High courts reign supreme : the role of case law in the spanish transition towards a secular (non-denominational) state

Abstract

Since 1975, Spain has undergone a period of unprecedented political changes. Inspired by a democratic model in which individual rights and freedoms are effectively protected, a legal transformation has taken place in every field of Spanish Law since Democracy. It is fascinating to verify how radical the changes in religious matters have been: Spain has evolved from a Catholic non-secular State to a secular, non-denominational State in which religious freedom is a basic principle.The analysis of case-law is an essential part of the study of this period, for it allows us to see how legislation changes and judicial breakthroughs do not always go together. Thus during the first years of democratic transition the yearning for change was so great that the Supreme Court, drawing up highly permissive legal doctrines, took the lead in the recognition of rights, only to later adapt its decisions to fit in with the new legislation. Having focused on the Spanish experience, this paper will end with comparative considerations on the role of the judiciary in periods of radical political transformations and the complex relation between legislatures and high judicial bodies. It will also highlight the part played by the secular elite of high court judges in advancing and consolidating the systematic change made possible by the critical junctures identified in the recent history of Spanish religion-State relations.