The (human) right to religious freedom: reflections from ... · The (human) right to religious...

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The (human) right to religious freedom: reflections from the city1

Dr. Michele Grigolo, Centre for Social Studies, University of Coimbra, Portugal

Paper presented at the panel “Religious organizations in the local political sphere”, XXVII SISP

congress, University of Florence, 12-14 September 2013.

DRAFT: Please do not quote without the author’s permission

Abstract

The legal and political environment within which religious freedom is currently mobilised and

institutionalised in Europe has become increasingly complex, especially with respect to Islam. Local

governments have crucial powers and competences in relation to religious freedom. However, they often

exercise them in ways that are sensible to the politics that surrounds religious freedom, especially its

public dimension. This paper explores both the law and politics of religious freedom through the lens of

the city. In particular, it investigates the case and work of the Barcelona’s Office for Religious Affairs,

positioning it in the larger Spanish process of institutionalisation of religious freedom. The Office is part

of the human rights policy of the city and supports religious freedom. It tries to achieve this goal by

mapping the religious communities of the city and assisting them on a number of issues, including

worship. As part of its services, the OAR often mediates between the communities and the local

administration as well as the autochthon population. The paper focuses on how the OAR constructs

religious freedom, how it intervenes in support of religious freedom as well as the results of these

interventions. The paper finds that the Office has had some success when mediating around issues of

religious freedom. At the same time, it exposes some limits of this action as the Office confronts the

constraints imposed by supra-local arrangements related to religious freedom as well local expressions of

opposition to religion and discriminatory attitudes.

Introduction

This paper explores the enforcement of the right to religious freedom at the city level. For that

purpose, it assumes the saliency of religion as a question of identity, especially for new migrant

communities, as well as the complexity of the legal and political environments within which religious

freedom is currently mobilised and institutionalised in Europe. Issues of religious freedom have an

important urban and spatial dimension and local governments routinely deal with them. Local

governments have crucial powers and competences in the field of religious freedom; however, they

often exercise these competences in ways that are sensible to the politics that surrounds religious

freedom, especially its public dimension. The case I present here is Barcelona’s Office for Religious

1 This research has received the financial support of the Portuguese Federation for Science and Technology (FCT).

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Affairs (OAR). The Office is a service part of the human rights policy of the city, whose mandate is to

support religious freedom in the city. As part of its mandate, the OAR maps the religious communities

of the city and offers to assist them on a number of issues, including worship. As part of its services,

the OAR often mediates between the communities and the local administration as well as the

autochthon population. The paper relies on an interpretive approach and qualitative analysis to

investigate how the Office constructs religious freedom, how it supports it and what results it achieves.

This analysis is inscribed within a framework that acknowledges, on the one hand, the impact of the

definition, construction and implementation of the right to religious freedom in human rights and

Spanish and Catalan legislation. On the other, it acknowledges and considers the impact of politics on

the shape and work of the OAR, from state institutions and arrangements related to religious freedom

to questions and priorities related to the local political environment, e. g. land use and security.

Assuming the impact of the legal and political structures within which the OAR is located and operates,

the paper explores the emergence of the OAR as an institution and then considers its interventions in

support of religious freedom. It focuses, in particular, on how the OAR mediates between the

communities and the administration around issues of religious freedom.

The paper proceeds as follows. The first two sections introduce the theoretical framework and debates

that guide the empirical analysis of the last two sections. First, I will introduce debates on the legal

construction and political organisation of religious freedom in Europe. Second, I will consider these

issues in Spanish context. Third, I will discuss the institutional development and current profile of the

OAR, including its own construction of religious freedom and the types of interventions through which

it aims to support this right. Fourth, I will analyse the results of the interventions the OAR as it

confronts typical urban issues of religious freedom related to the public and collective dimensions of

worship. Fifth, I will draw my conclusion and use the case of the OAR to reflect on larger debates about

the law and politics of religious freedom in Europe and Spain. Drawing on the practice of the OAR, the

conclusion also contains some moderately normative suggestions related to how religious freedom

could be reconceived, organised and implemented. My analysis relies on both primary sources (in-

depth informational interviews I did in Barcelona between 2004 and 2010) and secondary sources

(documents produced by the OAR and media reports).

The law and politics of religious freedom

Over the last twenty years, religious pluralism and diversity, brought about by globalisation and

migration, have increased. The diversification of religion has made the legal and political environment

within which religious freedom is mobilised and institutionalised increasingly complex. New religions,

including hybrids of traditional religions (Parker 2006) have added to the Christian majorities of the

(Protestant) North and (Catholic) South of Europe. Many new communities, including Christian

communities, are fragmented and informal and challenge the hierarchies and organisations of

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established Churches. As a consequence of their increase and internal differentiation, religious

communities often compete between and within themselves for visibility and leadership. A problem of

representation therefore emerges whenever governments look for a counterpart in order to discuss

and institutionalise religious issues (Bouma 2008).

Moreover, the institutionalisation of religious freedom confronts and questions the notion of neutral

secularism associated to the modern liberal state and the assumption that state and religion are

separate. Historically, neutral secularism has implied the confinement of religion to the individual and

private sphere. This notion of secularism largely informs the definition and construction of the right to

religious freedom as an individual right to be enjoyed in private spaces out of state interference. To

different extents and in different ways, all religious communities contest the individual and private

nature of (the right to) religious freedom. They assert the collective dimension of the right to religious

freedom and ask for their public recognition, including participation in decision-making and

redistributive processes. Their claims demand that states proactively support religious freedom and

meet certain needs of the communities (Casanova 1994).

Among all religions, Islam has been the “hard case”. Parekh speaks of ‘European anxiety’ (2006: 179)

vis-à-vis Islam. Marranci explores the ‘circle of panic’ (2008: 123) that characterises the perception of

Muslims in the UK. In the space of relatively few years, Islam has been turned into the ultimate “other”

against which European civilisation is defined and must be defended. There are many reasons that

explain this phenomenon. First, there are the numbers. Islam has become ‘Western Europe’s second

religion after Christianity’ (Hunter 2002: xiii). Second, from the viewpoint of the government Muslims

are difficult to organise, control and represent: each community is autonomous in terms of

organisation and theological orientation. Third, Islam is perceived to be particularly at odd with

secularism and the liberal and democratic foundations of the Western state. Islam’s problematic

relation to Western definitions and constructions of human rights, e. g. women’s rights and freedom of

expression, has been also emphasised and discussed (An-Na‘im 2008; Parekh 2006: 184-185; Keane

2006; Freeman 2004). Fourth, there is the association between Islam and terrorism. The question has

become salient following the 9/11 attacks and the diffusion of Islamic movements. The security

agenda has generated a wave of security legislation which, in many cases, has restricted the enjoyment

of civil rights and, in particular, religious freedom (Ferrari 2004). Last but not least, there is the

question of racism, as Islam is the religion of highly racialised and discriminated communities of

people of colour, from Africa and Asia.

Many tensions surrounding religious freedom are reflected in how this right is constructed and treated

in international and European human rights.

First, there is the tension between the individual construction v. the collective entitlement of the right.

Here, religious freedom touches upon the larger debate about collective rights. Most human rights

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recognise minorities but do not endorse the notion of the collective entitlement of minority rights,

including religious freedom.2 Donnelly (2003: 204 - 224) opposes the idea that group rights may be

human rights. Kymlicka (1995) formulates group-related rights outside human rights. Some have

theorised collective rights in the perspective of integrating them into human rights, confronting well

known questions related to the definition of a minority and who should be entitled to exercise the

right on behalf of the minority (Jovanović 2005, Freeman 1995). Jovanović suggests that a

‘representative body for the minority collective’ should be entitled to exercise the right, provided that

the members of this body are ‘democratically elected by the persons belonging to the minority

collective, so that the interests of that collective could be represented as authentically as possible’

(Jovanović, 2005: 645). Others, on the other hand, dismiss the notion of collective rights tout court.

Galenkamp, for example, argues that individual human rights can meet all the claims of minorities,

provided that human rights are taken seriously and contextually interpreted: according to this author,

‘the fact that common rights to freedom of religion and freedom of education turn out to be most

fundamental to minority groups, because they provide the opportunity to deviate from the ‘standard

Christian way of life’, does not make these rights special rights. The right to freedom of religion or the

freedom of education remain general and universal rights, because everybody is equally entitled to

them regardless of group membership’ (Galenkamp 1998: 514). Positive action and reasonable

accommodation have also been introduced in the field of minority rights and religious freedom. To the

extent that they shift attention away from collective rights towards substantial equality, these

measures are more compatible with the individual construction of human rights. Compared to the

United States and Canada, however, European countries more limitedly and selectively provide for

positive action and reasonable accommodation. There is a sense that European, including EU, human

rights and equality law might become more receptive of substantial equality in the future (De Witte

2010; Howard 2008). As part of this transition, there is room for the recognition of reasonable

accommodation in the field of religious freedom (Bribosia, Ringelheim and Rorive 2010).

Second, there is the private/public divide embedded in the human right to religious freedom. Both

Article 18 of the Universal Declaration of Human Rights and Article 10 of the Charter of Fundamental

Rights of the European Union (EU) are relevant exceptions to this rule.3 Otherwise, the distinction is

2 According to Article 27 of the ICCPR Article 27 of the UN Covenant on Civil and Political Rights addresses the special status of

‘ethnic, religious or linguistic minorities’ but maintains the individual construction of the right to religious freedom as ‘persons

belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own

culture, to profess and practise their own religion, or to use their own language’. The Framework Convention for the Protection of

National Minorities provides that ‘The protection of national minorities and of the rights and freedoms of persons belonging to

those minorities forms an integral part of the international protection of human rights’ (Article 1). The Convention, however , fails

to define “minority” in clear terms. 3 Article 18 of the Universal Declaration of Human Rights states that ‘the right to freedom of thought, conscience and religion’

includes ‘freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching,

practice, worship and observance’ (United Nations 1948). Article 10 of the EU Charter provides that ‘Everyone has the right to

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explicit and is usually functional to the imposition of limitations on the external dimension of the

right.4 Defining where the line between the private and public dimensions of religious freedom lies is

indeed a complex endeavour, one that touches upon collateral human rights issues in the field of

political participation, education, health and housing (Modood and Kastoryano, 2006: 167). If

necessary, religious freedom provides yet another example of the interdependence and indivisibility of

human rights (and the opportunity to approach them in an integrated and hermeneutic perspective:

see Koch 2006). The freedom of the (members of) religious communities to exercise their religious

freedom within their private spheres and associations is by now uncontested. What is also clear is that

the external dimension is a ‘substantial component of the right to religious freedom and as such it

necessarily implies expressions in the public space’5 (Ruiz Vieytez 2010: 40). In its General Comment

n.22, the Human Rights Committee provides a definition of worship that considers different

manifestations of religion and extends worship to

‘ritual and ceremonial acts giving direct expression to belief, as well as various practices integral

to such acts, including the building of places of worship, the use of ritual formulae and objects,

the display of symbols, and the observance of holidays and days of rest. The observance and

practice of religion or belief may include not only ceremonial acts but also such customs as the

observance of dietary regulations, the wearing of distinctive clothing or headcoverings,

participation in rituals associated with certain stages of life, and the use of a particular language

customarily spoken by a group. In addition, the practice and teaching of religion or belief

includes acts integral to the conduct by religious groups of their basic affairs, such as the

freedom to choose their religious leaders, priests and teachers, the freedom to establish

seminaries or religious schools and the freedom to prepare and distribute religious texts or

publications’ (UN Human Rights Committee 1993).

What remains contested is, however, the acceptability of certain manifestations of worship. In the

case-law of the European Court and (up to 1998) Commission of Human Rights religious freedom is

often interpreted according to a neutral conception of secularism that precludes public manifestations

of religion. This approach changes, however, depending on the religion at stake and the majority or

minority that practices it in a given country. The doubt has also been raised whether the Court

freedom of thought, conscience and religion. This right includes freedom to change religion or belief and freedom, either alone or

in community with others and in public or in private, to manifest religion or belief, in worship, teaching, practice and observance.’ 4 Article 18 of the International Covenant on Civil and Political Rights (ICCPR) does introduce restrictions related to the protection of

public safety, order, health and the rights and freedoms of others. Article 9.2 of the European Convention of Human Rights (ECHR)

also provides that the ´Freedom to manifest one’s religion or beliefs’ may be limited in accordance to the extent that this is

‘necessary in a democratic society’ on the same grounds provided for in the ICCPR. The Council of Europe’s Framework Convention

for the Protection of National Minorities provides for the right to religious freedom and the right to manifest one’s religion in two

separate provisions (Article 7 and 8, respectively) but without imposing any stated limitation on the manifestation of religion. 5 In the original: ‘componente sustancial del derecho a la libertad religiosa y como tal implica necesariamente expresiones en el

espacio publico’.

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protects more the religious sensibility of European Christian majorities (in Otto-Preminger and

Murphy) than Muslims’ (in Refah Party and Sahin) (Janis, Kay and Bradley, 2008: 368). In Sahin the

European Court of Human Rights upheld the ban on the Islamic headscarf imposed by Istanbul

University. The Court accepted that the ban was justified, as suggested by Turkish courts, on the

ground of equality between men and women and a notion of secularism ‘in harmony with the rule of

law and respect for human rights’ (Sahin v. Turkey, at 114). According to Marínez-Torrón (2012), the

neutral secularism that informs these decisions may be leaving the place to a more inclusive

conception. He considers that Lautsi v. Italy, where the Grand Chamber reversed the Court’s previous

2009 decision to ban the crucifix in Italian schools, may pave the way to the acceptance by the Court of

the admissibility of public religious signs. I am less convinced that this is a real turn and a positive one,

especially considering that, unlike Sahin, Lautsi is a case of a publicly-imposed religious sign and that,

in this context, “inclusion” favours (again) the Christian majority.6

At the state level, the situation has been very fluid and eventually more receptive of new issues of

religious freedom. European states have responded to the challenges posed by the collective and

public dimensions of religious freedom in manners that reflect and combine different national

histories, citizenship models and political contingencies. When tracing the state and future

perspectives of Islam in Europe, Modood and Kastoryano (2006) find that, within processes of

accommodation of Islam, the ideology of neutral secularism is replaced by an evolutionary secularism

focused on pragmatic solutions. Overall, Modood and Kastoryano argue, these arrangements show that

‘secularism pure and simple is not what exists in the world. The country-by-country situation is more

complex and, indeed, less inhospitable to the accommodation of Muslims than the ideology of

secularism […] might suggest’ (2006: 173).

Within this variety, Modood and Kastoryano present and defend two distinct patterns of

accommodation of religion based on the UK and French models, respectively. The UK model, on the

one hand, is presented as more receptive of different national and local religious organisations, which

are then associated to and supported by the state. For Modood, if Islam is not hierarchical and

decentralised it should be allowed to remain so. The French model, on the other, is heavily centred on

bilateral relations and agreements between state and one official interlocutor for each community. For

Kastoryano, this arrangement ensures that all religions are assimilated on an equal footing into the

state, producing religions with a distinctive national character, e. g. a “French Islam”, disconnected by

foreign influence (Modood and Kastoryano, 2006: 172-173).

Local governments play an important part within processes of accommodation of religion and,

eventually, the implementation of agreements between the state and the communities. Cities are, first

6 The same distinction between private and state sponsored manifestations of religion as well as its implications are critically

reprised and commented further by Nethwani (2007).

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and foremost, the space where religious communities live and claim the right to religious freedom. In

general, ‘ethno-cultural and ethno-religious differences are experienced on a daily basis in urban

settings’ (Fourot 2010: 135). Within the inter-governmental distribution of competences and

functions, local authorities manage services and exercise competences related to the implementation

of the right to religious freedom. From urban planning and land use to licensing and regulating places

of worship as well as access to public space in general, municipalities are routinely confronted with

issues of religious freedom.

At the same time, local governments express their own political will and discourse on matters of

religious freedom, which in turn influence the way in which competences are exercised. The local

government approach to these issues ‘have varied from antagonistic to supportive’ (Alexander 2004:

59). An antagonistic approach can be explained by different factors. There may be political opposition

or cultural resistance on the part of the local government. For example, empirical research has

highlighted how a minority of representatives of local governments in Australia maintains negative

attitudes towards issues of multiculturalism and religious diversity (Mansouri and Pietsch 2011).

Outside the local government, there is the autochthons’ reaction to local phenomena of migration and

religious differentiation: beyond a certain threshold, a negative perception and reaction often

generates ‘increased pressure on the municipality (for more services or policing) or support for anti-

immigrant elections slates’ (Alexander 2004: 59).

The opening and construction of places of worship, especially mosques, is probably the most

controversial local issue of religious freedom. It involves struggles over both the symbolic and physical

appropriation of space in the city. Here, politics clearly impacts on the law. In Canadian municipalities,

‘the construction of new places of worship is not automatically allowed and must follow an often

complex and highly political process of special permits’ (Germain 2004: 143). Fourot (2010)

underlines the different role of both institutional procedures and political contacts with respect to the

opening of a mosque in Montreal and Laval. Comparing two cases of Hassidic synagogues in Montreal,

Gagnon et al. (2004) link the question of places of worship to the social and political conditions on the

ground. They find that ‘the establishment of places of worship is, first and foremost, a matter of

neighbourhood dynamics and cannot be limited to the logic of municipal government and elected

officials. The social makeup of a neighbourhood and the character of the local political arena (in terms

of debate) are important determinants in accommodating special demands based on ethnoreligious

identities’ (2004: 1).

Religious freedom in Spain: a practical approach

Spain is a country where religious diversity is heavily connected to recent migration. Both are

relatively new phenomena. The territorial concentration of migrants around the richest areas of the

country determines the territorial concentration of religious communities, especially the new ones.

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Public authorities do not collect official data on religion. However, According to Muslim associations

more than one million Muslims reside in Spain (out of a Spanish population of around 46 million).

According to local municipal registers, as of 2007, nationals of countries of Muslim faith were

approximately 730,000, of which around 580,000 were Morrocans (Álvarez-Miranda, 2009: 185-186).

Diversity is to be found increasingly also within the field of Christian religions. It is estimated that

more than one million Evangelical believers live in Spain. Orthodox believers are estimated to be over

500,000 while Jehovah’s Witnesses are more than 100,000 (Contreras Mazarío 2010: 277).

The overall Spanish approach to migration and, as part of that, religious diversity has been defined as

inspired by a ‘practical philosophy’ (‘filosofía práctica’): ‘It is not based on a preconceived idea but on

the questions and answers that the practice of the governance of immigration itself generates’7

(Zapata-Barrero 2009: 310). It is a learning-by-doing approach which is also ‘pragmatic’ in the sense

defined by Modood and Kastoryano: not oriented by one ideology but focused on the case-by-case

management and solution of issues of religious freedom. This approach is not only promoted by the

state government: Spain is a highly decentralised, quasi-federal system where, in the field of migration,

the function of control is retained by the state while its territorial authorities, the autonomous

communities and, especially, the municipalities manage integration (Zapata-Barrero 2009: 313).

This definition captures well the process whereby Spain reacted and adjusted to religious diversity,

putting in place a system for its management and, as part of that, the regulation of religious freedom.

Spain’s recognition and regulation of religious freedom is influenced by a constitutional framework

that is receptive of human rights (Article 10) and endorses the values of liberty, justice, equality and

political pluralism (Article 1). The Spanish Constitution recognises both the individual and collective

enjoyment of the right to religious freedom. Article 16.1 provides that ‘The freedom of ideology,

religion and worship of individuals and communities is guaranteed with no limitations, in its

manifestations, other than those necessary for the maintenance of the public order protected by the

Law’.8 Solozábal Echavarría includes religious freedom among the ‘Fundamental rights of collective

entitlement’9 (2001: 99) and stresses that ‘The Spanish society [...] is constitutively pluralist’10 (2001:

107), listing religious confessions among the collectivities that contribute to that pluralism.

Passed when religious diversity in the country was relatively at its infancy, the Organic Law 7/1980

articulates in more detail the right to religious freedom. Article 2.1 starts by constructing religious

freedom as the individual right of any person to profess one religion, to change it and to ‘manifest

7 In the original: ‘No está basada sobre una idea preconcebida, sino sobre las preguntas y las respuestas que genera la propia

práctica de gobernabilidad de la inmigración’. 8 In the original: ‘Se garantiza la libertad ideológica, religiosa y de culto de los individuos y las comunidades sin más limitación, en

sus manifestaciones, que la necesaria para el mantenimiento del orden público protegido por la Ley’ 9 In the original: ‘Derechos fundamentales de titularidad colectiva’.

10 In the original: ‘La sociedad constitucional española […] es constitutivamente pluralista’.

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freely’ (‘manifestar libremente’) her/his religious beliefs or their absence; to worship and to celebrate

festivities, marriages and burial rituals; to teach and receive religion-informed teaching; ‘To meet and

manifest publicly for religious purposes and to establish associations to develop her/his religious

activities at community level’11 in compliance with the Spanish legal system and the Organic Law.

Article 2.2 covers the collective dimension of the right and provides for the right of religious Churches,

Confessions and Communities to establish places of worship and reunion, to appoint their ministers, to

disseminate information on their religion and to maintain relations with their organisations and other

religious confessions, including abroad. Article 2.3 provides for measures of positive action (‘positive

content’, as in Contreras Mazarío 2010: 313) in selected areas. In particular, Article 2.3 states that,

‘[F]or the real and effective implementation’12 of the rights listed in Article 2, public powers will adopt

all the necessary measures to facilitate religious assistance in the army, in hospitals and prisons.

Finally, Article 3 sets the limits of religious freedom: the rights of the others as well as public security,

health and morality, which are considered the constitutive elements of the public order protected by

the law within a democratic society.

Organic Law 7/1980 defines also the institutional infrastructure through which religious freedom is

expected to be recognised, supported and articulated in practice. The Constitution remains very

general, in this respect. Article 16.3 provides that ‘Public authorities will take into account the

religious beliefs of the Spanish society and will accordingly maintain relations of cooperation with the

Catholic Church and the other confessions’.13 The Organic Law, on the contrary, is more specific and

provides that agreements are signed between the state and the organisations and federations that

represent the communities. Article 7 provides that, ‘Taking into account the religious believes that

exist in the Spanish society,’14 agreements can be signed with those communities that are registered at

the Ministry of Justice and ‘which for their extension and number of believers have gained notorious

settlement in Spain.’15 Following registration, religious communities acquire ‘legal standing’

(‘personalidad jurídica’) (Article 5) and enjoy ‘full autonomy’ (‘plena autonomía’), including in terms of

self-organization and regulation of their personnel (Article 6). The Advisory Commission on Religious

Freedom (Comisión asesora de Libertad Religiosa) is established within the Ministry of Justice,

composed of representatives of the state administration and the religious collectives and their

federations as well as experts on the matter (Article 8).

11 In the original: ‘Reunirse o manifestarse públicamente con fines religiosos y asociarse para desarrollar comunitariamente sus

actividades religiosas’. 12

In the original: ‘Para la aplicación real y efectiva’. 13

In the original: ‘Los poderes públicos tendrán en cuenta las creencias religiosas de la sociedad española y mantendrán las

consiguientes relaciones de cooperación con la Iglesia Católica y las demás confesiones’ 14

In the original: ‘teniendo en cuenta las creencias religiosas existentes en la sociedad española.’ 15

In the original: ‘que por su ámbito y número de creyentes hayan alcanzado notorio arraigo en España’.

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The institutional infrastructure designed by the Organic Law has been put in place. The Register of

Religious Entities (Registro de Entidades Religiosas, RER) administrated by General Directorate of

Religious Affairs (Dirección General de Asuntos Religiosos) has been created inside the Ministry of

Justice. In 1992, agreements were signed with the Protestant, Jewish and Muslim confessions after

their notorio arraigo was certified. These agreements added to the previous agreement signed by the

state with the Holy See in 1979. In the case of Islam, the state signed the agreement with the Islamic

Commission of Spain (Commissión islámica de España, CIE). Despite the rejections of many claims

related to religious freedom made by the CIE on the ground of their incompatibility with the Spanish

legal order, the agreement has been praised for giving Muslims a relative advanced legal framework of

religious freedom (Álvarez-Miranda 2006: 188-189). The agreement does not provide for direct

payment by the state to the communities but for tax relief for religious buildings and activities. It also

provides for the reasonable accommodation of the needs of Muslims in the employment and

educational sectors, the reservation of land in cemeteries, religious assistance in hospitals and prisons

and the promotion of Islam culture. At the same time, it is clear that this legal framework is very

centralised and built upon the relationship between the state and the the CIE. The exercise and

enjoyment of many rights is formally reserved to the communities of the CIE (Spain 1992).

However, this and the agreements signed with religions other than Catholicism have only been

selectively implemented. The problem is and remains redistribution. Limited resources have been

invested to support the new communities while the state has maintained the more established and

privileged relationship with Catholicism. Some of these privileges, including direct payments made by

the Spanish state to the Catholic Church, were eliminated but eventually replaced by others (Zapata-

Barrero, Zaragoza and de Witte 2009: 15).

Several explanations have been given for the limited implementation of the agreement with Islam.

First, there is the ‘morophobia’ (fear of the Moors) of Spanish society as well as the complex

interaction between religious diversity and the construction and maintenance of the Spanish multi-

national identity (Zapata-Barrero 2006: 143).

Second, there is the security agenda and the increasing politicisation of migration. The agreement and

its integrationist objectives have become less of a priority for the government compared to the need to

control Islam and fight terrorism following the March 2004 terrorist attack in Madrid (Zapata-Barrero,

2006: 151-152). Moreover, after losing the election in 2004, the Popular Party strategically intersected

the increasing social resistance to migration and began to politicise issues related to Islam (González

Enríquez 2007: 330).

Third, there is a problem of representation. The formation of the CIE was imposed on two large

organisations, the Spanish Federation of Islamic Religious Entities (Federación Española de Entidades

Religiosas Islámicas, FEERI) and the Union of the Islamic Communities of Spain (Unión de Comunidades

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Islámicas de España, UCIDE), which remain deeply divided around issues of doctrine, nationality and

the relationship with foreign states (Álvarez-Miranda 2009: 187-188). Moreover, since the agreement

was signed, the socio-economic reality of Islam has become more fragmented and diverse. Many new

communities, especially Morroccans, are poorly resourced and organised (Zapata-Barrero, 2006: 152).

Many are informal or register as cultural associations because this speeds up the process of opening a

place of worhsip. As of 2009, Spain did not have a register of the mosques and oratories. However,

about 70% of these are estimated to be managed by associations (which may not be part of the CIE)

and 30% not to be registered at all (Zapata-Barrero, Zaragoza and De Witte 2009: 17). Overall, a split

exists between the “Islam of the associations” (of mainly converted Spanish nationals) and the “Islam

of migrants” (Lopez García and Planet Contreras 2002: 158-167), which ‘can have very negative

consequences on the application of the agreement itself as well as the promotion of the social

recognition of the Muslim presence’16 (Moreras, 1998: 155).

Fourth, territorial authorities, and in particular municipalities, routinely fail to exercise their

competences in ways that concretise the agreement. These include the provision of land for places of

worship within urban planning. Resistance is mainly due to the politicization of religious issues,

especially when Islam is involved. The simple rumor that an oratory might be open in a certain

neighbourhood generate the protest of the authocton population according to a typical pattern where

racism and claims for better socio-economic conditions in the neighbourhood combine (Moreras

2008). Conflict is manipulated by more conservative parties and reprised at the state level. At that

point, the conflict is usually solved in favour of the authoctons. Local governments may extend

planning or construction permits to prevent the opening of the place of worship, change the

destination of a building or raising safety issues in relation to a building. When permission to open a

place of worship is given, it is often in the most peripheral parts of the city, eventually on the ground

that there is lack of land in the centre (Zapata-Barrero, Zaragoza and de Witte 2009: 16-26).

Significantly, many of these conflicts have taken place in Catalonia. Of the twenty-four cases of

opposition to the construction of a mosque or the opening of an oratory documented up to 2009,

eighteen had taken place in Catalonia (Zapata-Barrero, Zaragoza and de Witte, 2009: 18). Part of the

problem has to do with the significant concentration of migrants and Muslims in the region. Catalonia

is one the richest autonomous communities of Spain and has the highest concentration of Muslims.

Barcelona is the capital of Catalonia, the second richest city of Spain and home to the largest urban

Muslim community of the country. Many of these communities are informal and less integrated into

the CIE: at least as of 1998, the relative majority of the Muslim communities of Catalonia were not

affiliated to either federation of the CIE (Moreras 1999: 85-109).

16 In the original: ‘puede tener consequencias muy negativas, tanto para la aplicación del mismo Acuerdo, como para la promoción

del reconocimiento social de la presencia musulmana’.

12

It is arguably to manage religious diversity and issues within its territory that Catalonia put in place its

own system of institutional representation of religious communities. This step concretises Seglers

Gómez-Quintero’s argument for a multi-level approach to religious freedom based on an extended

definition (in Article 16.3 of the Spanish Constitution) of those ‘public authorities’ that ‘maintain

relations of cooperation’ with religions. This author finds that the Organic Law 7/1980 unduly

restricted this notion to the state, which in turn provoked the centralization of the institutionalisation

of religion (Seglers Gómez-Quintero, 2004: 144-145). The Catalan institutionalisation of religious

freedom is based on Article 161 of the Catalan Statute of Autonomy (Estatut d’autonomia), which

provides that the Catalan Government (Generalitat) has exclusive competences over the regulation of

the activities of religious communities in Catalonia and that it can sign its own agreements with the

communities. The institutional infrastructure put in place by the Generalitat, which has undergone

some changes over the years, is currently centred on the Directorate-General for Religious Affairs

(Direcció General d'Afers Religiosos; DGAR) and the Advisory Council on Religious Diversity (Consell

Assessor per a la Diversitat Religiosa). In 2002, an agreement was signed with the Islamic and Cultural

Council of Catalonia (Consell Islámic i Cultural de Catalunya) (Zapata-Barrero, Zaragoza and de Witte,

2009: 24-25). Through the DGAR, the Generalitat also provides funding for projects by the

communities, which allows the communities to actually support themselves financially. The state and

Catalan institutions work jointly. An agreement between the Generalitat and the state provides for the

participation of the Generalitat in the management of the RER and the participation of the Generalitat

in the state Advisory Commission on Religious Freedom.

The Catalan infrastructure of religious freedom, however, has not been able to solve one paradox often

stressed in the literature: despite its large Muslim settlement, Catalonia has no principal or ‘big

mosque’ (‘gran mezquita’) similar to Madrid’s. As a consequence of that, a myriad of oratories and

private places of worship exist, which make up approximately one third of all the oratories of Spain

(140 out or 450), opened mostly in the second half of the 1990s parallel to the increase of family

reunification and the residential stabilisation of male Muslim workers (Motilla 2004 as quoted in

Zapata Barrero, Zaragoza and de Witte 2009: 24). The absence of a principal mosque, on the contrary,

has been explained with the lack of political will on the part of the Catalan Government (Generalitat) to

build a mosque in Catalonia, which in turn has been related to questions already partly presented in

this paper, i.e. intra-community conflicts in the Muslim community, the lack of control over mosques

and the fear of terrorist infiltrations. References have been made also to the threat posed by Islam to

the Catalan identity and, as part of that, to the secular character of the Catalan society. While most

Catalans would continue to identify with Catholicism, Catalonia has one of the lowest levels of religious

practice in Europe (Zapata Barrero, Zaragoza and de Witte 2009: 25-26, Moreras 2009: 55).

In 2009 a large majority of the Catalan Parliament with the support of the representatives of all the

Catalan confessions (but not the Catholic Church) passed the pioneer Law 16/2009, which obliges

13

municipalities to identify land for new places of worship in urban planning. The law also provides that

public administrations have to authorise the use of public equipments and spaces as well as the

private use of public spaces without discriminating between the communities, with due consideration

of the degree of settlement and arraigo of each of them. However, the law was not well received. It

provoked the negative reaction of the municipalities and the Catholic Church. An amendment to the

law which suppresses the obligation to provide land is currently under consideration (Guardia

Hernández 2012).

Introducing the OAR: religious freedom “from below”

The Office for Religious Affairs (Oficina d’Afers Religiosos, OAR) is a service of Barcelona’s local

administration whose current stated mandate is to support ‘freedom of conscience and religion’.17 The

OAR is the expression of the progressive and innovative political culture of Barcelona, which combines

liberalism with attention for economic growth and administrative efficiency based on decentralisation

and participation (Amorós 1995). The city has a pluralist approach to issues of difference (Eggert and

Giugni 2011). From the end of Franco’s regime up to 2011 the city was governed by a centre-left

coalition led by the social democratic Party of the Socialists of Catalonia (Partit dels Socialistes de

Catalunya). In the mid-1990s, the Civil Rights Department (Regidoria Drets Civils, RDC) was

established. Within the centre-left government, the leaders of the RDC were members of smaller left-

wing/nationalist parties allied to the Socialists (Grigolo 2009). In 2011, when the centre-right party

Convergence and Union (Convergencia i Unió; CiU) won the elections, a member of that party started to

lead the RDC.

The victory of CiU in the latest elections is just the final outcome of a slow shift of local politics from

left to right (precipitated by the current economic crisis). As part of this shift, issues of migration and

religion have become increasingly politicised. In 2005, the Ordinance on Good Citizenship (Ordenanza

de Civisimo) was approved, which criminalises a number of typical migrant activities. In June 2010

another ordinance was passed which prohibits wearing the burqa, the niqab and any other clothing or

garment that hides the face, including motor helmets, in municipal buildings. The “question of the

burqa” emerged before the municipal election of late 2010 and was clearly politicised within the

confrontation between different parties, including within the governing centre-left coalition. In May

2010 the coalition had rejected a proposal coming from the Popular Party to ban the burka in all public

spaces because it offends women’s dignity and the values of coexistence. The local government ended

up passing a more limited ban that applies only to municipal buildings. It also clarified to the media

that the ordinance was not against any particular religion since it banned wearing anything apt to hide

the identity of people (El Pais 2010).

17 See http://w3.bcn.cat/dretscivils/0,4022,259064949_776256113_1,00.html, accessed May 10, 2012.

http://w3.bcn.cat/dretscivils/0,4022,259064949_776256113_1,00.html

14

The shift from left to right did not fundamentally alter the scope and the organisation of the OAR.

However, the new government may soon establish its own system of institutional representation of

the communities to integrate the work of the OAR. The new Mayor Trias recently appointed Ignasi

Garcia i Clavel as Director of Religious Affairs within the RDC. Garcia i Clavel was chosen in 2000 to

establish the Secretary of Religious Affairs at the Catalan level by the then conservative president of

the Generalitat Jordi Pujol. Clavel’s task is ‘to deepen the institutional relations between the

Municipality and the religious communities’.18

Until any system of representation of the communities is put in place, the OAR remains the main venue

for the communication and relation between the municipality and the communities. The history of the

OAR testifies to the complexity of this relation (and the difficulties that the current administration may

encounter in the future). The OAR’s forerunner was a commission of 20 representatives of mainly the

Christian religion (Catholic, Orthodox, and Protestant) that was to propose a reflection on the

increasing religious differentiation in the city and promote inter-religious dialogue. This commission

never really achieved that goal, apparently due to inter-community conflicts.19 Before becoming the

OAR, however, the commission changed name and structure more than once. The press reported the

inauguration of a religious centre in Barcelona twice in two different years (El Mundo 1998 and 2002).

Between 2004 and 2005 the centre was basically shut down. After the closure the RDC decided to give

it a more solid structure and launched a competition for the organization and management of the

centre. UNESCO-Catalonia (UNESCO- Catalunya, UNESCO- CAT) won the competition and since then

has been responsible for the centre.20 As of 2006, the centre had become the Interreligious Centre of

Barcelona (Centre Interreligiós de Barcelona, CIB). Finally, in 2008, in conjunction with a change of

administration, the centre was renamed OAR and inter-religious dialogue disappeared from both its

name and mandate.21 Currently, the OAR is a service whose main scope is to support freedom of

religion and conscience in the city.

While repositioning itself as a service, the OAR has not ceased to work towards some formalisation of

the relation between the administration and the communities. The OAR organises regular meetings

between the mayor and the communities. The first meeting was held in 2006 (OAR, 2006: 1) and, since

then, it has been repeated (Monteys, 2009). During the preparation of these meetings the OAR has

struggled with its own issues of representation. Commenting on the first meeting of 2006, the former

coordinator of the CIB admitted that the agency had to play ‘a balancing game, almost diplomatic’,22 in

order to respond as adequately as possible to, on the one hand, the interest of the municipality in

18 Information provided through email by Cristina Monteys, April 24, 2012.

19 Interview with Agustí Soler, Barcelona.

20 Interview with Francesc Rovira, Barcelona.

21 In the following I will refer to the agency as the OAR. I will distinguish mainly between the OAR and the CIB only when necessary.

22 Interview with Francesc Roriva.

15

addressing all the communities and, on the other, the need to select organisations that significantly

represent different confessions.

Otherwise, when acting as a service, the OAR maintains a multilateral relationship with all the

communities of the city, including the new ones. To put it the words of the OAR’s coordinator, ‘we

relate to all the world.’23 Through this approach, the OAR interacts with those communities that fail to

be represented within formal agreements. Not surprisingly, the institutionalisation of religion and

systems of representation established at supra-local levels may interfere with the OAR’s approach.

Communities whose notorio arraigo has been certified may be more active and demand attention but

may not be a relevant or significant local reality. For the OAR, in many cases there is a risk ‘to

empower hierarchies [...]. And sometimes diversity from below is much richer and is what you really

have to deal with.’24

The explicit and strong connection between the OAR and human rights is a qualifying element of the

OAR’s approach. The OAR’s mandate has to be understood in the context of the city-wide Barcelona

concept of ‘city of rights’ (Grigolo 2010), of which the RDC is a core component. This framework

includes international human rights but also the European Charter for the Safeguarding of Human

Rights in the City (ECHRC) “ratified” by the Barcelona City Council in 2000.25 The OAR integrates this

human rights approach with an inclusive secularism that contemplates the integration and

normalisation of the communities within the city. For the OAR’s coordinator, secularism ‘does not

mean to exclude religion but to create a democratic and participatory environment within which all

the world can stay’.26 Human rights also serve the important purpose of taking the communities out of

a state of ‘exceptionality’27 and sending the message that the local government not only works for

human rights but also that religious freedom is one of them.

This inclusive human rights approach to religious freedom is also informed by the Spanish notion of

religious freedom. When commenting on the transition of the OAR’s scope from inter-religious

dialogue to support to religious freedom, the former coordinator of the CIB clarified that the mission of

23 Interview 2. In the original: ‘nosotros nos relacionamos con todo el mundo.’

24 In the original: ‘potenciar a las jerarquías […]. Y a veces la diversidad por debajo es mucho más rica y es realmente con quien

tienes que lidiar todos los días.’ Interview with Cristina Monteys Homer. 25

The Barcelona’s City Council ratified the Charter in 2000. For the text of the Charter and more information on the process

that led to its approval see http://www.idhc.org/eng/131_ceuropea.asp. Article III provides for the right to cultural,

linguistic and religious freedom, to be ensured by cities ‘within the limits of national legislation’. It also recognizes the

‘individual and collective’ dimension of religious freedom. The same article is concerned also with ‘secular matters’,

whereby cities ‘encourage mutual tolerance between believers and non-believers, as well as between the various religious

communities’ (Article III). Article II, then, provides that the rights of the Charter are guaranteed by municipal authorities

without any discrimination on the ground (also) of religion. 26

Interview with Cristina Monteys. In the original: ‘no es excluir los religiosos sino que es crear un ámbito democrático y de

participación donde todo el mundo pueda estar.’ 27

Interview with Cristina Monteys. In the original: ‘excepcionalidad’.

http://www.idhc.org/eng/131_ceuropea.asp

16

the centre was ‘to accompany the communities in the processes they have to follow in order

to...especially in relation with the public administration, with the municipality...in order to achieve

their right to religious freedom, to freedom of worship, according to the laws and so on’28 (my

emphasis).

In order to be able to serve religious communities, since its early years the OAR has mapped their

presence and diffusion in the city. The OAR’s proximity to the communities arguably facilitates the

collection of information on the communities. Information on the communities and their activities is

available on the OAR’s website.29 This information not only provides the OAR with knowledge of the

same changing and fluid field in which it operates but also traces patterns of religious diversity in the

city. Between 2002 and September 2010 the number of communities/places of worship increased

from 375 to 460, mainly due to new religions. Data disaggregated by community show and impressive

variety of religions, one that goes beyond Islam and includes, in particular, a fast raising number of

Evangelical communities.30 Of course, the number of communities/places of worship does not

necessarily reflect the number of the members of the communities. Still, even if the vast majority (70-

80%) of Evangelical centres can contain no more than 60 people, these are very active and participate

regularly in religious activities as opposed, for example, to Muslims.31

Over the years, the OAR has substantially changed the way in which it prioritises and implements

different actions in support of religious freedom. While the OAR does not promote interreligious

dialogue directly anymore, it still advertises and participates in events organised by the communities.

It also promotes knowledge of religion in schools as a ‘social science’ (El Pais, 2009). Recently the OAR

also put in place initiatives related to gender and sexuality that intersect classical tensions between

human rights and religion. First, in 2010 the OAR organised a first meeting of women from the

religious communities. For the OAR, one purpose of the initiative was to look for a different kind of

28 Interview with Cristina Monteys. In the original: ‘acompañar las comunidades en los procesos que tienen que seguir para…sobre

todo en relación con la administración publica, con el ayuntamiento para llegar a cabo un su derecho a la libertad religiosa, a la

libertad de culto, de acuerdo con las normativas y tal’. 29

This does not imply that the OAR works routinely with all the communities and that all the communities want publicity. Some

communities prefer not to maintain institutional contact with the Office and be included in the OAR’s website, and they are not

interested in the initiatives and services of the Office. Interviews with Francesc Roriva and Cristina Monteys. 30

As of September 2010 Catholic parishes were still the majority of the communities (141, like in 2009). In 2006, 2009 and

September 2010 the number of Evangelic centres increased from 89-94 (this range was reported by Francesc Rovira during the

interview) to 124 and 131, respectively. This increase clearly relates to migration from South America, although Evangelism is also

diffused in the Spanish gypsy community. Over the same years, the number of Muslim oratories increased from 13 to 16 in both

2009 and September 2010. Other communities/places of worship counted by the OAR in 2010 include 22 Buddhist centres, 18

Kingdom Halls of Jehovah’s Witnesses, 8 Orthodox communities, 5 synagogues and Adventist churches and small numbers of Hindu

and Sikh centres. Data report also one atheist/agnostic centre. Data provided by Francesc Roriva during interview (related to 2006)

and by Cristina Monteys via email on November 24, 2010. In 2009, data from the OAR were presented to the media which

emphasised that in Barcelona the Non-Catholic Christian communities taken together had become more than the Catholic

communities (El Pais, 2009). 31

Interview with Francesc Roriva.

17

representation of religion, usually dominated by men, and identify women who could become a

reference for the OAR.32 Second, the OAR also participates in the implementation of the LGBT

municipal plan of the city and, for that purpose, put in place an interreligious working group on LGBT

issues.33

The OAR’s core activity in support of religious freedom remains assistance to the communities on a

variety of local legal issues of worship, e.g. the opening and maintenance of places of worship sites as

well as the celebration of religious ceremonies in open and closed public spaces. Interventions on

these and other issues have often been done as part of mediation between, on the one hand, the

religious communities and, on the other, both specific sectors of the local government and the city’s

neighbours.

With respect to mediation, however, some important changes have taken place. In particular, the OAR

has slowly abandoned mediation at the neighbourhood level between the communities and the

vecinos. The OAR does not intervene directly anymore in those potentially controversial and

politicized conflicts that characterize the Spanish and in particular the Catalan politics of religion. In

fact, at least in the past, when it was named CIB, the OAR’s interventions in these conflicts were not

very successful. According to its former coordinator, the CIB’s protocol on mediation between the

communities and the neighbours was ‘perfect on paper [but] we have never reached that ideal.’34 The

OAR is also aware that the administration is particularly reactive to any complaints filed by the

citizens.35 Currently, it is the neighbourhood technicians (tecnicos de barrio), established in 2009, who

are competent to receive and intervene on the neighbours’ complaints related to the communities as

well as any kind of issue. However, the OAR continues to intervene on religion-related complaints by

liaising with the technicians and presenting itself as an interlocutor whenever issues affecting or

involving the communities come up in the neighbourhood.

Overall, it seems that as it moved away from direct intervention in neighbourhood conflicts the OAR

prioritised mediation between the communities and those sectors and figures of the local

administration which are competent for dealing with the issues that affect the communities, e. g. the

Department of Urbanism, at district and neighbourhood level. The goal is arguably to make the local

administration more sensitive about religious issues so that the administration manages more fairly

also the conflicts between the communities and the neighbours.

One “special” sector of the local government with which the OAR collaborates is the local police

(guardia urbana). At this operational level, questions of religious freedom intersect questions of

32 Interview with Cristina Monteys.


34 In the original: ‘perfecto en papel’ but ‘esto ideal no lo hemos logrado en ningún caso’. Interview with Francesc Rovira.


18

security, especially when Muslim communities are involved. The local government has a general

interest in knowing what the communities are36 and it is often the police that take the initiative of

contacting the agency. Because it maps and deals with the communities, the OAR usually knows their

activities, their relations, or their judicial school and ideological orientation. Yet, according to the

OAR’s coordinator the police already have much of this information. Collaboration seems to take place

on a ground of mutual interest. The OAR informs the police on its activities with the communities and

whether the communities mentioned any problems they have. The OAR does not go beyond that

‘because it is not our field’.37

This and eventually other types of information are arguably of interest also for the Generalitat. The

OAR exchanges information with the Catalan DGAR on a regular weekly basis and they also work

jointly.38 Much of this activity probably concerns the implementation of the controversial 2009 Catalan

legislation on places of worship. Considered altogether, it seems that a multi-level governance of

religion is emerging, where the established “top down” and centralised state approach is integrated by

the regional and local levels as territories and in particular the spaces of the city emerge as the level at

which the life and activities of different communities can be known and important competences

related to religious freedom are delegated, exercised and eventually contested.

Supporting religious freedom

When doing mediation the OAR confronts different views on religious freedom and its legal borders.

At the poles of the spectrum of positions met by the OAR there is, on the one hand, the (Catalan)

neutral secular attitude of many people in the public sector who hold that religious freedom belongs

only to the private sphere. The OAR meets this position of neutral secularism in several of its activities,

not only mediation. The OAR’s offers to do activities in schools have been very often ignored,

especially in public schools, and, in at least one case, openly rejected on the ground that religion is a

private matter.39 During fieldwork, one reason provided for this negative attitude among city

employees and officials is the identification of religion with conservative education and values

imposed by Franco’s regime within its strong alliance with Catholicism.40 On the other end of the

spectrum there are the communities, many of which conceive religious freedom as an absolute and

unlimited right and complain to the OAR that they are discriminated. Muslim communities complain

about racism. Interestingly, autochthon Evangelical communities feel that, after they proactively

fought against Franco’s regime, they are now being rejected by democratic institutions.41


37 In the original: ‘porque no es nuestro ámbito.’ Interview with Cristina Monteys.



40 Interview with Rosa Bada.


19

The OAR is clearly positioned between the two poles. If necessary, the OAR uses the law, including

human rights and Spanish legislation, to support mediation. Over the years, however, the OAR’s scope

for using the law and the type of laws it uses seem to have changed. In the past, the CIB would more

routinely use human rights with people in the local administration to try to reach an agreement that

met at least partly the requests of the communities. Invoking human rights was part of a ‘work at a

pedagogical level’42 which the coordinator thought it was necessary to do within the administration,

especially concerning the expression of religion in public (meaning outside the private sphere and

closed spaces like churches). People in the administration would pay some attention to human rights

arguments, more on the basis of the ECHRC than international human rights. The ECHRC circulated

within the administration and people knew it existed and that ‘[it] has a certain moral authority’.43

Currently, the OAR still introduces itself to both the communities and people in the administration

with the human rights hat. However, human rights are hardly used as an argument or standard during

interventions and mediations. Actually, at the moment the OAR seems to be using more the Spanish

notion of religious freedom with the communities, to launch the message that their right has indeed

limits. Still, with respect to the ECHRC, the coordinator admitted that ‘it would be interesting including

for the communities to have it’44 (my emphasis).

This change may have to do with the former CIB coordinator’s personal choice and better knowledge

and awareness of human rights. During the interview he made explicit references to several standard

documents of human rights and seemed overall more committed to use them. Over the years, however,

the situation has arguably also improved for the communities and this may have made the use of

human rights arguments less necessary. According to the OAR, the Office has fairly succeeded in

normalising the situation of many communities and having the local administration to acknowledge

their existence and needs. At the very general level, there seems to be an at least partly crystallised set

of positions, relations and expectations within the local administration around issues of religious

freedom which is more advanced than in the past and makes the use of human rights somewhat

redundant.

Within this general picture, however, many questions remain open and problematic. The analysis of

the work of the OAR shows different types of interventions and mediations. They regard situations

which are connected in different ways to the right to religious freedom. In the following I introduce

this work moving from issues that are more clearly detailed and regulated by the law, especially local

regulations, towards issues where administrative discretion may be expected to have a stronger

influence. In all cases, we will see that there is room for both mediation and discretion and that, as the

42 In the original: ‘trabajo a nivel pedagógico’. Interview with Francesc Roriva.

43 In the original: ‘tiene una cierta autoridad moral’. Interview with Francesc Roriva.

44 In the original: ‘‘sería interesante incluso por las comunidades que la pudieran tener’. Interview with Cristina Monteys.

20

law and politics of religion converge, the OAR and its human rights approach meet with uneven

success. We will also get a more sophisticated picture of religious issues in the city, especially in

relation to Evangelical communities, beyond the usual attention (one may say obsession) with Islam in

the literature.

A core issue in which the OAR intervenes regularly concerns places of worship, both their opening and

licensing. The city’s Department of Urbanism inspects places of worship and gives permissions for

their public use in accordance with local safety regulations. According to the OAR, this is currently

“the” issue for the Evangelical communities. The OAR’s interventions in this area increased from five in

2005 to more than fifty in 201045 parallel to the diffusion of the Evangelical communities. Following

the enactment of the 2009 Catalan law on places of worship, the OAR began to discuss and clarify

details and requirements of the law with both the municipal technicians and the communities.

The OAR’s interventions take place when places of worship are being opened or when they are already

open. Many places are actually discovered by the Department following a complaint by a neighbour,

typically for noise. Works are sometimes made on a building without a licence by the Department. The

OAR clarifies that in some cases questions of safety are substantial, e.g. when works affect the walls

that support a building. In these cases the Department issues an order to stop any activities until the

necessary works are made on the building. Normally the communities continue the activities and do

the works at the same time and in this case, if there is another complaint, the Department may close

the place. However, according to the OAR the Department gets to that point in ‘very flagrant cases’.46 In

the case of a church that was well established in a neighbourhood a plan was agreed that allows the

community to span the costs of the works over time. In general, the OAR advises the communities to

keep both the district authorities and the neighbours up to date with the works, and to invite the

neighbours to see the works so that a relation of trust is established between the communities and the

neighbours.

Issues of land use emerge clearly when the communities plan to build a new place. The stakes become

higher and the OAR’s interventions may be less successful, especially when space is limited. According

to the OAR, new places of worship are currently being built mostly at the peripheral districts of the

city, where more space is available and a lot of migrants reside.47 One example clarifies the issues at

stake and how administrative discretion can interfere with compliance with rules. The case is that of

an Evangelical community of 500 members which presented a regular project to expand its church (a

small building in a narrow street) to incorporate a small lot behind the church. The administration

denied the permission on the ground of the problems of mobility and parking that a bigger church


46 In the original: ‘casos muy flagrantes’. Interview with Cristina Monteys.


21

could create. Statements made by the community that people would use public transport to get to the

church were not trusted. At the same time, the administration decided to do renewal works on a long-

abandoned small square on the side of the church which was/could be use as a parking area. The OAR

helped to reach a compromise, whereby the administration committed to provide another building. As

of 2010, however, the works were stuck for lack of money.48 Even when a solution is found, the

neighbours of the area where a new place of worship is planned have to be prepared. Recently, the

Orthodox community managed to have land and a project for a church approved. The church is

currently under construction (Urbanoticias.com, 2011). The OAR was involved in the process and

acknowledged that the neighbours had to be reassured that the church was being made by and for the

Romani community and that it would not attract ‘gypsies’49 (one of the most discriminated ethnic

groups in Spain).

In the case of the mosque, the OAR does not seem to be doing any kind of intervention or mediation, at

least directly and/or publicly. At least in the past, the question of the mosque was a recurrent theme in

the relationship between the OAR and the Muslim communities.50 The Office certainly facilitated the

communication between the mayor and the Muslim community (as well as the other communities

with respect to their own places of worship). During the first 2006 meeting between the communities

and the mayor hosted by the CIB the communities raised the issue of the mosque explicitly but the

Mayor responded that there is no land in the city for the Mosque. This remained the official position of

the local government at least until the recent change of administration. In 2009, also the former head

of RDC embraced the mayor’s position.51 From within the administration the lack of a project

supported by all the communities was also problematised.52 The coordinator of the OAR highlighted

both the lack of political will as well as the lack of resources and organisational capacity of the very

small, atomised and often divided communities.53 As we see, these arguments do not differ

substantially from findings already presented in the literature.

Another typical question in which the OAR intervenes is the use of public spaces for religious

celebrations and festivities. Spaces include, typically, closed sport centres (polideportivos), civic centres

(managed by districts) and open public streets and squares. Muslim communities often ask to use

public equipments for Friday prayers and the end of the Ramadan. The Catalan law on places of

worship requires that the use of these infrastructures is permitted without discrimination between

the communities. However, public powers are still exercised in a discretionary way. There are cases of


49 In the original: ‘gitanos’. Interview with Cristina Monteys.


51 Interview with Joaquim Mestre.

52 Interview with Rosa Bada.


22

districts that refuse to give the civic centres for religious ceremonies as a rule and, according to the

OAR, this is an issue that should be solved ‘at another level.’54 Otherwise, the OAR intervention can

make a difference and provide guidance. In principle, the OAR asks the communities to alert the Office

when they make a request to the district to use a space but also alerts the communities that ‘they can

get a no’.55 In many cases, those responsible for the authorisation to use the space call the OAR because

‘they themselves find that they do not really know what to say.’56 In order to improve mutual

knowledge and trust the OAR organised a meeting between the representatives of Muslim

communities and those responsible for the sport infrastructures of the municipality to discuss the

issue and establish a relation. Also in this case, questions of representation had to be dealt with.

This is also one particular area in which in the past the CIB would refer to human rights to try and limit

administrative discretion. For example, the CIB used human rights to reach a compromise between the

administration and the Evangelical communities on the use of public squares for religious

celebrations. The communities wanted to use the square every Sunday while some in the

administration would simply deny any the use of the public space by the communities. In talks with

the administration the CIB’s coordinator would regularly raise the issue that the communities ‘have

some right, albeit not absolute’57 to perform religious acts on the street. In the end, the OAR mediation

managed to guarantee that the Evangelical communities could use the city’s squares a certain number

of times per year.58

The OAR has dealt with issues that affect particularly the Muslim communities. For example, it did

mediation around the reservation of lots for Muslim burial rituals in the cemetery of the city. This is

also one issue in which the OAR confronted limits imposed by the state agreement with the CIE. The

case concerned communities which were not represented by the CIE and would, in principle, require

permission by the official Muslim representation in order to be granted a lot in the cemetery. The

authority of the cemetery was nevertheless ready to give a lot to these communities. In the end, the lot

was given, albeit ‘with some quarrel’.59

Another instance is particularly illuminating of the connection between the work of the OAR with

Muslims and the security agenda. It regards the protests organised in 2006 by the local Muslim

communities against the Danish comics portraying the prophet Mohammad. Similar demonstrations

were organised also in other Spanish cities (Zapata-Barrero, Zaragoza and de Witte, 2009: 26-29). In

cooperation with the police, the CIB discussed security issues openly with the communities. On the one


55 In the original: ‘que les se puede decir que no’. Interview with Cristina Monteys.

56 In the original: ‘ellos también se encuentran que realmente no saben que decidir. Interview with Cristina Monteys.

57 In the original: ‘algo de derecho tienen, aunque no sea absoluto’. Interview with Francesc Roriva.

58 Interview with Francisc Rovira.

59 In the original: ‘con una cierta polemica’. Interview with Cristina Monteys.

23

hand, it wanted that no person within the communities created problems. On the other, the CIB was

concerned that nobody attacked the communities during the demonstration. According to the CIB

coordinator, ‘to know [the communities] is useful when you deal with this type of situations’.60 In the

end, a solution was reached whereby the communities committed to control their members and police

intervention was avoided.

The OAR was instead excluded from any official talks on the ban on the burqa. The question was

decided within a commission of the municipality (the Commission on Immigration) in which the RDC

did not participate. The OAR, however, intersected the complaints by the communities concerning the

ordinance. According to the OAR, Muslim women ‘are fed up, it is an issue [the niqab] that comes out

everywhere’.61 Moreover, ‘[The communities] are not aware of seeing any woman wearing a niqab,

they say that there are some but that this is a very limited phenomenon. Instead, for the majority who

does not use it, [the decision] was perceived as a threat’.62 As of November 2010, however, the

ordinance had not been actually implemented. The revision of all the municipal building regulations

that are needed to concretise the ban had not been approved. There is a sense that, unless the current

more conservative government decides to revitalise the ordinance, the law will remain a symbolic act

performed for electoral purposes.

Conclusions

The question of how institutions accommodate rights is as important as their mobilisation. In some

respects it is more important, because institutions are expected to enforce rights, exercise power and

affect the lives of people in a more direct way. This paper presented a case of implementation of a

right, religious freedom, which touches upon a crucial issue in contemporary pluralist and

multicultural Europe. It focused on the local level and how cities provide the physical space for the

manifestation of religious freedom as well as a crucial legal and political space for the regulation of the

right to religious freedom. At the same time, it showed how the local level is connected, both legally

and politically, to supra-local levels of governments where religious freedom is mobilised and

institutionalised.

The case of Barcelona suggests important reflections on larger debates on the institutionalisation of

religious freedom and the particular Spanish, increasingly multi-level arrangement. The OAR is

increasingly connected to Spanish and Catalan institutions that are concerned with religious freedom.

The OAR has a deep, contextual knowledge of religious communities and issues in Barcelona, which

60 Interview with Francisc Rovira.

61 In the original: ‘están hasta las narizes, es un tema que sale en cualquier sitio’. Interview with Cristina Monteys.

62 In the original: ‘no son concientes de haber visto una mujer con niqab, dicen que si hay alguna pero es una cosa muy minoritaria.

En cambio, para la mayoría que no lo usa igualmente [the decision] se vivió como una cierta amenaza’. Interview with Cristina

Monteys.

24

makes it a strategic partner especially for the Catalan DGAR. The recent appointment of a Director of

the OAR shows that we may soon see both the Spanish and Catalan arrangements with the

communities replicated and adapted at the local level. This step may simplify some aspects of the

OAR’s work where representation is involved. At the same time, the case of the OAR exposes important

limits of the French-type of institutionalisation of the relations between religious communities and

political powers. In a context like Spain and in particular Catalina and Barcelona, where communities

are internally diverse and many (want to) remain informal, the attempt to have the communities

federate and speak with one voice may not simply fail but also be counterproductive. This type of

arrangements creates divisions and hierarchies between the communities which may hinder a

“pragmatic” and “practical” accommodation of religious diversity. Overall, the paper suggests that a

more open, flexible and locally articulated process of accommodation of religious diversity, like the UK

model, present some important advantages with respect to the centralised model, even if, like in the

case of Spain, this model is being decentralised through its replication at sub-state levels.

The limits and perversions of representation exposed by this paper are relevant also for the debate

about collective and individual rights. The OAR’s open and “universal” human rights approach to the

communities clashes against a Spanish legislation and model of accommodation which is heavily

centred on collective rights. If necessary, the paper alerts once again that the question of entitlement

of any collective rights is not an easy one and that honest representation, which for some should be

criteria for obtaining entitlement, is difficult to achieve and, if ever achieved, that it has to be

continuously renegotiated to keep representatives in touch with those they are supposed to represent.

The opportunity for collective rights should always be considered against that of sticking to human

rights and taking them seriously.

At the implementation level, the work of the OAR suggests interesting reflections on different

interpretations and applications of the right to religious freedom. The OAR’s human rights framework

as well as conceptualisation of secularism is inclusive of religious differences, communities and their

public dimension and visibility. The larger city environments, however, is dominated by rejection, or at

least scepticism surrounding religion and, in particular, its public dimension. Within this context, it is

intuitive that the OAR’s interventions often meet limits that it cannot overcome or that it may not want

to try to overcome too strongly. The OAR has a role in promoting the integration and visibility of the

communities, insofar as it moderates the asymmetries of power between the communities and the

local government and neighbours. An evolution is visible in this respect, but inequalities persist. There

are limits to the OAR’s capacity to support religious freedom. Even when solutions are reached by the

OAR these may be pragmatic but not always entirely fair. We should be reminded that a practical

philosophy does not translate immediately into justice and compliance with human rights, especially if

the conditions within which compromises are sought and reached are deeply unbalanced. The work of

the OAR suggests that a stronger intervention, possibly from ‘another level’ or power, is necessary in

25

order to align different sectors of local administrations to at least the standards defined by national,

regional and local legislation.

Different types of issues and limits emerge as we move from the consideration of more private as

opposed to more public issues of religious freedom. In general, the paper suggests that, especially

when talking of new communities and religious freedom in cities, there is hardly any purely private

issue. A “private” place of worship occupies a space, is regulated by public authorities and, even when

informal and eventually invisible, may be forced to become public and a public political issue at any

time. The case of the occupation of “public” spaces certainly confronts us with a purely public

manifestation of religion, but also with more discretional standards of decision and implementation.

As we move from private to public worship, the “Spanish” and “human” notion of the right to religious

freedom are engaged by the OAR where human rights can, at least occasionally, be used to steer

administrative discretion. This is clearly easier in the case when only one administrator, with a more

open attitude, is ready to accept a human rights argument. This argument is arguably less effective

within processes of urban planning influence by (stronger) economic and political factors.

One paragraph needs to be spent on Muslim communities. While, at least in Barcelona, the activism

and diffusion of the Evangelical churches is higher than theirs, dealing with Muslims communities

remain a visible and particular politicised “issue”. As the OAR deals with Muslims communities, it

becomes involved with harder and more politicised questions of religious freedom. Questions of places

of worship, and in particular the big mosque issue, are harder to accommodate. Security becomes a

priority, also for the local government. The OAR has played a mediation that at least partly supports

the communities, i.e. their public manifestation and freedom of expression in the case of the Danish

comics. In other instances, the OAR has done little, assuming that it wants to do something, because of

its marginal political power and representation in decision-making processes related to questions, like

the mosque and the burqua, which affect only these communities.

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