13 February 2018 – Video and text of the paper by Professor Pietro Nocita, past-president and founder of FOB, at the International Convention Law and Freedom of Belief in Europe, an arduous journey, held in Florence on 18-19 January 2018.
The Legal Status of Religious Denominations Other Than the Roman Catholic
The religious denominations other than the Roman Catholic are regulated by constitutional norm and to be precise by the article 8.
This article is expressed with three paragraphs whose provisions must necessarily be interpreted in accordance with other constitutional norms and precisely with the preceding article 7.
The provisions of the article7, that concerns the relation between the State and the Roman Catholic Church, are not a matter that concerns us here, if not indirectly and for possible claims of treatment on equal terms, which is our theme.
On the contrary, a correct interpretation of the provisions contained in the article 8 calls for that the interpretation has to be correlated with other constitutional provisions relating to the relations with systems exterior to the State such as the articles 10 and 11; with the position of the individuals and of the social groups in the system, articles 2 and 3.
Finally, with all the freedoms guaranteed by the Constitution because they contribute to protect the religious guarantees, such as the articles 17, 18, 21 and 51.
Specifically, the article 19 governs the religious freedom.
The right that arises from this constitutional norm consists in the power to profess "freely" one’s own religious faith, individually or in association form; to disseminate it and to worship in private or public.
These freedoms have only a limit that consists in the prohibition of rites contrary to “public morality.”
The concept of public morality must not be limited only to sexual episodes, but it has a broader extent. For instance, it is an action contrary to the public morality the scene of a chastely and fully dressed mother that speaking to his teenage child says, “I go to steal”, “I go to beat my female neighbor”, “I’m going to have a sexual intercourse with my lover.”
In these examples of actions contrary to public morality there is neither any obscenity nor sexual scenes.
The representation of atrocity is considered an offence against public morality according to the psychological law of the reflex: only the man who feel himself tempted to follow that given behavior because of obscure reasons will feel himself offended and alarmed by a given representation of that given behavior.
Therefore in this case it can be said that the representation in question has the function to reveal to the subject what he didn't know about his own subconscious reality.
At the same time, if in that case the subject doesn't become aware of the telltale function that such representation can have for him, the representation itself it is seen by the subject as a potential danger for others.
Hence the tendency of the single censors to try to prevent the diffusion of the type of representation that makes them to react personally in a negative way: that is in the sense of their failure to realize their repressed, latent, subconscious temptations.
The art. 8 must be interpreted, as said earlier, keeping in mind the constitutional provisions regarding the systems that are external to the State, such as the obligation to comply with the generally recognized international law norms and provided for by the art. 10 and the search of a pacific cohabitation provided for by the art. 11.
There is no doubt that, even if not properly, these two mentioned last articles have to be taken into account in the interpretation of the art. 8, particularly in the current historical period that shows continuous events of serious violence.
In the interpretation of the aforesaid norm it is necessary to take into account also the position of the individuals and of the social groups in the State’s system, as enforced by the articles 2 and 3 of the Constitution.
Moreover, to guarantee the religious social phenomenon one does not need to forget what is decreed in general by the Constitution for all the freedoms that are essential to guarantee the religious social phenomenon.
It is necessary, specifically, to keep the art. 17 in mind that guarantees to the citizens the right of meeting.
Together with the right of assembly, the right of association is guaranteed by the art. 18 and also one need also to take into account the right to express freely one’s own ideas by word, in writing and by all other means of communication, guaranteed by the art. 21.
The coordination of the constitutional norms now recalled do not leave any room for doubt on the right of the citizens of denominations other than the Roman Catholic and they represent a primary rank disciplinary rule in the legal set-up of the religious social phenomenon, but more importantly these norms set out the right to the existence of denominations other than the Roman Catholic and their structure as systems whose relationships with the State are governed by the articles 10 and 11 of the Constitution.
The first paragraph of the art. 8 states that "all religious denominations are equally free before the law."
The norm refers to all the religious denominations and therefore also to the Roman Catholic Church.
This norm specifically joins the religious denominations other than the Roman Catholic with the preceding art. 7 and therefore it is necessary to conclude that the provisions regarding the religious confessions derive from systems and their relations with the State – the relations that guarantee religious freedom – must be seen from this standpoint.
The constitutional norm doesn't give any definition of the "religious denominations in general" and of the "religious denominations other than the Roman Catholic in particular."
According to the authorities' interpretation the constituent assembly refers to the "social concept" of religious denomination.
It is difficult for the legislator to find a formula that defines the notion in question.
On the other hand the various social groups that define themselves as religious denominations, or that aspire to this status, are very different one from the other and it is difficult to classify them into a single category.
The religious denomination is different from the so-called prayer groups, and also it cannot be considered a religious denomination an operating group, such as the Salvation Army, which was not considered as such by the decisions of the Court of Cassation in a distant decision passed before the coming into effect of the constitutional norm; a decision that pronounced that this association was not a religion.
A qualified author defines "religious denominations", on the juridical plan, "the lasting social communities having their own and original concept of the world, based on the existence of a transcendent being which has a relationship with the men."
The community that rises to religious denomination has the power to dictate rules for the denomination members and has the right to establish its own statutes with the only limit that they are not in conflict with the Italian legal system.
The religious denomination can enforce behavioral rules to its own followers and can negotiate, as an autonomous system, with the government system.
The first paragraph of the art. 8 advocate a substantive equality of the religious denominations and therefore a different treatment of the religious denominations other than the Roman Catholic, in comparison with some of them or with the Roman Catholic religion, could violate the art. 3 of the Constitution that proclaims the freedom and the equality of the citizens as a development of the person and the real participation to the political, economic and social organization of the Country.
The "accords" that govern the relationships with the Italian State have to guarantee in a binding manner the conditions for the existence and actions of these social formations and to guarantee to the latter a more effective exercise of the liberties guaranteed by the Constitution.
It is necessary to implement the stance expressed by the Constitution without to have recourse to the superfluous addition of an ordinary law, but through a relationship among two primary systems, one represented by the State and the other by the statutes of the single religious denominations other than the Roman Catholic.
The religious denominations other than the Roman Catholic must be considered as legal systems and the second paragraph of the art. 8 states the provisions that concern the structures of these social groups and their relationship with the State.
This paragraph heralds what is decreed in the last paragraph of the article.
The Constitution recognizes to the religious denominations other than the Roman Catholic the status of legal system and, therefore, distinguish them from what is decreed by the Constitution for the right of association.
The relation with the government organs should not be referred to the Ministry of the Interior, that according to an eminent jurist can be mistaken for a police-like control.
From the coordinated reading of the constitutional provisions, the religious denominations other than the Roman Catholic having organizational statutes, as noticed by a qualified author, and not in conflict with the Italian [legal] system, are primary and independent systems and only the confessions governed by abnormal organizational statutes are entities subordinate to the law of the State.
As to the relation among the religious denominations other than the Roman Catholic and the State, this is regulated by "accords" for legislative provisions.
The provision contained in the second paragraph of the article 8 of the Constitution concerns the position that the State recognizes to the religious denominations other than the Roman Catholic.
This provision contains also the guarantee that neither the ordinary legislative power nor any State authority can dictate provisions about the organizational statutes of associations other than the Roman Catholic.
Thus the constituent assembly has set the fundamental criteria of the relation among State and religious denominations other than the Roman Catholic and that consist substantially in the organizational freedom; in the independence of these social groups; in the pursuit of religious aims of their confessions.
The third paragraph of the article 8 provides for, only when it is necessary and appropriate, that the legislator dictates norms on the religious denominations other than the Roman Catholic.
The nature of these provisions manifest itself only when the religious denominations establish relations with the external world: employment relationships; welfare; fiscal relations.
Moreover, these norms can result appropriate when the denominations act within the civil society.
Therefore, these norms are restrictive of the legislative power, also considering that the constitutional norm guarantee to these organisms that the promulgated or yet-to-be-promulgated laws have to be respectful of the "accords with the relative representatives."
If you take a close look the provision for the promulgations of agreed upon laws applies to the religious denominations other than the Roman Catholic a treatment analogous to that given to the Roman Catholic Church in the article 7.
The "accords" are, as regards to the legislative power, as defined by the authors, a "condition of constitutional legitimacy", an “authorization prerequisite" aimed "at removing a limit" to the exercise of the legislative power. The accords ensure that the ordinary legislator cannot get round the constitutional guarantee offered to the religious minorities.
The legislator is bound to abide by the accords and if he wants to legislate he can do it only turning them into law.
The religious denominations have the capacity to enter into accords with the State when they have already made use of the freedom of organization guaranteed by the first part of the article 8 of the Constitution.
The State organ competent to enter into accords is the Government.
The Ministry where it is carried out the function of the Central Directorate of Cults Affairs it is the Ministry of the Interior.
These attributions date back to a norm provided for by the decree of July 20th 1932, n. 884 that has transferred the cult affairs attributions from the Ministry of Justice to the Ministry of the Interior.
An enlightened author has noticed that the attribution of the matter to "organs accustomed to what they say a police procedure" it has nothing to do with the constitutional norm which doesn't allow preventive checks on the religious denominations other than the Roman Catholic statutes.
The constitutional norm provides for that the relations among the religious denominations other than the Roman Catholic and the State are governed on the basis of bilateral acts.
In these acts the State appears in a contractor capacity and not in that of holder of a power of an imperium.
The religious denominations other than the Roman Catholic, in the current normative set-up, appear separated from bureaucratic divisions of the administration and are subject only to the political competence of the Government, which evaluates the accords from the standpoint of the respect of the Constitution.
The content of the accords concerns possible and various themes that range from the religious education to the public school, to the regulation of marriage and to the legal status of ministers.
A debate is under way about to the legal nature of the accords, that is if they are to be considered as acts of national or international law.
The accords should be considered as acts of international code that arise from the meeting of the State’s will with the will of the religious denominations other than the Roman Catholic and regulated by the good faith and loyalty rules that govern the bilateral relations between independent systems.
The legislative procedure for the carrying out of the accords arise from an initiative that is up to the Government in an exclusive way.
The initiative is up to the ministers competent for the matter.
The accords, because of the limitation provided for by the third paragraph of the art. 8, prevent the ordinary lawmaker from promulgating norms that counter with the art. 3 of the Constitution.
It is necessary to guarantee to the religious denominations other than the Roman Catholic the exercise of the rights that stem in general from the quoted article 3 of the Constitution.
Professor Pietro Nocita