In recent decades, the recent resurgence of a theocratic constitutionalism, especially in the Islamic world, which places religion at the heart of the public sphere and of the political discussion , has coincided with the development of a belligerent liberal secularism that views with scepticism any approach to a transcendent reality and seeks to relegate religion to the realm of the private.

For theocratic constitutionalists, every political community has the right to embrace a particular religion, even to the point of considering it as source legal of its own legal order. The political community would thus be an extension of the religious community, and law itself a distillation of religion. If agreement were to adopt this position, the famous Jeffersonian wall of separation between church and state would be no more than a thin curtain on a beach changing room.

For liberal secularists, religion as such does not, and should not, have any substantivity of its own, and the right to religious freedom is rather a mere concretisation of a more general right to individual autonomy in ethical matters. Religion as a cultural or social phenomenon is in no way a generator of public value and must therefore remain completely isolated from the political discussion . As Thomas Nagel states in his latest book, religion is a "temperamental question". Religion can be "your" problem, but never "our" problem. Religious freedom, then, in such a tolerant secular state, would imply only the right to have that temperament and the consequent duty, for others, to put up with it as one puts up with a bad smell from a poorly ventilated room.

The echoes of the recent visit of Benedict XVI in Spain and the presence in our country of the famous Jewish jurist Joseph Weiler, on the occasion of receiving the doctorate honoris causa at the University of Navarra, constitute a good incentive to address the topic of religious freedom, without fear or concealment. And to speak of religious freedom is to speak of religion. It is time, in my opinion, to establish a global paradigm of religious freedom, based on the dignity of the human person, compatible with the various constitutional models and on the basis of a generalised disagreement on religious matters, such as really exists on our planet.

For just as there is no ideal legal system, neither is there a perfect constitutional model to protect religious freedom. Each model, like each legal system, is a product of history, culture, tradition, public consensus and often religion itself. But while each legal system must protect religious freedom from agreement with its own identity, there is no doubt that there is a common crux to all of them, which justifies abstraction.

The paradigm I am going to offer only rejects those constitutional models that promote or tolerate any class of religious fanaticism or that scorn religious freedom itself, forgetting that it is one of the great contributions of the West to Humanity. In this sense, it is more open than that elaborated by the father of religious freedom, John Locke, who excluded atheists out of distrust and Catholics as a matter of dual jurisdiction, or that recently proposed by the American philosopher Ronald Dworkin, who disregards the monotheistic tradition. 

The model I offer considers religious freedom an inalienable heritage of every pluralistic and democratic community, composed of believers and non-believers. But it starts from the idea, unlike Dworkin's model , that religion as such has an intrinsic justification, that is, it is a value in itself, of great social relevance. This is precisely what allows for the existence of a specific right to religious freedom. Indeed, in the same way that the right to life cannot be adequately regulated on the basis, even if it is sometimes true, that living is the greatest source of evils and misfortunes without any mixture of happiness, or the right to work on the basis of budget that working is the best way to contribute to the spread of evil in the world, neither can religious freedom be protected and regulated on the assumption that religion is an obsolete product of ancestral and caveman societies or an evil fruit of superstition. Those who think this way must also be sheltered under this basic human right, but this conceptual approach cannot exhaust the very content of the right to religious freedom.

The paradigm I offer is based on three arguments, which are like three rules of the game. The first focuses on the idea of religion itself; the second on the idea of freedom; the third on the idea of law. I will formulate them in negative terms because the positive aspect of religious freedom (the free search for the sense of the transcendent) must be sustained on a negative basis (immunity from coercion).

The three arguments are as follows: First, no democratic legal system or constitutional model can protect the right of religious freedom without being in some way open to transcendence, acknowledging, at least implicitly, the possibility of the existence of God, in the Abrahamic sense of the term. I am not, of course, referring here to the fact that God should have a legal status of his own, nor that constitutions should contain accredited specialization any reference to God (let the People decide whether or not to do so!), but rather to the fact that the legal system should recognise in some way the legal consequences implicit in the fact that citizens subject to that system may believe in God and may live, privately or in community, their own religion. Thus, the existence of God would become a social budget , and therefore a legal budget . From this budget the right to religious freedom itself was born, and I think it is still inalienable. In other words, in a society built on the idea that God does not exist, there is no room, in my opinion, for plenary session of the Executive Council respect for religious freedom.

Using Christian terminology I will say that in order to "give to Caesar what is Caesar's and to God what is God's", it is necessary that Caesar at least implicitly recognises the possibility of the existence of God. And I speak of God and not of gods because from a legal point of view the identifiability of a God as source and the basis of morality is much more relevant than the recognition of many gods that are difficult to identify, or the non-recognition of any god at all. Incidentally, I am referring to a God, the God of the monotheistic revealed religions, in whom more than half of the earth's population believes.

The second argument argues that no legal system or constitutional model can adequately protect religious freedom without the existence of a dualistic structure that guarantees the necessary autonomy of both the political community and the religious communities. This structure is based on the idea that political communities, because of their ends, can be quasi-complete (Navarra, Galicia, for example), complete (Spain, Germany) - we will talk about this another day - or incomplete (the European Union or the global community), but religious communities, at least from the political perspective, are always incomplete. The reason is that the purpose of a religious community is not the satisfaction of all human needs (or at least most of them), but only those of subject spiritual or religious needs. This argument substantially limits the possibility of the existence of so-called theocracies, but does not exclude them completely, as long as they are constituted according to democratic criteria and procedures and guarantee the religious freedom of all citizens. 

The third argument is a consequence of the previous one: no legal system or constitutional model can adequately protect religious freedom without the necessary power to regulate those religious matters that affect public order, or the rights of citizens, believers or non-believers. This argument allows for partnership between political and religious communities and protects the citizens of a pluralistic community from possible religious contamination in the public sphere (so-called freedom from religion).

Without the theoretical and practical recognition of the right to religious freedom, the state, any state, however democratic it may be, becomes totalised. History has given us very bitter experiences sample . The problem is complex. But it has a solution. Or rather, solutions. All of them converge in the same idea: on earth, there must be room for everyone. Also for God.