What determines the adoption of the cooperation clause in constitutions in Europe: A holy alliance between the Catholic Church and constitution-makers?

Constitution-making processes in European Catholic-majority countries were threatened by conflicts over the role of religion in the state. In two of these countries, Poland and Spain, constitution drafters reached a solution that allowed the accommodation of the church’s demands in a setting respectful of religious freedom through the adoption of the cooperation model into the constitutional text. This paper will determine the conditions that favored the adoption of a regime of cooperation between the church and the state as a constitutional principle in Poland and Spain, whereas other third-wave countries with a strong and majoritarian Catholic church, such as Portugal, maintained a regime of separation. One answer could be that this resulted from the constitutional drafters’ consensual behavior during the constitution-making processes. Alternatively, one can see that the influence of the progressive wing of the Catholic hierarchies upon constitution drafters, in particular moderate left-wing forces, forced a consensus among the drafters over the principle of cooperation. The analysis of the three cases, Poland, Portugal and Spain points that the access of the progressive clerics to constitution drafters was the chief factor. The Spanish case is inconclusive, as the settlement over the cooperation model could result both from a consensual decision making style in the Cortes in 1978, or from the access and influence that the progressive church enjoyed over the constitution drafters. However, in Poland, despite a confrontational constitution making process, the progressive church banked on the pact with the moderate left to introduce the cooperation clause. In Portugal the opposite was true: despite a consensual process for adopting a constitution, the church hierarchy was mainly excluded from the constitutional process and parties maintained a regime of separation. Because the Vatican Council II was the source of the cooperation model, the paper links to the broader theme of whether the Catholic Church’s doctrine of aggiornamento with democracy contribute to a post-war transnational constitutionalism.