by Francesco Alicino — Abstract: 1. Introduction - 2. The emblematic case of the (failed) approval of Buddhist ministers of religion - 3. The entry into force of Law 245/2012 approving the understanding with the UBI - 4. The approval of the appointment of Fudenji ministers vs. the approval of the understanding with the UBI - 5. - The law ex art. 8 (c. 3) Const. and the understanding with the UBI. Formal identity vs. substantive conformity - 7. The law approving the understanding with the UBI and Art. 20 of the Constitution. - 8. What is the purpose of the decree of approval under article 3 of Law 1159/1929? - 9. Conclusions.
1. Introduction
In the Italian Constitution the regulation of relations between the State and religions hinges on the principle of equality, which implies respect for the right to difference (equality in difference). [1] A principle and a right that is often functional to the autonomous subjectivity of individual confessional organizations (Art. 8, c. 2, Const.), adhering to which an individual can develop his or her personality (Art. 2 and 3 Const.), [2] religiously oriented. [3] This explains why the hypothesis of favour legisem> with respect to these social bodies is not excluded in our legal system, such as to gratify them "in their personalistic fruitfulness”. [4] Without prejudice to the equality of the conditions of freedom, each of these differentiated identities can therefore be protected with recourse to the instrument of bilateral negotiation, which comes into play precisely when unilateral legislation is "rigid or generic and a derogation or specification is sought to avoid a conflict between loyalty to the State and confessional identities”. [5]
We are faced with one of the most important features of the conventional mechanism under Article 8 (c. 3) Const. nevertheless contradicted by a long governmental and parliamentary practice, marked by a substantial standardization of the content of the understandings, whose capacity to give relevance to the "identity provisions" [6] of the individual denominations concerned has thus been reduced. [7] From being a means "to emphasize identities", the understanding has in fact become "proof of the reliability of the Churches", which can thus access to "tax advantage" or "economic-financial resources of a public nature”. [8] In this way, standardization attests itself as a autophagic "creature" that, distorting the objectives of the institution referred to in Article 8 (c. 3) of the Constitution, feeds and strengthens itself through elements it produces. This is demonstrated by the leveling of the attitude of the institutional leadership of the stipulating organizations, which, concerned not to excessively stiffen the negotiation with the State and make it easier to sign the understanding, are often inclined to eliminate from the negotiation the specific and peculiar aspects of their subjectivity. [9] Those same aspects that, instead, the understanding should have exalted and honoured. [10]
Sometimes the specificities of the Confessions are satisfied-or so it is believed, erroneously on the part of the religions concerned-by subtracting themselves from the common discipline unilaterally prepared by the State. And that is when the higher availability of denominational organizations can give rise to paradoxical aspects. This is evidenced by the case of the civil relevance of religious marriages performed by Buddhist ministers of religion.
2. The emblematic case of the (failed) approval of Buddhist ministers of religion
The paradox is fed through the swirling succession of ministerial decrees, administrative appeals, briefing notes, court orders and rulings, and laws for the approval of understandings. Acts that, punctuating the plot of events, are entangled around a seemingly innocuous initiative, dating back to June 9, 2009 when, in accordance with Article 3 of the Law of June 24, 1929 (no. 1159) and Article 20 of the relative Royal Decree of February 28, 1930 (no. 289), [11] two Dharma masters from the Italian Zen Sôtô Shôbôzan Fudenji Institute - an organization legally recognized by the State [12] and a member of the Italian Buddhist Union (UBI) [13] – requested governmental approval for their appointment as ministers of religion. This request was approved by both the Carabinieri Command and the Prefecture of Parma.
Ten months passed and, after having forewarned the interested parties, [14] the Ministry of the Interior rejected the application, disregarding the detailed observations produced in response to the rejection notice. The motivation is rather meager: “the preliminary results do not allow a positive evaluation of the application”.
Against the ministerial decision, the Buddhist masters lodged two separate appeals with the Regional Administrative Court of Reggio Emilia, seat of Parma, claiming violation of, among others, art. 10-bis of the law of August 7, 1990 (no. 241) on administrative procedure: the acts of the central administration are distinguished by failure to indicate the reasons for the refusal of the application. This was followed (September 15, 2010) by two ordinances of the same content, in which the Court of Parma suspended the effects of the ministerial measure, but only "for the limited purpose of renewing the proceedings". [15] In practice, it invites the top administrative body to re-examine - with more care - the issue, assessing it from the profiles of legitimacy and appropriateness.
However, the Ministry remained firm in its positions. After informing the applicants once again of the reasons that prevented approval of the appointments, on December 21, 2010 it issued new decrees of rejection, with similar contents to the previous ones. With one difference: the Administration wishes to specify that the approval would be "necessary" only for the purpose of "recognizing civil effects" of the marriage union celebrated by the minister of Buddhist worship, the other functions indicated in Royal Decree No 289/1930 being considered either "superseded by constitutional principles (Articles 3 and 4)" or "not current" on the basis of Articles 7 and 8 of the same Charter. Considering that the institution of marriage is not provided for in the understanding signed by the UBI on April 4, 2007, the Ministry therefore decided to confirm its refusal to approve the appointments. [16]
On February 5, 2011, the two Buddhist masters notified and filed new appeals against this decision, substantially re-proposing the issues already raised previously. It is also pointed out, however, that the failure to regulate the institution of marriage in the April 2007 understanding would not be relevant since, besides not having yet been approved by law, it is not an obstacle to the continuation of the specificity of the traditions of the Fudenji community: specificities not even taken into consideration by the proceeding Authority, despite the fact that they were documented when requesting the recognition of legal personality, defined by the Presidential Decree of 1999.
Of identical content, two decisions of May 5, 2011 [17] of the Regional Administrative Court of Parma annulled the first rejection decrees, referring the decision on those of December 21, 2010 to the Regional Administrative Court of Lazio, seat of Rome, considered jurisdictionally competent. [18] The central administration's evaluation is based on a discretionary assessment that is anchored, on the one hand, to ascertaining the reliability, seriousness and morality of the person holding the confessional office [19] and, on the other, to the verification of the existence of a qualitatively and quantitatively consistent community of believers. [20] Reason why there is no reason to delimit the territorial scope of the ministerial decree to one or more provinces, since it is a measure constituting a status, with effects extended to the entire nation. [21] And so it was that, in the sudden succession of administrative acts and judicial appeals, the Regional Administrative Court of Lazio entered the scene, marking its presence with the decisions of May 21 and 30, 2012 [22]: decisions distinguishable only by the name of the two appellants, being the contents exactly the same.
It is emphasized here that the refusal to approve the appointments relies primarily on what was established by an understanding, the one signed by the UBI on April 4, 2007, not yet approved by law. And it is also necessary to recall the exact content of Article 8 (c. 3) of the Constitution, which, on this point, differs from Article 7 (c. 2) of the Constitution, which governs relations between the State and the Catholic Church: here are the Lateran Pacts dominating the scene; there, instead, the relations between the State and the confessions other than the Catholic Church are not governed by understandings (at least not directly), but by law on the basis of understandings. The assumption made by the Ministry of the Interior in the appealed ruling - namely that the approval of the Buddhist masters’ appointments would not produce legal effects because of the 2007 understanding with the UBI - is therefore legally devoid of merit. The rejection decree is thus annulled and the Central Administration has been obliged to go back on its positions, taking this jurisprudential orientation into account. [23]
Thus, more than three years after the request and after another - the umpteenth - preliminary investigation, the government legally recognized the role of Buddhist ministers, issuing (January 4, 2013) two decrees approving the appointments, notified to the interested parties on January 17, 2013. Matter closed, one would say to the Dharma masters, who can thus breathe a sigh of relief. But, extending to Buddhists the adage ordinarily in vogue among Christians, one must never forget that the devil can always get his tail in. Only that the world now seems to be able to do without the devil: perhaps because he is so tired that he leaves everything to men, who often know better than he does. The events that characterized the period immediately following the adoption of the Ministry of the Interior's enabling act openly demonstrate this.
3. The entry into force of Law 245/2012 approving the understanding with the UB
Coincidence is that on the day the notification of the decree of approval of the appointments was notified, Law 245 of December 31, 2012 was published in the Official Gazette. A law that, approved on the basis of the understanding with the UBI of April 2007, far from favoring the legal position of the two religious, it ruinously complicates it: after the fifteen canonical days of the vacatio legis, its entry into force (February 1, 2013) in fact causes the cessation of the effects of the aforementioned ministerial measures of January 4, 2013.
But let's proceed in order.
Invested by the legal dilemma caused by the conflicting coexistence (this is how it appears to the administrative bodies, at least) between the ministerial decree approving the appointments, made on the basis of the legislation on admitted faiths, and Law No 245/2012, which makes no provision for marriage, the civil registrar of the Municipality of Salsomaggiore Terme asked a question to the Home Office. The Central Directorate of Religious Affairs inclines towards the loss of effectiveness of the decrees approving the appointments of the two Dharma Masters.
The position of the top administrative body took on clearer contours in the second half of February 2013, when the Ministry sent an information note to all the Prefectures, specifying that:
on December 31, 2012, the laws relating to the following two religious denominations other than Catholic were approved: Italian Buddhist Union and Italian Hinduist Union Sanatana Dharma Samgha. Therefore, with the entry into force of these laws, the effects of Law 1159 of June 24, 1929 cease to apply to these religious denominations. In particular, the effects of ministerial decrees approving the appointment of ministers of religion cease, since - from the date of the entry into force of the aforementioned laws - the recognition of the civil effects of marriages celebrated before ministers of religion derives from the laws of understanding in question that regulate the procedure. The case of ministers of religion belonging to the Sanatana Dharma Samgha Hinduist Union falls within this specified provision. Otherwise, indeed, it is noted that the law of understanding of the Italian Buddhist Union does not contain any provisions concerning the recognition of the civil effects of marriages celebrated by ministers of religion belonging to it. [24]
In short, since the agreement with the UBI approved by law in December 2012 does not contain provisions on religious marriage, the two Dharma masters will not be able to celebrate wedding rites that have civil effects. It should be noted here that such a solution is determined "in compliance with a previous ruling", [25] namely, the content of the aforementioned rulings of the Lazio Regional Administrative Court of May 21 and 30, 2012. [26]
4. The approval of the appointment of Fudenji ministers vs. the approval of the understanding with UBI
The Ministry's reaction had in fact already been outlined by the rulings of the administrative court, in which it was pointed out that if in the future, notwithstanding the coming into force of the law approving the understanding of April 2007, the validity of the ministerial decrees were confirmed, an unduly unequal legal condition would be determined: a condition generated by the disparate coexistence of ministers qualified to celebrate marriages with civil effects and ministers, of the same faith, who were not qualified. To remedy this situation, the Lazio Regional Administrative Court formulates a hypothesis according to which, when the law approving the understanding with the UBI comes into force, the ministerial decree approving the appointments must be applied to the "institutes of the withdrawal of the administrative act or of its revocation or of the provision for the cessation of its effects". [27] Which is then the position taken in concrete terms by the Ministry of the Interior in the aforementioned informative note, connoted among other things by an uncertain legal classification: indeed, it cannot be understood whether with this note the Administration wanted to proceed to the revocation of the decree of approval of the appointments i.e. to its withdrawal or to the cessation of its effects.
On this point, it must be remembered that the decrees approving appointments are not affected by original illegitimacy, nor by supervening illegitimacy. Instead, they are lawful measures, from which, however, a conflict arises with legislative provisions subsequent to the ministerial determination. A conflict that, while manifest on a formal level, is reduced on a substantive level, justifying, where appropriate, the validity of the decrees in question, which are subject to the tempus regit actum rule.
By the time Law 245/2012 came into force, the effects of the ministerial decrees approving the appointments had already been acquired by the two Dharma Masters, becoming insensitive to acts of revocation that were not adequately justified. Both the general rules governing the succession of laws in time and the principle tempus regit actum [28] attest that "the legitimacy of administrative measures must be assessed in light of the regulatory framework in force at the time of their adoption. The administration may legitimately revoke a measure, but only in cases where "reasons of public interest have arisen and due to a change in the factual situation or a new assessment of the original public interest". [29] Applied to the case at hand, this means that the Ministry may also decide to revoke the appointment decrees, but only if they are affected by flaws of merit: because, for example, they have become inappropriate with respect to the protection of the public interest that those decrees were intended to satisfy at the time of their issuance; or because they have been declared unsuitable following a subsequent assessment of the interests involved. Conditions, these, that do not appear to be configured in the legal cases concerning the ministers of religion of the Fudenji Institute.
It should also be recalled that the ordinary legislator can, within certain limits, escape the principle of non-retroactivity of the law, but the interpreter cannot. As a general rule of interpretation, this principle is binding, unless the provision, in its retroactive interpretation, is "favorable" to all the interests involved in the situation to be regulated. [30] The same applies to the "repeal of the legislation on which the administrative act is based", which does not "adversely affect the fate of acts adopted in accordance with the legislative discipline ratione temporis in force". [31] Exceptions are always possible. But these must be sanctioned by an express retroactivity clause, [32] which is not the case here. Law 245/2012, in fact, does not contain any provisions extending the relevant discipline to cases prior to its entry into force. [33]
5. The effectiveness of decrees approving the appointments of ministers of religion in the light of the law pursuant to Article 8 (c. 3) of the Constitution
All this would lead to support the validity of the aforementioned decrees approving the appointments, which can thus be declared legitimate, valid and effective. However, similarly to almost all the legislative provisions pursuant to Article 8 (c. 3) of the Italian Constitution adopted by the Italian Parliament to date, [34] Law 245/2012 declares that after its entry into force, the legislation on admitted faiths - on the basis of which the decrees approving the appointments had been issued - "ceases to be effective and applicable to the UBI, the bodies it represents and those who are part of it". [35] Under the legal profile, we are thus faced with a case of the supervening of a law that not only prohibits for the future acts that previously "were lawful," but also communicates the inefficacy of previously accomplished administrative measures.
In other words, it is a decree approving appointments that, following its issuance and the entry into force of Law 245/2012, finds itself without a regulatory basis. [36] This should have been a cause for concern for the UBI, prompting the governing bodies to act accordingly: in the wake of the aforementioned judgements of the Lazio Regional Administrative Court, they should have asked the government for a partial renegotiation of the 2007 understanding, before it was passed into law. An amendment that would provide for the civil relevance of marriages celebrated by the ministers of UBI member organizations, or at least those officiated by Dharma masters of the Fudenji Institute, which had an interest in that discipline. Also because, on the basis of the aforementioned standardization of the content of the understandings, the provisions on marriage are provided for in all the other laws under Article 8 (c. 3) of the Constitution approved in our legal system to date, [37] with the exception of the one concerning the understanding with the UBI - precisely - of April 2007.
The inert attitude of the UBl may perhaps have been determined by the fear of a fatal postponement of deadlines, which the reopening of negotiations could have caused on the approval process of the understanding. In fact, it must be remembered that, first stipulated back in 2000 and re-signed in April 2007, at the time the Lazio Regional Administrative Court was pronouncing its verdict, the UBI understanding was enjoying a sudden acceleration in the approval process; a sudden change of gear impressed on the legislative process by an unprecedented parliamentary initiative, instead of a governmental one as per previous practice. [38] The request for renegotiation of the understanding would therefore have appeared incompatible with the desire to approve it.
Nevertheless, these considerations should not have prevented those directly concerned, i.e. the Dharma masters of the Fudenji Institute, from running for cover, urging the governing bodies of the UBI to take action to avoid a conflict that, given the guidelines of the administrative judge and the unexpected parliamentary sortie, was inevitably emerging between the decrees approving their appointments and Law 245/2012 being finalized. Relying on Articles 14 and 15 of UBI's Statute, this could have at least reduced the risk of finding oneself at an uncertain crossroads, ineluctably defined by two solutions, both of which are costly for the Institute in question. On the one hand, the choice to renegotiate the contents of the understanding with the UBI, making it compatible with the needs of the Fudenji Institute: a choice that, considering the normative history in the implementation of the conventional provision of art. 8 (c. 3) Const. implies exhausting procedural times, required both for the modification of the understanding and for its approval. On the other hand, the request for "voluntary withdrawal" (art. 9, UBI Statute), i.e. the loss by the Fudenji community of its status as an associate member of the UBI: so that, having overcome the obstacle of the provisions of Law 245/2012, the Administration of the Interior may possibly see fit to adopt a determination with identical content to the approval decree of January 4, 2013, although intended to take effect in a different and later time frame. [39] This solution, however, would entail the loss of the benefits deriving from the agreement and subjection to the provisions of the Fascist law on admitted faiths. Unless the Fudenji Institute decides to autonomously request the stipulation of an understanding pursuant to Article 8 (c. 3) of the Constitution, as for example envisaged by the Buddhist organization Soka Gakkai (an organization recognized as a religious organization by the Presidential Decree of November 20, 2000 [40]), whose negotiations with the Italian government date back to April 18, 2000! [41]
6. The law ex art. 8 (c. 3) Const. and the understanding with the UBI. Formal identity vs. substantive conformity
It should also be recalled that, with the aforementioned note, the Ministry of the Interior declares that the effects of the decree approving the appointments of Dharma teachers have ceased in compliance with a previous judgment, as defined by the judgments of the Regional Administrative Court of Lazio in May 2012: in which, beyond the issues strictly related to the case in question, the court does not skimp on considerations of broader and more general scope, engaging part of its guidance on issues related to the role and function that the agreement must assume in our system.
In these judgments, the Lazio Regional Administrative Court declares in fact that, according to the constitutional precepts, the pact arrangement represents the instrument "most suitable for pursuing the result of the best coordination between the State system and the confessions concerned". The agreement would also have the effect of "univocally binding" the parties and, possibly, the national legislature, should the latter decide to approve it by law: only the contents of the agreement signed by the government and the confession concerned can "receive legislative status". [42] It should be added that, considering the provisions of Article 8 (c. 3) of the Constitution, "no (unilateral) amendments may be made to the agreed discipline through legislation". [43]
Well then, although irreproachable on a formal level, when applied to the case at hand the position of the administrative judge is not free from contradictions, especially when compared with the provisions of the Constitutional Charter. It is true that Law 245/2012 states that its provisions replace "to all effects, with respect to the UBI and the bodies it represents, the aforementioned legislation on admitted faiths". [44] And it is equally manifest that this legislation does not include the regulation of marriage. But neither that statement nor this omission necessarily sanctions an exclusion.
Law No. 245/2012 does not exclude, at least not explicitly, that certain centers adhering to the UBI may celebrate the marriage. The question that therefore arises is the following: since this is a matter that is not regulated by the 2007 understanding, is it possible to consider the previous law in force, which would thus be repealed only with regard to the matters regulated by the understanding? The answer arises rather spontaneously: this would probably be the case if a law on religious freedom had been passed. A law that is still absent in the Italian legal system today, despite the pressure exerted by constitutional dictates, starting with those contained in the provisions of Articles 8 (c. 1), 19 and 20 of the Constitution, which remain substantially inapplicable on this point. [45]
Nonetheless, even with unchanged legislation, in addition to the dutiful emphasis underlying the formal contrast between Law 245/2012 and the decrees approving the appointments, one must also try to avoid falling into the perverse trap of summum ius summa iniuria. That is, it is necessary to avoid that, in the wake of a formalistic frenzy, one ends up legitimizing an interpretation that substantially violates constitutional principles. This is likely to happen when the concrete circumstances governed by the law pursuant to Article 8 (c. 3) of the Constitution and, above all, the purposes to which it is supposed to tend are not taken into serious consideration. If, on the contrary, sufficient attention were paid to these elements, the issues raised by the request of the ministers of religion of the Fudenji community could be examined by means of logically and legally more suitable interpretative tools, taking on constitutionally clearer and more defined contours. In short, in light of these considerations, what appears doubtful is the actual constitutional tightness of the formally discounted interpretation given to the case commented on here.
7. The law approving the agreement with the UBI and Article 20 Constitution
The doubt is justified first of all by reference to Article 20 of the Constitution, which serves precisely to exclude particular legislative limitations on an association or institution with the purpose of religion or worship, insofar as these limitations are contrary to the rules on freedom of belief. Starting with those contained in Article 19 of the Constitution, which must be interpreted in conjunction with the provisions of Articles 2, 3 and 8 of the Constitution. [46] In this sense, ministers of religion may be considered as subjects whose function participates in the concrete exercise of the equal freedom and organizational-institutional autonomy of a religion, while at the same time conferring on individual believers the possibility of exercising their personality, in conditions of formal and substantial equality. Now, with the law approving the understanding with the UBI, special limitations are in fact imposed on the Fudenji community: which, in itself, may constitute a limitation on the freedom and equality of its promoters, participants or beneficiaries. [47] All the more so in matrimonial matters, which often asserts itself as one of the areas most closely connected to the spiritual personality of those being married. [48]
It could be argued, however, that the understanding is the basis of the constitutional legitimacy of a law concerning it, its indefectible and unalterable presupposition. This is why the provisions approved under Article 8 (c. 3) Const. assume the rank of a reinforced law. A law that, for these reasons, can compete with other legislative provisions, including those subject to Article 20 of the Constitution. This means that, where appropriate, the law under Article 8 (c. 3) of the Constitution may legitimize restrictions on institutions or associations with religious and worship aims, provided they are sanctioned by an agreement, duly stipulated and approved by law. These assertions, however, are in contrast with a constitutionally oriented interpretation in the light not only of Article 20 of the Constitution, but also and above all of Article 8 of the Constitution, which, through the conventional instrument (referred to in Paragraph 3), tends to increase the guarantees for confessions, and not diminish them. And this in order to affirm the equal freedom of confessional groups, moreover in a sector, the matrimonial one, always contemplated both by Law No. 1159/1929 and by all the understandings still in force, excluding, as mentioned, the one stipulated by the UBI in April 2007.
8. What is the purpose of the decree of approval under Article 3 of Law 1159/1929?
To these arguments, however, one could reply that, as far as the equal freedom of confessions is concerned, the non-approval of the appointment by the Administration does not determine any impediment: the minister of religion may still freely exercise his ministry, by virtue of the powers conferred by the religion to which he belongs, including that of celebrating marriages. The only limitation would be determined by the impossibility of attributing civil effects to these celebrations. Which is then the orientation taken by the Council of State in a well-known opinion of 2009, [49] promptly referred to by the Parma TAR and the Lazio TAR in the aforementioned rulings of 2012. [50] An orientation that, like those referred to above, nonetheless produces unduly overreaching effects, especially if connected with the case under examination.
Here, in fact, the refusal is justified not so much because the recognition of the civil effects of marriages celebrated by Buddhist ministers is in conflict with Law 245/2012 or contrary to the Constitution. [51] The refusal is justified by the fact that this recognition would not be functional for the free exercise of the pastoral ministry. A consideration that, as has been rightly stated, inevitably pushes the Administration "onto the slippery slope of the internal activity of religious groups", resulting in a "delicate assessment of the actual relevance of the institution of marriage within" the concerned denomination. [52] With all that this may entail in terms of the secularity of the State, of which the principle of "distinction of the distinct orders" [53] is an integral part: which, rejecting "any reciprocal interference" [54], forbids State administrators to make an autonomous - arbitrary - assessment of the importance that the recognition of the civil effects of religious marriage may have for any denomination.
With specific reference to the case in question, deeming the decrees approving the appointments to be ineffective may, among other things, cause potential discrimination against the Fudenji Institute, with respect to all other religious associations or institutions, including those that adhere to confessions that do not have an agreement. P.R. of 1999. [55]
9. Conclusions
It should be noted that the disadvantageous, and potentially discriminatory, effect paradoxically derives from one of the few peculiar elements that, characterizing the UBI understanding, distinguishes it from the other agreements signed to date by the Italian State. In fact, considering the decades-long practice of implementing the conventional provision of art. 8 (c. 3) of the Constitution, the nderstanding in question differs from the others not so much for what it affirms, but rather for what it does not affirm: for what it lacks, for its absence. That is, for the absence of provisions governing the recognition of the civil effects of marriage celebrated in a religious form.
The reasons for this omission are linked, in principle, to the Buddhist specificity whereby, in relation to conjugal union, interest generally focuses on the relationship, in an indirect way, moreover: through the precept that, with a strong call to fidelity, invites one not to fall prey to the passions, avoiding improper sexual relations. This is why Buddhism, even though it provides for some kind of blessing formula and even though it considers marriage a celebration not only of the bride and groom but also of the community, does not usually have its own form of celebration. [56] Usually.
In fact, it is inconceivable that among the 44 affiliated to the UBI, there are not some groups that, with equal and opposite intensity, celebrate marriage, according to rules and forms established by them. And this is the case of the Fudenji community led, religiously speaking, by the Dharma masters mentioned earlier. This circumstance stands out even more with reference to the draft law of June 2000 for the regulation of relations between the State and the UBI, [57] the regulatory framework of which was transfused into the Understanding of April 4, 2007. A framework that, by the current government's own admission, was "elaborated, as far as possible, according to the model of agreements already concluded that proved adaptable to the needs of other confessions". [58] This means that the agreement in question was drafted not so much (or not only) on the basis of the needs of the stipulating confession, but in relation to an ideal-type agreement, built on the basis of the needs of the "other confessions".
This confirms the fact that understandings no longer serve to protect the specificities of confessional identities, but only to extend the discipline of a (para)common law, [59] that has not, however, become general. [60] Nor will it ever become so. [61] Thus, for denominations other than Catholic to depart from the standardized content of the understandings can become quite dangerous. And the example is provided by the questions concerning the Fudenji Institute, which is now caught between two fires: to continue to be part of the UBI, renouncing the civil relevance of marriages celebrated by its religious members; or to leave the UBI voluntarily, submitting itself once again to the legislation on admitted faiths.
One can then understand the importance underlying the case of the two Dharma masters. It has the merit of accentuating the flaws caused by the difficult coexistence between the conventional provision of Article 8 (c. 3) of the Constitution and the common legislation of Fascist memory. A legislation informed by authoritarian 'ecclesiastical police' assumptions, aimed at obtaining guarantees of the quality of the non-Catholic minister of religion, [62] whose activity the State wants to know and monitor. [63] This in turn leads to accentuate the failures caused by the absence of a constitutional model of reference: of a law on religious freedom [64] attesting to a coherent corpus of norms to which to refer in order to verify the legitimacy and appropriateness of certain derogations to the common-general law, according to what is established in (and by) the Republican Constitution. [65]
NOTES
[1] ⬆︎ That is, "the equal freedom of the confessions to organise themselves and to operate represents the necessary projection on the community level"; Corte cost., sent. 16 July 2002, no. 346, in "Giur. cost.", 2002, p. 2615, with editorial note by P. Spirito (p. 2621) and note to the sentence by G. Guzzetta, Non è l'eguale libertà a legitimare l'accesso ai contributi regionali delle confessioni senza intesa, pp. 2624 ff. On this point A. Albisetti, Il diritto ecclesiastico nella giurisprudenza della Corte costituzionale, Milano, Giuffrè, 2010, 4 ed., pp. 118 ff.
[2] ⬆︎ IIn this sense, the protection of the right to difference, in addition to promoting the development of the personality (Art. 2 Const.), is legitimised by reference to Art. 3, c. 2, Const, and is aimed at 'removing the obstacles of a social order that, by limiting de facto the freedom and equality of citizens, prevent the full development of the human person in the area concerning religious life'; S. Lariccia, Intese con le confessioni religiose diverse dalla cattolica, in Dizionario di diritto pubblico, directed by S. Cassese, Milan, Giuffrè, 2006, vol. IV, pp. 3225 ff. On this point already P. Rescigno, Persona e comunità. Saggi di diritto privato, Padova, CEDAM, 1987, whose investigation into the role of the Churches in a pluralist society 'naturally moves along the track of Article 2 of the Constitution' (p. 21), which urges the Church to 'take into account the role of the Church in a pluralist society' (p. 21). (p. 21), which exhorts to resist the temptation of the confessions "to use the State to secure a position of privilege" (p. 49): it is necessary to avoid a religious community taking "advantage of its position to induce the State to mortify and prevent the profession of religious faith" of its members and "of members of other communities" (p. 50). See also S. Benhabib, The Rights of Others. Aliens, Residents and Citizens, Cambridge, Cambridge University Press, 2004, translated by S. De Petris, I diritti degli altri. Stranieri, residenti, cittadini, Milan, Cortina, 2006, p. 53; S. Rodotà, La vita e le regole. Tra diritto e non diritto, Milan, Feltrinelli, 2006, p. 25 e p. 32; M.C. Nussbaum, Giustizia sociale e dignità umana. Da individui a persone, ranslated by E. Greblo (con Introduction by C. Saraceno), Bologna, Il Mulino, 2002; M.C. Nussbaum, Women and Human Development: The Capabilities Approach, Cambridge, Cambridge University Press, 2000, ranslated by W. Maffezzoni, Diventare persone. Donne e universalità dei diritti, Bologna, Il Mulino, 2001.
[3] ⬆︎ Thus, "the peculiarities that, in the constitutional perspective on sources, characterise those of ecclesiastical law do not translate into singular or privileged connotations. Rather, they can easily be traced back to a foundation of common constitutional law, the root of which can be found in the recognition made by Article 2 of the Constitution in favour of all forms of autonomy, in function of the development of man's personality and the pursuit of his inviolable rights"; S. Berlingò, voce Fonti del diritto ecclesiastico, in "Digesto delle discipline pubblicistiche", VI, 1994, p. 455. On this point see also R. Coppola, Le intese con le minoranze religiose in Italia, in «Coscienza e Libertà», 1990, nn. 16-16 A, p. 87.
[4] P. Bellini, Il diritto di essere se stessi. Discorrendo dell’idea di laicità, Torino, Giappichelli, 2007, p. 172. Sul punto cfr. V. Parlato, Legislazione statuale in materia religiosa e normazione pattizia, in «Il Diritto ecclesiastico», 1983, pp. 586 ff., for whom 'only in a secular and pluralist direction ... can religious freedom and equality, two fundamental needs of the human person, be better safeguarded in a secular State ... that is, a State where the activity of government is at the service of the human person, also and above all for the ideals that have their root and foundation in the spirituality and dignity of man'. Purposes that, according to the author, can be achieved through "special legislation for the religious phenomenon, just as ad hoc legislation is needed for other important sectors of public life" (p. 597). See also C. Mirabelli, Osservazioni conclusive, in Le intese tra Stato e confessioni religiose. Problemi e prospettive, Milano, Giuffrè, 1978, pp. 160 ff.
[5] N. Colaianni, lemma Intese (diritto ecclesiastico), in «Enc. dir.», Agg. V, 2001, p. 709.
[6] A. S. Mancuso, L’attuazione dell’art. 8.3 della Costituzione. Un bilancio dei risultati raggiunti e alcune osservazioni critiche, in Rivista telematica (www.statoechiese.it), febbraio 2010, p. 16.
[7] R. Botta, La condizione degli appartenenti a gruppi religiosi di più recente insediamento in Italia, in «Il Diritto ecclesiastico», 2000, I, pp. 370-373.
[8] M.C. Folliero, Libertà religiosa e società multiculturali: la risposta italiana, in «Diritto e Religioni», 2009, n. 1, p. 429.
[9] This was noted by F. Pizzetti, who, as President of the Commission for Agreements, pointed out that in the case of the negotiations involving Jehovah's Witnesses, it was precisely this religion "that had renounced emphasising its own peculiarities"; F. Pizzetti, Le intese con le confessioni religiose, con particolare riferimento all’esperienza, come Presidente per la Commissione per le intese, delle trattative con i Buddhisti ed i Testimoni di Geova, in Dall’accordo del 1984 al disegno di legge sulla libertà religiosa. Un quindicennio di politica e legislazione ecclesiastica, reperibile in Presidenza del Consiglio dei Ministri, http://www.governo.it/Presidenza/USRI/confessioni/pubblicazione_indice.html (last accessed 12 may 2013), p. 317.
[10] ⬆︎ The result is an imperfect pluralism that is affirmed by means of a "subdivision of Churches and religions into brackets of decreasing importance: 1. the Catholic Church, guaranteed by the Concordat; 2. the Churches with an understanding, in fact admitted to many of the privileges gradually recognised as belonging to the Catholic Church; 3. the Churches and religions still subject to the Fascist legislation of '29-'30, in turn divided into two categories: a. confessions recognised on the basis and with the limits of that legislation; b. confessions not yet recognised"; G. Bouchard, Concordato e intese, ovvero un pluralismo imperfetto, in these Quaderni, n. 1, 2004, pp. 70-71. On this point, see also G.B. Varnier, La prospettiva pattizia, in Principio pattizio e realtà religiose minoritarie, a cura di V. Parlato, G.B. Varnier, Torino, Giappichelli, 1995, pp. 1 ff., spec. pp. 8-13.
This was a risk that some doctrine had feared years ago. See for all E. Vitali, A proposito delle intese: crisi o sviluppo?, in these Quaderni, 1997, n. 1, p. 94; S. Ferrari, Pagine introduttive: appunti su riforma incompiuta, in these Quaderni, n. 1, 1993, pp. 3 ff.; F. Onida, Appunti per una riflessione in tema di attuazione del quadro costituzionale in materia religiosa (a proposito di libertà ed eguaglianza), in «Il Diritto ecclesiastico», 1990, I, pp. 423 ff.; V. Tozzi, I gruppi religiosi e i rapporti con lo Stato, in «Il Diritto ecclesiastico», 1994, I, pp. 223 ff. 411
[11] ⬆︎ On this point always valid T. Mauro, Considerazioni sulla posizione dei ministri di culto acattolici nel diritto vigente, in Studi in onore di Vincenzo del Giudice, Milan, Giuffrè, 1953, pp. 101 ff. See also A. Licastro, I ministri di culto nell’ordinamento giuridico italiano, Milan, Giuffrè, 2005, pp. 475 ff.
[12] ⬆︎ Presidential Decree of 5 July 1999, published in the Official Gazette (no. 224) of 23 September 1999.
[13] ⬆︎ Article 7, Articles of Association of the UBI; Article 11, Law No. 245/2012, cited above.
[14] ⬆︎ Pursuant to Article 10-bis of Law No. 241 of 7 August 1990, according to which "persons in respect of whom the final measure is intended to produce direct effects" have the right "to submit written pleadings and documents, which the administration is obliged to assess where they are relevant to the subject-matter of the proceedings".
[15] ⬆︎ Parma Regional Administrative Court, ordd. of 14 September 2010, nos. 163 and 164.
[16] ⬆︎ On the normative value of the agreement not yet approved N. Colaianni, voce Intese (diritto ecclesiastico), cit., p. 709, as well as Council of State, sentence 18 November 2011, no. 6083.
[17] ⬆︎ Parma Regional Administrative Court, sentences of 5 May 2011, nos. 126 and 127.
[18] ⬆︎ In the opinion of the administrative judge in Parma, governmental approval under Article 3 of Law 1159/1929 is not necessary for the performance of acts of a cult other than the Catholic one; acts that fall within the sphere of autonomy of the corresponding religious confession. Ministerial approval is instead required to the extent that the Italian legal system recognises legal effects to those acts. That is to say, when the non-Catholic minister of religion is granted exemptions, faculties and powers of a public nature, which are not vested in the general public. This, without prejudice to the constitutionally guaranteed freedoms administered to such denominations, leads to the justification of state control, exercisable precisely with the ministerial measure of "approval": which, far from sacrificing the religious activity of the denominational group concerned, rather expands the sphere of the prerogatives of the appointed ministers, linking the acts performed in the exercise of their ministry to civil effects. On this point already V. Onida, lemma Ministri di culto, in «Enc. giur.», vol. 20, Roma, 1990, pp. 2 ss.. See also F. Pentroncelli Hübler, Ancora sulla posizione dei ministri dei culti acattolici nell’ordinamento italiano, in «Archivio giuridico», 1972, pp. 97 ff.
[19] ⬆︎ On this point A. Bettetini, Alla ricerca del “ministro di culto”. Presente e futuro di una qualifica nella società multireligiosa, in questi Quaderni, 2000, n. 1, pp. 249 ff., spec. p. 257, footnote 22., who states that this type of investigation is 'not only legitimate, but necessary when, as in the case in point, the legal qualification is followed by the conferral of specific powers of a public nature' (p. 257). The author, however, does not downplay the fact that, although legitimate and necessary, this 'investigation poses certain problems in the light of Article 22 of Law no. 675 of 31 December 1996 on the protection of persons and other subjects with regard to the processing of personal data'. If, in fact, the approval referred to in Article 3 of Law 1159/1929 can undoubtedly be included among the 'express provisions of law' authorising the processing by a public body of 'personal data revealing racial and ethnic origin, religious beliefs ... membership of parties, trade unions, associations or organisations of a religious nature', it would be more difficult to 'include in this hypothesis investigations aimed at verifying whether a person can be qualified in general as a minister of religion, for purposes other than those provided for by the provision of the law on admitted cults now referred to, since there are no authorising rules in this regard'. It is therefore considered 'necessary in these cases to obtain the written consent of the person concerned, as well as the authorisation of the Garante pursuant to paragraph 1 of the same Article 22. Which, as can easily be guessed, complicates searches not a little and in any case prolongs them in time'.
[20] ⬆︎ On this point, see Council of State in sede consultiva, Sec. I, 23 September/22 October 2009, no. 2758-6357.
[21] ⬆︎ In fact, the territorial jurisdiction to hear and determine disputes relating to such acts lies with the Regional Administrative Court of Lazio, Rome office, since Article 13 (c. 1) of the new Code of Administrative Procedure ("The regional administrative court is in any case peremptorily competent for disputes concerning measures, acts, agreements or conduct of public administrations whose direct effects are limited to the territorial scope of the region where the court has its seat") and, under the previous regime, Article 3 (c. 2) of Law no. 1034 of 1971 ("For acts issued by central bodies of the State or by the State's administrative bodies, the regional administrative court has the jurisdiction to hear and determine disputes relating to the acts of public administrations whose direct effects are limited to the territorial scope of the region where the court has its seat"). No. 1034 of 1971 ("For acts issued by central bodies of the State or public bodies having a supra-regional character, whose effectiveness is territorially limited to the circumscription of the regional administrative court ... the regional administrative court itself has jurisdiction"); as has been repeatedly warned by case law for acts concerning the recognition and/or denial of a person's status, if and insofar as they originate from a central State body and their effectiveness is not limited to a given territorial area (on this point see, among others, Council of State, Sez. VI, sentence 24 April 2009 no. 2561, for a case of refusal of Italian citizenship). Now, the jurisprudence has been called upon to clarify whether the new regime of mandatory territorial jurisdiction, including the ex officio detectability of the lack of jurisdiction, applies only to judgments brought after the entry into force of the new Code of Administrative Procedure - approved by Legislative Decree no. 104 of 2 July 2010 - or is also applicable to judgments in progress as of 16 September 2010, having finally pronounced itself in favour of the former solution (see Council of State, Ad. plen., ord. 7 March 2011, no. 1). Which, as far as the present case is concerned, means that the Parma Regional Administrative Court must declare that it has no jurisdiction, limited to the appeal against the refusal measure adopted on 21 December 2010 and challenged in the deed of "additional grounds". It must also state that the Regional Administrative Court of Lazio, Rome seat, has jurisdiction to decide the dispute, pursuant to Article 15(1) and Article 16(2) of the Code of Administrative Procedure. While the lack of jurisdiction regarding the appeal against the ministerial rejection order of 30 April 2010 cannot be taken into consideration ex officio, since it took place before the entry into force of the Code of Administrative Procedure.
[22] ⬆︎ Lazio Regional Administrative Court, sentence no. 4544 of 21 May 2012 and sentence no. 4889 of 30 May 2012.
[23] ⬆︎ Lazio Regional Administrative Court, sentt. 4544/2012 and 4889/2012, cit.
[24] ⬆︎ The information note is published on the website of the Prefecture UTG of Avellino under the heading "Circular (Prot. 3672/Area IV) concerning the Communication on Religious Confessions that have signed agreements pursuant to Article 8, paragraph 3 of the Constitution, approved by law.
[25] ⬆︎ Ibid.
[26] ⬆︎ However, it should be recalled that, at the time of writing, the Ministry has not issued a communication to the interested parties (art. 7 of Law no. 241/1990) concerning the commencement of the procedure for the withdrawal or revocation or termination of the effects of the decree of 4 January 2013, having instead limited itself to sending the aforementioned note to all the Italian Prefectures.
[27] ⬆︎ Lazio Regional Administrative Court, sentt. 4544/2012 and 4889/2012, cit.
[28] ⬆︎ Hence, each act must be assessed according to the law in force at the time of its completion. On this point among others R. Caponi, Tempus regit processum. Un appunto sull'efficacia delle norme proceduali nel tempo, in "Rivista di diritto processuale", 2006, pp. 449 ff., and the bibliography cited therein.
[29] ⬆︎ This is what is stated in Article 21-quinquies of Law No. 241 of 7 August 1990, as amended by Law No. 241 of 11 February 2005 on general rules on administrative action.
[30] ⬆︎ R. Quadri, Dell’applicazione della legge in generale, in Commentario del codice civile, edited by A. Scialoja, G. Branca, Bologna-Roma, Zanichelli-Il Foro italiano, 1974, pp. 103 ff.
[31] ⬆︎ Council of State, sentence no. 1632 of 22 March 2012. On this point see also TAR Abruzzo, seat of Pescara, sentence 18 May 2011, no. 283.
[32] ⬆︎ Council of State, sentence 29 September 2010, no. 7187; Council of State, sentence 3 September 2009, no. 5195.
[33] ⬆︎ Art. 24, Law 245/2012, cit.
[34] ⬆︎ The only exception is Law no. 101 of 8 March 1989, approving the agreement entered into on 27 February 1987 by the Union of Italian Jewish Communities.
[35] ⬆︎ Art. 26, c. 1, Law no 245/2012, cit.
[36] ⬆︎ On this point F. Bellomo, Diritto amministrativo. Vol. II. Activities, Padua, CEDAM, 2009, pp. 329 ff.
[37] ⬆︎ Indeed, this discipline is also provided for in the agreement signed (4 April 2007) by Jehovah's Witnesses, but not yet approved by law.
[38] ⬆︎ An initiative that, in turn, had been stimulated by a decision of the Chamber of Deputies' Council for the Rules of Procedure (Resoconto della Giunta per il Regolamento del 28 febbraio 2007, available at www.camera.it, p. 35, col. 1, on which J. Pasquali Cerioli, Il progetto di legge parlamentare di approvazione delle intese con le confessioni diverse dalla cattolica: nuovi orientamenti e interessanti prospettive, in Rivista telematica [www.statoechiese.it], March 2010, pp. 1 ff.). Relying on this new orientation, two senators of the Republic, Lucio Malan (PDL) and Stefano Ceccanti (PD), presented bills for the approval of the agreements stipulated in April 2007, which were immediately followed by the Berlusconi government's bills. Combined with the - otherwise identical - parliamentary-derived bills, the government bills were thus assigned to the Constitutional Affairs Commission in deliberative session, where the dialectical cooperation between government and parliament was relaunched with the appointment of Senators Galan and Ceccanti as rapporteurs. The two politicians thus found themselves accompanying the draft laws reproducing the agreements entered into in April 2007, including the one with the UBI, which was definitively approved at the end of the 16th legislature: the dissolution of the Chambers was formalised with Presidential Decree No. 225 of 22 December 2012, while the approval of the agreement with the UBI was on 11 December 2012; this law was promulgated on 31 December 2012 and published in the Official Journal on 17 January 2013.
[39] ⬆︎ On this point, see Council of State, sentence no. 4498 of 18 September 2008. See also R. Giovagnoli, M. Fratini, Le nuove regole dell’azione amministrativa al vaglio della giurisprudenza. Invalidità e autotutela, Milan, Giuffrè, 2007, tome II, pp. 478 ff.
[40] Reapproved by Presidential Decree of 20 March 2009. The new statute was also registered by the Court of Auditors on 26 May 2009, register no. 6, folio no. 58, in Official Gazette no. 168 of 22 July 2009.
[41] h 2013).
[42] TAR del Lazio, sentt. 4544/2012 and 4889/2012, cit.
[43] Ibid.
[44] Art. 26 (c. 1), Law no. 245/2012, cit.
[45] On this issue the literature is quite extensive. For all see the most recent statements by V. Tozzi, Le confessioni religiose senza intesa non esistono, in Aequitas sive Deus. Studi in onore di Rinaldo Bertolino, Turin, Giappichelli, 2011, pp. 1033 ss.; N. Colaianni, Diritto pubblico delle religioni. Eguaglianze e differenze nello Stato costituzionale, Bologna, Il Mulino, 2012, pp. 153 ff.
[46] G. Macrì, M. Parisi, V. Tozzi, Diritto civile e religioni, Roma-Bari, Laterza, 2013, pp. 72 ff.
[47] F. Finocchiaro, Diritto ecclesiastico, edited by A. Bettetini, G. Lo Castro, Bologna, Zanichelli, 2012, pp. 229 ss.; A. Bettetini, Commento all’art. 20 Cost., in Commentario alla Costituzione, a cura di R. Bifulco, A. Celotto, M. Olivetti, Turin, UTET, 2006, vol. I, pp. 441 ff.; M. Ricca, Art. 20 della Costituzione ed enti religiosi: anamnesi e prognosi di una norma “non inutile”, in Studi in onore di Francesco Finocchiaro, Padua, CEDAM, 2000, pp. 1557 ff.; P. Di Marzio, L’art. 20 della Costituzione. Interpretazione analitica e sistematica, Turin, Giappichelli, 1999, spec. pp. 12 ff. See also S. Fiorentino, Gli enti ecclesiastici e il divieto di discriminazione, in Nozioni di diritto ecclesiastico, a cura di G. Casuscelli, Turin, Giappichelli, 2006, pp. 57 ff.
[48] A. Supiot, Homo juridicus. Essai sur la fonction anthropologique du Droit, Paris, Édition du Seuil, 2005, translated by B. Ximena Rodríguez, Homo juridicus. Saggio sulla funzione antropologica del Diritto, Milano, Mondadori, 2006, pp. 4 ff.; N. Colaianni, I nuovi confine del diritto matrimoniale tra istanze religiose e secolarizzazione, in «Rivista di diritto privato», 2009, n. 4, pp. 10 ff.
[49] Council of State, Sec. I, 23 September 2009, no. 2758.
[50] TAR of Parma, sentt. nos. 126/2011 and 127/2012, cit.; TAR of Lazio, sentt. 4544/2012 and 4889/2012, cit.
[51] In view of its long-standing, and now consolidated, case law, the Constitutional Court has reiterated that, in the absence of agreements, relations between the State and confessions other than the Catholic Church continue to be governed by the rules in force (i.e. the law of 1929 and the 1930 Regulations) "insofar as they do not affect the constitutionally guaranteed freedom of worship"; Constitutional Court, sent. 24 November 1958, no. 59, in «Il Diritto ecclesiastico», 1959, II, pp. 115 ff., with a note by F. Finocchiaro, Note intorno ai ministri di culto acattolici ed ai poteri dell’autorità in relazione alla libertà religiosa, nonché Corte cost. sent. 18 marzo 1957, n. 45, in S. Domianello, Giurisprudenza costituzionale e fattore religioso (1957-1986), Milan, Giuffrè, 1987, pp. 99 ff.
[52] A. Ferrari, Libertà religiosa e nuove presenze confessionali (ortodossi e islamici): tra cieca deregulation e super-specialità, ovvero del difficile spazio per la differenza religiosa, in Rivista telematica (www.statoechiese.it), July 2011, pp. 10-11, note 58.
[53] As defined by the Constitutional Court, sentence no. 334 of 8 October 1996, in "Giur. cost.", 1996, pp. 2919 ff.; a sentence that, with respect to the supreme principle of secularism, is defined as 'textbook'; N. Colaianni, La fine del confessionismo e la laicità dello Stato. Il ruolo della Corte costituzionale e della dottrina, in «Politica del diritto», 2009, n. 1, p. 45.
[54] G. Casuscelli, La rappresentanza e l’intesa, in Islam in Europa / Islam in Italia. Tra diritto e società, edited by A. Ferrari, Bologna, Il Mulino, 2008, p. 309.
[55] On this point it should be noted, in fact, that, as is well known, religious groups other than the Catholic one have two main organisational models at their disposal, the publicist and the private one. The first relies on the legislation on admitted cults: it is a model hinged on the legal personality of moral entities, characterised by strong specialisation and, thanks to constitutionally oriented jurisprudential interpretation, by substantial autonomy for the entities concerned. The second, on the other hand, can be realised with or without the recognition of legal personality, and is devoid of speciality: consequently, it is less protective of the peculiar and specific profiles of the autonomy of the religious formation concerned. And this explains why, as regards the first (publicistic) model, the form of the D.P.R. is still required today, and therefore the deliberation of the Council of Ministers, entrusted to the undersecretary in charge of preparing the agenda. To this must be added that, although formally no longer compulsory (but, so to speak, precautionary), after the "Bassanini reform" even the opinions of the Council of State returned to constitute an essential step in the recognition procedure. On this point see, most recently, A. Ferrari, Libertà religiosa e nuove presenze, cit., pp. 10-11. See also S. Berlingò, Enti ecclesiastici – Enti delle Confessioni religiose, in Enciclopedia giuridica de “Il Sole – 24 Ore”, vol. VI, 2008, pp. 3-5; A.G. Chizzoniti, Il testo unico in materia di documentazione amministrativa. Primi spunti di riflessione per l’ecclesiasticista, in these Quaderni, 2001, n. 1, pp. 495 ff.
[56] On this point, see for all O. Botto, Buddha e il buddhismo, Milan, Mondadori, 1984, pp. 39 ff.; S. Batchelor, Il risveglio dell’occidente, Rome, Ubaldini, 1995, pp. 235 ff.; M. Augé, lemma Religione, in Aa.Vv., Enciclopedia Einaudi, Turin, Einaudi, 1980, tome XI, pp. 893 ff.; A.W. Watts, Buddhism: The Religion of No-Religion, Boston, Tuttle Publishing, 1996, translated by V. Hefti, Buddhismo. La religione della non-religione, Como, Edizioni Red, 1999, p. 97; F.T. Guareschi, Sapienza d’Oriente e d’Occidente. Cristianesimo, Buddhismo, Scienza contemporanea, Rimini, Ed. Il Cerchio, 1998, pp. 55 ff.
[57] On which already S. Angeletti, Brevi note di commento all’Intesa con l’Unione Buddhista Italiana, in «Il Diritto ecclesiastico», 2001, p. 978.
[58] Camera dei Deputati, Relazione al disegno di legge del 25 maggio 2000 sulla base dell’intesa stipulata fra lo Stato e l’Unione Buddhista il 20 marzo 2000, in Atti parlamentari della Camera dei Deputati, 2000, no. 7023, p. 2.
[59] N. Colaianni, Le intese nella società multireligiosa: verso nuove disuguaglianze?, in Rivista telematica (www.statoechiese.it), n. 19 del 2012, p. 6.
[60] That is, a right that, being general, has "as its object classes of possible situations and is therefore susceptible to indefinite application"; V. Crisafulli, voce Fonti del diritto (dir. cost.), in «Enc. dir.», 1968, p. 948. On this point also M. Ricca, Legge e Intesa con le confessioni religiose: sul dualismo tipicità-atipicità nella dinamica delle fonti, Turin, Giappichelli, 1996, spec. pp. 25 ff.; e il sempre valido saggio di F. Carnelutti, Teoria generale del diritto, Rome, Soc. ed. del Foro italiano, 1951, pp. 42 ff.
[61]> E. Vitali, A proposito delle intese: crisi o sviluppo?, in these Quaderni, 1997, n. 1, p. 94; S. Ferrari, Pagine introduttive: appunti su riforma incompiuta, in these Quaderni, 1993, I, pp. 3 ff.; F. Onida, Appunti per una riflessione in tema di attuazione del quadro costituzionale in materia religiosa (a proposito di libertà ed eguaglianza), in «Il Diritto ecclesiastico», 1990, I, pp. 423 ff.; V. Tozzi, I gruppi religiosi e i rapporti con lo Stato, in «Il Diritto ecclesiastico», 1994, I, pp. 223 ff.; G. Bouchard, Concordato e intese, ovvero un pluralismo imperfetto, in these Quaderni, n. 1, 2004, pp. 70-71. On this point also G.B. Varnier, La prospettiva pattizia, in Principio pattizio e realtà religiose minoritarie, edited by V. Parlato, G.B. Varnier, Turin, Giappichelli, 1996, pp. 1 ff., spec. pp. 8-13; S. Bordonali, Verifica e revisione delle intese, ivi, pp. 130 ss., spec. pp. 132-136.
[62] This is clearly attested to in the report of the Guardasigilli of the time, where it states that the government's approval of ministers of religion other than the Catholic one must always be taken into due consideration: since "their influence on the conscience of their faithful is always very important and is also particularly delicate from a political point of view"; cited in V. Del Giudice, Codice delle leggi ecclesiastiche, Milan, Giuffrè, 1952, p. 303.
[63] The State here adopts a typically neo-jurisdictionalist stance, but only in relation to non-Catholic cults, in respect of which it arrogates to itself the right to define religious activities by separating them from non-religious ones, as is clear from T. Mauro, Ministero dell’Interno. Direzione Generale degli Affari di Culto. Appunto per S.E. il Direttore generale. Roma, 1° aprile 1955, in Proposta di riflessione per l’emanazione di una legge generale sulle libertà religiose, edited by V. Tozzi, G. Macrì, M. Parisi, Torino, Giappichelli, 2010, pp. 31-53, spec. pp. 40-43.
[64] As, moreover, the Corte Cost. sent. 27 April 1993, no. 195, in "Il Foro.it", 1994, I, cc. 7 ss. with a note by N. Colaianni, Sul concetto di confessione religiosa. On the various (unsuccessful) parliamentary attempts to introduce a law on religious freedom into our legal system and on the need to approve it, for all see the collective work edited by V. Tozzi, G. Macrì, M. Parisi, Proposta di riflessione per l’emanazione di una legge generale sulle libertà religiose, cit. In the opposite sense M. Canonico, L’idea di una legge generale sulla libertà religiosa: prospettiva pericolosa e di dubbia utilità, in Rivista telematica (www.statoechiese.it), January 2010, spec. pp. 5-7, to which V. Tozzi, Necessità di una legge generale sulle libertà religiose (risposta a Marco Canonico), in ivi, september 2010, pp. 1-23 replies.
[65] As, moreover, the Constitutional Court had hoped from its very first jurisprudential orientations: "in the absence of other norms to be enacted following agreements", relations between the State and the Churches "continue to be regulated by the norms in force, insofar as they do not affect constitutionally guaranteed freedom of worship. And this is without considering that the power of this Court to declare the constitutional illegitimacy of laws cannot find an obstacle in the legislative deficiency that, with regard to given relations, may derive from it; while it is up to the wisdom of the legislator, sensitive to the impulse that naturally comes from the sentences of this Court, to eliminate it in the most expeditious manner possible" (Corte Cost. sent. 24 November 1958, no. 59, in "Giur. cost, as well as in "Il Diritto ecclesiastico", 1959, II, pp. 25 ff, with a note by F. Finocchiaro, Note intorno ai ministri di culti acattolici ed ai poteri delle autorità in relazione alla libertà religiosa). An invitation that the same Constitutional Court had addressed a few months earlier to those "responsible for the legislative function", called here too "to eliminate the lacuna caused by the non-adherence of the regulations in force to the Constitution" (Corte Cost., sent. 19 June 1958, no. 36, in "Giur. cost.) Having become more and more pressing, these invitations of the Court gradually turned into "verbal denunciations", which highlighted "the persistent inertia of the legislator" (Corte cost., sent. 18 October 1995, no. 440, in "Foro it.", 1996, I, cc. 30-37, with a note by N. Colaianni, La bestemmia “ridotta” e il diritto penale laico). It has thus come to the point where the judges of the Constitutional Court have seen themselves forced to intervene directly in the matter with upholding pronouncements due to the failure to amend penal norms that represented "an anachronism that the legislature has not remedied in so many years" (Corte cost, sent. 20 November 2000, no. 508, in "Giur. cost.", 2000, pp. 3965 ff.; on this point see G. Casuscelli, L’evoluzione della giurisprudenza costituzionale in materia di vilipendio della religione, in www. olir. it, May 2005, pp. 1-13). Reason why, "the Republic is ... obliged to unilaterally modify the previous legislation of 1929 and 1930 on "admitted cults" for all those parts that pose as obstacles of a social order": those parts that the Italian State "has the task of removing (art. 3, 2nd paragraph) insofar as, by limiting de facto the freedom and equality of citizens, they prevent the full development of the human person' (G. Peyrot, lemma Confessioni diverse dalla cattolica, in «Digesto delle discipline pubblicistiche», III, 1989, p. 358). It depends on this unilateral law "the completion of the reform started in 1984 with the Villa Madama Agreement and the agreement with the Waldensian Table, and the full inclusion of our legal system among the most modern and advanced ones, and it depends on it whether all the religious Confessions will be able to have the certainty of an equal legal condition involving the various aspects of their organisation and their activities" (C. Cardia, Concordato, intese, laicità dello Stato, in these Quaderni, 2004, n. 1, p. 30). In short, "only a rationalising and reforming intervention of the system of sources will be able to create, at a constitutional level, the "conditions for a new and more efficient taxation", and specify the rules and procedures that govern it, in order to guarantee speed and simplification not so much and not only of government action, as of the process of reversal of the supreme principles of the constitutional order" (G. Casuscelli, Il pluralismo in materia religiosa nell’attuazione della Costituzione ad opera del legislatore repubblicano, in Diritto e religione in Italia. Rapporto nazionale sulla salvaguardia della libertà religiosa in regime di pluralismo confessionale e culturale, edited by S. Domianello, Bologna, Il Mulino, 2012, p. 41).
