Libertà religiosa e sistema delle fonti del diritto: il caso del burqa nell'ordinamento italiano e spagnolo

[Machine translation] The subject of this contribution is the relationship between the right to religious freedom and the system of sources of law in Italy and Spain, looking at a specific form of manifestation of religious freedom, such as the use of the burqa. In Italy, the right to religious freedom is proclaimed in the constitutional dictation (art. 19 Constitution.), which provides that the discipline of everything related to this freedom must be reserved to the law, which may introduce restrictions only to protect legal assets explicitly identified (good custom) or implicitly (public order and public safety), by the constitutional legislature. If these are the parametric premises, and the burqa is assumed as a manifestation of religious freedom, there have been limits to its free use, introduced not through laws, but through trade union orders, not contigible and urgent, and this under the TUEL, as amended by art. 54 of law n. 125/08, which has given mayors an extra ordinance power. The Constitutional Court put an end to this anomaly, which saw administrative measures in form, but in substance regulatory measures affecting the right to religious freedom, by declaring the unconstitutionality of the rule conferring power (Constitutional Court, April 4, 2011, n. 115). Even after this ruling, however, some open questions remain as to whether or not it is absolutely possible to limit the full veil, even in the light of the numerous bills on the subject, pending before Parliament. This phenomenon of local measures and bills banning the burqa is then compared with similar municipal measures and Spanish bills, also with references to the Iberian Constitution and the organic law on religious freedom.