious communities are detected in cooperationist States that maintain bilateral norms, and also in separatist States or in Church–State systems by means of unilateral sources. The result is that the focus of attention is placed on cooperation as an instrumental principle—along with neutrality and impartiality, the autonomy of religious groups, and the prohibition of discrimination—that informs the action of public authorities in the protection of a fundamental right.

In any case, attributing greater prominence to cooperation as a principle that must inspire the action of public authorities at the national level requires investigating appropriate strategies to know how these relations are instrumentalized, and above all, what the real consequences of cooperation are on the effectiveness of the exercise of religious and ideological freedom. That is, it implies reviewing again whether the traditional legal instruments upon which this cooperation is developed—whether they result from the agreement of both parties or proceed from unilateral state norms—continue to fulfill their function in regulating the pluralism of European societies, or if, on the contrary, they should be replaced by other proposals revolving around dialogue, more or less institutionalized, as the backdrop against which collaboration between the State and religious and non-religious groups in Europe is projected (Meseguer Velasco 2024, p. 218).

Therefore, this work analyzes the incidence of each of the mentioned aspects on the way State relations with religion are addressed in the first quarter of the 21st century. Next, it highlights the relevance of cooperation as an instrumental principle for the action of public authorities to guarantee religious freedom in conditions of equality. This guarantee, in the context of contemporary plural societies, necessarily requires overcoming the false dilemma about whether cooperation relations must be subjected to Common Law or a specific law as mutually exclusive categories, when in reality the important thing is that the different legal instruments provide effectiveness to the exercise of a fundamental right.

2. State–Church Relationship Models

It is worth beginning by recalling that academic doctrine has, on numerous occasions, highlighted the limited practical relevance of the traditional classification of relationship models between the State and religion today. As is known, with their particularities, they are grouped into three main categories: confessional systems, systems of strict secularism, and countries that establish a commitment to separation from religion but engage in cooperation relations with religious denominations. It has been stressed that while these relationship models are generally compatible with the terms of the European Convention, with the primary law of the European Union, and with the commitments acquired through international human rights instruments, the division in itself does not provide specific legal solutions when conflicts arise where the protection of religious freedom and belief is at stake.

The reasons alleged by the doctrine, with its own nuances, stem from the idea that the classifications focus interest on the formal aspect of the Church–State relationship, and, however, do not pay sufficient attention to its content, to the true object of protection (Ferrari 2000). Specifically, it has been noted that such relationship models respond to a primarily pedagogical objective that allows for classifying the different positions of the State regarding the religious social factor (Palomino Lozano 2023, p. 770), or they explain points of balance achieved in legal systems as a result of consensus (Durham 2006, p. 53). However, from a practical perspective, they are of little use for understanding what happens in the field of relations between the State and religion in the context of current secularized European societies (Ferrari 2000). For this reason, the need to demystify the “relationship models” (Navarro-Valls 2008, pp. 1–3) has long been advocated, in order not to fall into rigorous formal classifications that ultimately do not resolve the functional issues that arise in the area of relations between public authorities and religious groups, nor in the exercise of the fundamental rights we are concerned with (Martínez-Torrón 1994, p. 14).

Furthermore, there are few European legal systems that currently participate in a “pure” form in any of these models. On the contrary, most are hybrid and complex models that share distinctive features of other systems and have evolved based on the minor or drastic adjustments required by the social or political pressures (Fox 2015) of plural and globalized societies. In this sense, the essential aspects that traditionally characterized each category have blurred and cannot be applied as rigorously as they originated in their respective countries.

To cite an example, the notion of French laïcité has evolved from its original conception. In the current French model, characteristics that properly correspond to cooperation systems are detected: tax exemptions for donations, budgetary allocations for the conservation of cultural heritage, religious assistance in public spheres, and cooperative dialogue are a good example of this, and we could even add attempts at a certain degree of State control over religion. In the same vein, in singular separation systems such as Belgium: religious education in public schools is funded, salaries are paid to ministers of worship, and tax exemptions are established for religious and ideological groups. In confessional States, cooperation relations are established with other denominations regarding religious education or the protection of public places of worship, mainly with the Catholic Church.

These observations are equally applicable to cooperationist systems. I mean that it is also common to identify countries with legally binding agreements and conventions as those that guarantee religious freedom more effectively compared to those opting for State–Church systems or strict separation systems. Undoubtedly, this is true; especially regarding the existence of guarantees and legal certainty that bilateral relations imply for both parties. However, in these systems, some gaps in equality are also perceived that raise doubts about whether, in reality, we are dealing with systems that establish privileges in favor of majority Churches and in which there is no true cooperation with minority churches. In those same models, moreover, a confusion between cooperation and bilaterality is frequent, so the potential of cooperation is reduced to a few religious groups (Navarro-Valls 2008, p. 7). This approach is visible in the Spanish legal system, but also throughout Europe, especially when, beyond the State–Church relationship system, the obligation to guarantee religious freedom is extended to non-Christian religions, and especially to Islam (Lafont 2014, p. 48).

What I mean by this is that the choice of one system or another is important and is undoubtedly conditioned by the historical, constitutional, sociological, and identity reasons of the States: it is a political decision that depends solely on them, and in which religious denominations have little scope for action to choose the system and the legal instruments that express that specific relationship model. However, the important thing is that all of them, even if in different proportions, revolve around common elements: the duty to respect state neutrality, reciprocal autonomy, and mutual cooperation between both institutions with a well-defined objective in the pan-European and national spheres: the effective protection of religious freedom and belief (Rodríguez Blanco 2024, pp. 30–32). They are the instrumental principles that hover over the different systems because what is truly important is the protection of the religious freedom of individuals and groups in conditions of equality, and this protection can only be carried out with the collaboration, to a greater or lesser extent, of the State (Meseguer Velasco 2024, p. 97)2.

In other words, the State–Church relationship system configured in a legal system, especially some specific systems, may be an indication that a State takes religious matters seriously, but without this implying that said model or the legal instruments chosen to develop it automatically constitute a guarantee of the effective exercise of the fundamental rights at stake.

3. The Prohibition of Discrimination Against Religious Groups in the Case Law of the Strasbourg Court

On the other hand, let us recall that the European Court, in its initial pronouncements, held that freedom of religion and belief, in the terms enshrined in Article 9 of the European Convention, did not necessarily imply the development of state cooperation with all religious denominations3. In its view, a State may have legitimate reasons for making objective and justified distinctions between different religious denominations4; in principle, this issue falls within the margin of appreciation. Consequently, the celebration of an agreement between the State and a religious community that establishes a special regime in favor of the latter does not contravene the requirements of Articles 9 and 14 of the Convention5, provided that there is an objective and reasonable justification for the difference in treatment and that other religious communities wishing to do so can enter into similar agreements6. From this perspective, the European Court based its decisions on the constitutionality of the different State–Church relationship models admitted in European countries (Evans and Thomas 2006, pp. 709–13; Chaibi 2022, p. 797) and on the possibility of choosing different forms of cooperation with religious groups (Martínez-Torrón 2004, pp. 209–38).

However, in its most recent case law, it applies the principle of equality and the prohibition of discrimination against religious groups more rigorously in matters where it reviews certain issues conditioned by the different legal statuses recognized for religious groups within the same national legal order7. The solutions it offers do not stop at solely evaluating the interference with the exercise of collective religious freedom8, but address them, on the one hand, from the perspective of the implicit mandate of neutrality and impartiality demanded of public authorities in religious and ideological matters (Fokkas 2015, pp. 58–64; Henrard 2015, pp. 398–420; Martínez-Torrón 2019, pp. 159–76; Ringelheim 2017, pp. 1–24; Valero Estarellas 2022, pp. 68–83), and the corresponding respect for the autonomy of churches in doctrinal and organizational matters9. On the other hand, it assesses whether the State’s refusal to reach a cooperation agreement in areas of public interest with certain churches that do not meet the historical or numerical requirements demanded by national legislation could imply discrimination that is not justified by an objective and reasonable cause.

In this direction, the European Court maintains that the Convention does not generate any duty of state cooperation with religious denominations. However, it clarifies that if the State grants rights to some religious denominations, it cannot do so arbitrarily; it must enable access to all religious groups, otherwise the prohibition of discrimination provided for in the Convention is violated. In this way, the European Court assumes powers to review the requirements established by the national legislator for religious groups to acquire the legal status that gives them access to cooperation, especially when this attitude of the States could imply a lack of protection of religious freedom and beliefs for some minority religious groups, or an unjustified unequal treatment—and thus discriminatory—based on the recognition of a legal status that was granted to them at a certain moment and that, in essence, does not coincide with the framework of religious and ideological pluralism of contemporary European societies10.

The problem, however, is that while it is reasonable for the European Court to apply the principle of equality to cooperation, it does not clearly determine when interference with the exercise of religious freedom occurs. Therefore, this very general indication from the Court seems to lead to a vicious circle: the margin of appreciation of the national authorities to determine the criteria for cooperation is reinforced. Or, on the contrary, the “corrective” margin of appreciation of the European Court itself is affirmed, allowing it to exercise that control when cooperation is denied without an objective and reasonable justification.

Ultimately, the European Court is not so much concerned with evaluating the institutional relations of the States, which justifies in the national margin of appreciation, nor the legal instruments used to establish these relations, but merely focuses on supervising whether the underlying values on which the Convention revolves have been observed in the development of their actions. These European values are the cornerstones of the Court’s decisions and of the principles that must structure the State’s relations with religion (Chaibi 2022, p. 15). Specifically, it places pluralism and tolerance as essential values of European democratic societies, and on this basis, it assesses whether a State has exceeded the limits derived from its legitimate margin of action in the protection of individual religious freedom and in the recognition of certain religious groups11.

That said, at times, when it descends from the theoretical to the practical realm and places pluralism as the central object of state protection, it uses a variable extension of the state duty of neutrality, disconnecting its protection from the true object of protection of the Convention: the right to freedom of religion and belief, in its double individual and collective aspect12. In this way, in some cases, it permits the presence of religious symbols in public schools (Lautsi and others v. Italy [GC], of 18 March 2011), while in others, on the contrary, especially in matters related to the use of the Islamic veil in countries with models of strict separation (S.A.S. v. France [GC], of 1 July 2014), the Court favors a specific conception of secularism with which it again considerably restricts the protection of the fundamental rights at stake, and consequently, the protection of pluralism (Arlettaz 2016, p. 193; Calo 2010–2011, p. 101).

4. The Dialogue as an Instrument of Cooperation in the Field of the European Union

The European Union also recognizes freedom of religion and belief and prohibits discrimination on religious grounds (Arts. 10 and 21 of the Charter of Fundamental Rights of the European Union (CFREU)13. In addition, it establishes the legal framework for the relationship between the State and churches and non-confessional organizations (Art. 17 of the Treaty on the Functioning of the European Union (TFEU)14. The commitment undertaken is directed not only to respecting the legal status of churches and non-confessional organizations recognized in national legislation, but also to maintaining an open, transparent, and regular dialogue with these denominations, churches, and organizations, similar to the dialogue that the EU engages in with other representative organizations and civil society (Arts. 4.2 and 11.2 of the Treaty on European Union (TEU).

In this way, the European Union adopts a position of neutrality towards the different models of relationship established under national legislation, which, similarly to the Council of Europe, justifies the historical, cultural, and religious diversity of each State (Art. 22 CFREU) with the sole limit that a hostile stance towards the religious fact is not adopted. At the same time, and this is what is important to highlight, it positively perceives the contribution of religion to the democratic values that inspire the European Union. Therefore, in its way of acting and relating to religious groups, it incorporates an attitude of cooperation that is reflected in the open, transparent, and regular dialogue with said organizations.

In any case, the relevance that the European Union attributes to dialogue as a key element of cooperation with religious and philosophical organizations, without referring at the same time to other unilateral or bilateral legal instruments to maintain these cooperative relations, has not gone unnoticed. This has led to the question of whether the inclusion of dialogue in the primary law of the European Union is a new legal instrument, a tertium genus that would allow replacing the bilateral focus of sources with a more general one based on the dialogue between civil and religious authorities (Ventura 2021, pp. 355–60). Naturally, one can also ask whether this paradigm shift in cooperative relations based on institutional dialogue between public authorities and groups, without the need for them to materialize in formal instruments, could be the solution to the deficiencies detected in the bilaterality of normative sources.

The main obstacle to answering this question is that the reference framework of the dialogue is not determined, nor are the minimum parameters on which it should develop. Only its versatility is highlighted for adopting different modes of institutional cooperation, more or less regular and informal, with the representation offices of religious denominations and also of philosophical and non-confessional organizations15. However, it is a different matter as to whether this dialogue in abstracto, between parties that do not always occupy a position of equality, is configured as a way to overcome bilateral normative instruments, especially because when dialogue is truly effective—when religious denominations are recognized as valid interlocutors—it normally crystallizes into an agreement sanctioned by the law of the State (Martínez-Torrón 2023).

What I mean is that dialogue is inherent to bilateral normative sources, and in many cases, is also perceived in the unilateral regulations of the legislator. Institutional dialogue with religious denominations and philosophical organizations is prescribed as a permanent task, as a positive obligation (Duffar 2006, p. 275); it cannot be conceived as an extraordinary practice in a participatory democracy. On the contrary, it is normal for the State—or where applicable, the different institutions of the European Union—to seek common ground and dialogue with their citizens and civil society organizations, at least to increase the possibilities of the acceptance of a law, and this attitude is naturally transferable to Church–State relations without losing sight of the State’s position of neutrality (Hollerbach 2006, pp. 285 ff.). In other words, dialogue is a prerogative of institutional relations between the State and denominations. In some cases, it will materialize in concordats, agreements, or administrative contracts—the so-called “administrative bilaterality”—(Alicino 2021, pp. 165 ff.); in others, the result will be reflected in unilateral legislation. In both cases, it will serve to bring positions closer that favor the accommodation of the religious and philosophical beliefs of citizens and groups. That is, dialogue fulfils similar objectives, but from the perspective of religious denominations—and also non-religious organizations—the dialogue that materializes in agreements grants them a plus of legitimacy and legal certainty. In fact, this is one of the main reasons for the demands of some European humanist groups that seek to equalize their legal status with religious groups through the signing of formal agreements that incorporate institutionalized dialogue (Meseguer Velasco 2024, p. 209).

In sum, the interpretive evolution of the aforementioned elements and the pluralism of European societies reveal the need for a more detailed analysis of the function that cooperation plays as an instrumental principle of the action of public authorities in religious matters and of the objective criteria for its application.

5. Cooperation as an Instrumental Principle for the Action of Public Authorities with Religious Groups

Naturally, approaching this principle requires descending to the level of national legislations to confirm that in this sphere, it is common to omit a definition of what cooperation means, notwithstanding that a few constitutional texts—Spain, Portugal, and some Eastern European countries—refer to cooperation when listing the informing principles for the action of public authorities in relation to the social factor of the religious fact. European doctrine16, nuanced by the aforementioned jurisprudence of the Strasbourg Court, clarifies criteria that favor the understanding of the contours of cooperation at the national level, some of which are pointed out below.

In the first place, cooperation, similarly to the duty of state neutrality and respect for the autonomy of religious denominations, is a principle that inspires the action of European States on the national level in relation to religion. Consequently, cooperation—the cooperative principle, as the Spanish Constitutional Court calls it in its first pronouncements17 is an instrumental principle directed at the State and religious denominations, as autonomous and independent entities, developing actions aimed at providing effectiveness to religious freedom through the exercise of the activities proper to them and the fulfillment of other annexed purposes (educational, welfare, etc.). In other words, cooperation, like neutrality, is not a concrete ideological orientation, but a principle that determines the action of the State and not its identity in relation to the religious fact (Martínez-Torrón 1999, p. 161). It is configured as a parameter that must guide the action of public authorities, as a means to achieve a specific end: to guarantee the exercise of a fundamental right, analogously to the position that guides the State to promote the safeguarding of other fundamental rights, precisely so as not to empty them of content (Martínez-Torrón 1999, pp. 178–83). Or, as mentioned in some constitutional texts in a more indeterminate way, cooperative relations are directed at favoring the common good, the promotion of human rights, the development of each person, and the values of peace, freedom, solidarity, and tolerance18.

Secondly, cooperation must be interpreted in close connection with the rest of the instrumental principles of the legal system. Specifically, the duty of neutrality prevents the State from assessing the dogmatic aspects of religion, and based on this assessment, establishing cooperation with religious groups. In parallel, the prohibition of discrimination modifies its application and constitutes a specific limit to determine its scope, broadening or narrowing the State’s margin of appreciation. These interconnections between the principles descend to the practical sphere of their application, and to this end, the Strasbourg jurisprudence incorporates into its traditional argumentation the need to include specific limits that regulate the scope of the margin of appreciation when the national legislator opts for incorporating cooperative relations into the internal legal system (Meseguer Velasco 2024, p. 68).

This means that cooperation must be projected equally with respect to the protection of religious freedom and beliefs inasmuch as it constitutes a fundamental right, but it is worth noting that neither at the supra-European nor at the national level is it required that cooperative relations be manifested to the same extent with respect to all religions, nor that they be established through analogous legal instruments. On the contrary, as has been pointed out, “throughout Europe, this cooperation is selective” (Ferrari 2012, p. 204). The vast majority of European States that cooperate with religion outline historical criteria, social roots, or presence in the current religious landscape to establish different modalities of cooperation within the same State. This, moreover, is common if attention is paid to the variety of cooperative relations between the State and non-religious organizations (political parties, trade unions, non-profit associations, non-religious organizations, etc.), in which it is also observed that state cooperation with each of these groups operates based on their social representativeness and their contribution to the common good.

Therefore, only when the inequality derived from cooperation with certain religious groups or equivalent entities is not justified by an objective and reasonable cause will it become discrimination. In these cases, discrimination hinges on a political decision of the State, which unilaterally decides to establish cooperative relations with some collective subjects of religious freedom, leaving others aside, without a cause that justifies the difference in legal treatment. This is when conflicts truly arise in relation to equality and the prohibition of discrimination against minority religions. From this perspective, the sincere will of the legislator to make the necessary adjustments regarding the inequalities generated within the respective current constitutional frameworks is also part of political discretion.

Thirdly, if a survey is made of the cooperative relations established in European countries with the different religious groups, it can be affirmed that in European practice, cooperation is the general rule, not an exception. This implies that cooperation is commonly detected as a principle of action of public authorities to provide effectiveness to the exercise of religious freedom, beyond the specific system of State–Church relations. Consequently, analogously to the approach of the duty of state neutrality, state cooperation is observed in the vast majority of relationship systems in European countries with religious groups—and I would say also outside of Europe—with the sole exception of those that adopt a hostile stance towards the manifestations of the religious fact.

This affirmation is easily supported if the focus of attention is placed not so much on the concrete cooperative model and its inclusion in a specific category, but rather on the manifestations upon which cooperative relations are projected. For example, in cooperationist systems like Hungary, Spain, and Italy, religious assistance is facilitated in public centers. However, similarly, France, Ireland, the United Kingdom, and Greece, with separationist or State Church systems, cover the salaries of ministers of worship who perform religious assistance duties in the Armed Forces, in penitentiaries, or hospital centers. In Belgium, France, and the United Kingdom, public funds are allocated for the conservation of ecclesiastical property declared to be of cultural interest. In France, the State also covers the costs of the repair or restoration of some churches that are state property although they are used for religious worship. These are just a few examples that highlight that cooperation is not exclusive to some models that expressly establish or foresee bilateral relations between the State and religion, but is also projected in those countries that seek consensus and dialogue on common interests with different interlocutors.

In addition, state cooperation with the social religious factor reaches two other issues that should not be overlooked. On the one hand, it requires that it be materialized through appropriate legal instruments that give effect to the exercise of religious freedom. The next section will be dedicated to this.

On the other hand, it is worth noting that beyond the legal instruments chosen to establish these collaborative relations, cooperation itself implies “subjecting religious denominations to specific and favorable treatment. That is, cooperation implies, by definition, an exception to generally applicable norms” (Martínez-Torrón 2004, p. 3). An exception that allows channeling the identity peculiarities of religious groups to address their religious needs, for example, in matters of dietary prescriptions, celebration of religious holidays, religious sacrifice of animals, ritual circumcision, etc. Addressing these specificities will usually require including some exemptions, exceptions, or accommodation in the common Law to accommodate the identity peculiarities of religious groups in order to address their specific needs, which are not necessarily shared by everyone equally. This, in essence, is what cooperation consists of (Meseguer Velasco 2024, p. 71).

Therefore, remitting the regulation of the institutionalized religious fact to common Law implies dispensing with its factors of specificity. Specifically, “when the convenience of subjecting these relations to the common law of associations is defended, it is forgotten that it is a specific law for associations”, and even some of them (non-profit entities, trade union organizations, or political parties) are subject to even more specific legislation different from that established for associations, “without being considered thereby as objects of privileged and discriminatory legal treatment for other associative phenomena” (Martínez-Torrón 2023, pp. 90–91). Analogously, the reference to a special law for religious denominations means the choice of a different criterion of specificity, focused on their nature and religious purposes. It only means the specific, ad hoc, regulation of the actions resulting from the exercise of religious freedom and beliefs (Martínez-Torrón 2023, pp. 90–91). In other cases, the regulation of the specificities derived from the religious nature of the communities will take the form of prerogatives, benefits, or privileges, but without these actions constituting an anomaly with respect to what the legal system does with other collective subjects. In this way, tax benefits are granted to religious communities analogously to those provided for non-profit entities in the state system. Amounts are allocated in state budgets for the conservation of cultural heritage of ecclesiastical ownership in parallel to the allocations for the conservation of other goods that are of cultural interest to the State. The opposite would only imply a recognition of the religious freedom of religious denominations, but would not guarantee its exercise, which is ultimately the goal (Meseguer Velasco 2024, pp. 134–35).

6. Towards the Compatibility of Legal Instruments in State Relations with Institutionalized Religious Fact

As indicated at the beginning of this study, attributing a greater role to cooperation as a principle that inspires the action of public authorities at the national level implies reviewing again whether the traditional legal instruments upon which this cooperation is developed continue to fulfill their function in regulating the pluralism of current European societies.

A survey of the European concordat landscape shows that the general trend in Europe is the bilaterality of relations between the State and religious denominations by means of concordats, agreements, conventions with public administrations, or institutional dialogue between national and European authorities and representatives of religious groups. To this end, it suffices to recall the favor concordati that was established in Eastern European countries where the Catholic Church sought legal guarantees in circumstances of political uncertainty (Schanda 2006, p. 256), or the globalization of the concordat as an adequate instrument for establishing cooperative relations with the Holy See, not only in Europe but across different continents (Mückl 2023, pp. 247–49). The more recent agreements concluded with minority religious denominations in traditionally non-cooperationist countries—such as Belgium and the Netherlands—which, analogously, have adopted the conventional route to respond to the needs of religious and humanist groups (Cimbalo 2023, pp. 211–32), also serve as an example.

However, despite the fact that bilaterality is the general rule and does not in itself represent a problem, it should be emphasized that in the current European landscape, concordat relations with the Holy See are conceived under somewhat different parameters. They have undergone an evolution that implies that concordats whose objective was to attribute benefits or privileges to the Catholic Church have transitioned towards agreements that aim to provide legal certainty and grant additional protection to the institutional relations between the State and the Catholic Church, also guaranteeing the autonomy and independence of both contracting parties. From this point of view, one of the main advantages of agreements or concordats is that they are anchored in international law. The characteristic of internationality is what shields them from unilateral denunciation by the State, while allowing for the necessary modifications to be made after prior consensus between the parties (Mückl 2023, p. 249).

This assertion is corroborated in the agreements signed by Eastern European countries that aim to grant the legal certainty they lacked during the time they were immersed in the previous communist regime. This is the main reason why, once their respective democratic systems were established, bilateral regulations have been perceived as the most adequate means to guarantee the rights of the Church in conditions of political uncertainty; uncertainty that other European countries also had prior experience with, and which, equally, inclined them to prefer the option of bilaterality in their institutional relations.

On the other hand, to the extent that pluralism has manifested itself in the European panorama, the path first initiated by Germany, and later by Italy and Spain, has been followed, extending the positive effects of bilateral relations with the Catholic Church to other religious denominations. As is known, there are agreements between the State and one or several religious denominations that, without having the legal nature of international treaties, are similar in terms of their objective: to establish the bilaterality of relations to guarantee the effectiveness of the exercise of religious freedom and beliefs. The similarity, as Italian and Spanish doctrine has highlighted, is also observed in their contents, marked by a substantial uniformity of the clauses of each agreement (Margiotta Broglio 2008, p. 21; Viladrich Bataller and Ferrer Ortiz 1996, 115 et seq.)—the so-called “intese photocopies” (Alicino 2021, p. 289)—notwithstanding that a proper scope is maintained to incorporate the peculiarities of each denomination in matters of religious holiday celebrations, dietary prescriptions, cultural heritage, etc.

The above does not mean that bilaterality does not present problems in its execution; it does present them, and in different directions. In this regard, one of the shortcomings often alleged is that the content of concordats and agreements frequently reiterates the institutional guarantees of religious freedom as a fundamental right and delimits the scope of action of the parties in common matters, but at the same time omits the development of cooperation in matters that are not typical of the concordat. I am referring to issues related to the right to life and other connected matters that require the consensus of both parties. In a similar vein, the scope of cooperation is questioned in agreements with minority denominations when it is affirmed that they are actually mere adherence by their representatives to the unilateral and standardized proposal of the State that does not guarantee the effective development of religious freedom. Furthermore, it is alleged that the difference in the legal nature of one and the other is projected onto the degree of the State’s commitment to guarantee their content.

In addition, the inclusion of dialogue in Art. 17 of the TFEU makes it an appropriate tool for establishing relations between the State and religion, and it is even perceived as an instrument for solving some of the issues pointed out. Regarding this, it can be said that, undoubtedly, dialogue has an undeniable value in all areas of European societies; but at the same time, from an empirical point of view, when dialogue does not materialize through the conventional route, it is difficult to quantify what cooperation translates into, and it is likely to deepen some of the problems that are precisely intended to be avoided by bilaterality. Specifically, dialogue broadens the political discretion of the State to establish it with the groups —religious or otherwise—that it deems convenient at any given time, without criteria that allow determining when groups are in a position to become subjects of state cooperation or clarifying the channels through which such cooperative relations should flow. Furthermore, it places the parties involved in unequal conditions, generates legal uncertainty for the groups, and, in any case, does not resolve the tensions that arise in the application of the principle of equality and the prohibition of discrimination between the different religious denominations and non-denominational organizations.

In other words, dialogue is not an alternative but a premise, a sine qua non condition of concordats, agreements, and also unilateral legislation. Dialogue is implicit in cooperation, and agreements reflect cooperation. The relationship between bilaterality and dialogue is not resolved in exclusive terms; they are complementary instruments used by public authorities—at the national, regional, and local levels—to give effect to the exercise of a fundamental right. Thus, agreed dialogue can materialize in the form of concordats and agreements, in state legislation issued exclusively unilaterally, and finally, it will be projected onto different modes of dialogue, more or less informal, between civil and religious authorities, both at the national and transnational level (Ventura 2021, p. 355). The goal is to achieve a balance in which, without abandoning the legal guarantees offered by the formal conventional route, informal dialogue between public authorities and religious denominations on matters of common interest is reinforced at the same time in terms of independence, autonomy, and reciprocal respect. Furthermore, in the interest of the principle of equality, it is necessary for all religions and non-denominational organizations coexisting in civil society to participate in this dialogue process.

Ultimately, in the current European context, the contrast between unilateralism and bilaterality, between common law and specific law, is increasingly perceived from a perspective less exclusive. On the contrary, all of them are legal instruments aimed at achieving mutual understanding between the State and the groups to guarantee the real protection of religious freedom and beliefs, without it being strictly necessary that the mode or form that cooperation takes is projected, to the same extent, onto all denominations and non-religious organizations.

From this perspective, the compatibility of bilateral norms as a channel for cooperation with denominations through a special law is defended. However, without overlooking that when these channels are not operative, or are insufficient, there are other instruments in the Law of the States that can also favor the promotion of religious freedom and equality. “All” normative sources—whether they are provisions of general or special laws, produced exclusively unilaterally or through extensive negotiation or, on the contrary, provisions of laws constitutionally protected for having been produced in compliance with the principle of necessary bilaterality—deserve to be safeguarded since they do not pursue opposing ends, but are aimed at favoring the same democratic objective of guaranteeing the effective satisfaction of the majority of demands for religious freedom promoted by individuals and groups (Domianello 2023, pp. 68–69).

In this sense, nothing prevents general provisions from being drawn up alongside concordats and agreements to satisfy “the common demands of religious freedom raised in a positive way, to the extent that they allow the inclusion of all justifiable claims, within legal categories indifferent to religious categories”. Specifically, “unilateral sources alongside bilateral ones, and not in substitution of the latter” (Domianello 2023, p. 61). The aim is to offer real solutions to the conflicts posed by the protection of a fundamental right in environments that share an enormous diversity of beliefs, and at the same time, a high degree of secularization. As pointed out, “apply the common Law solution in the cases that require it and the agreed bilaterality in the reasonable cases that demand it” (Navarro-Valls 1993, pp. 50–51).

7. Conclusions. Common Law or Special Law: A False Dilemma

From the perspective of the compatibility of legal instruments to regulate the State’s relations with the institutionalized religious fact, the immediate consequence is that the initial question formulated in this study turned out to be a false dilemma in the context of contemporary plural societies. The evolution of legal systems and the interpretation of European principles have blurred this rigid distinction. The discussion has shifted from the choice of exclusive categories (Common Law or Special Law) to the effectiveness of the protection of a fundamental right. Their purpose is not opposite; rather, they are directed at the same democratic objective: to guarantee the effective satisfaction of the demands of religious freedom.

In this sense, the focus of interest has shifted from the formal aspect (unilateralism or bilaterality) to the result. The general rule is that European States cooperate with religion. The State’s willingness to collaborate with all social organizations is an inherent feature of the modern European State. This feature hinges on the pursuit of consensus with both citizens and civil society. The State recognizes the positive projection of religion—also of other comparable values founded on non-religious ideologies or worldviews—on citizens and the moral dimension of civil society, and this recognition is manifested in different forms of collaboration with the institutionalized religious fact.

The key is that the State uses all available legal instruments to guarantee the real protection of religious freedom. In practice, this implies applying the solution of agreed bilaterality in the cases that require it and the Common Law, whether general or specific laws, in the cases that demand it, using dialogue to guarantee the exercise of religious freedom.

However, this does not mean that cooperative relations are manifested to the same extent with respect to all religions and beliefs. On the contrary, cooperation with religious and non-religious groups across Europe is, as previously mentioned, selective. This is applied in a gradual and relatively manner, depending on various well-known factors: the numerical importance of religion, the time it has been established in the country, and, above all, the type of activities it develops.

The authorities’ decision to collaborate will be based, to a great extent, on there being a certain affinity between the values promoted by the religion and those that the State has identified as essential for society. Thus, a distinction is drawn between the values considered to reinforce social cohesion and those which, conversely, could undermine it.

The foregoing implies that the materialization of cooperation will depend on the legitimate discretion of the States; it is largely a political decision, which also values historical, political, and sociological factors. However, the latest pronouncements of the Strasbourg Court and the indications of the European Union show that discretion is not absolute. Thus, if the State must cooperate with the institutionalized religious facts insofar as it involves giving effect to the exercise of a fundamental right, the State’s margin of appreciation will necessarily be restricted when the choice of the various forms of cooperation results in adverse consequences for the protection of religious freedom and beliefs of religious groups and comparable entities.

In conclusion, cooperation loses part of its meaning when it is reduced to the bilaterality of normative sources, but to the same extent, it is blurred when it is based on unilateral norms that do not consider the specificity of religious purposes or on informal dialogue characterized by the unequal position of the parties. Cooperation, understood as an instrumental principle of the action of public authorities, informs the State’s action to guarantee this fundamental right. It places the focus of attention on the positive consequences that cooperative relations project on the protection of religious freedom and beliefs of individuals and religious groups in conditions of equality. From this approach, cooperation, like neutrality, projects its shadow over the different models of State–Church relations. In essence, the point is, as the Spanish Constitutional Court has indicated, to “give effect to the exercise of the right to religious freedom”19 and, at the same time, correct the inequalities derived from a determined historical context that, in some European legal systems, are pending adjustments in the current constitutional frameworks.