—Juliano Zaiden Benvindo & Fábio Almeida, University of Brasília
On September 27, the Brazilian Supreme Court arguably decided the most important case on religious freedom and education rights in Brazilian history. Under scrutiny was whether religious freedom (Art. 5, VI, of the Brazilian Constitution) and religious education (Art. 210, Paragraph 1, of the Brazilian Constitution) conflict with confessional indoctrination. The action[1] was filed in 2010 by the Attorney-General of the Republic and aimed at discussing the validity of the first paragraph of article 11 of the Agreement between Brazil and the State of Vatican City, later ratified by Congress. According to that clause, Brazilian public schools should offer “religious teaching, Catholic or based on other religious doctrines (…) granted the respect to Brazilian cultural diversity, in conformity with the Constitution and other laws, without incurring in any form of discrimination.” The Attorney-General of the Republic argued that the Agreement violated the separation between church and state (article 19, I of the Constitution) on two main premises. First, although the Agreement granted respect to diversity, it privileged Catholicism above other religious doctrines. Second, the Agreement imposed a confessional model of religious teaching in public schools, violating secularism and religious freedom. By a 6 to 5 majority, the Brazilian Supreme Court ruled that confessional religious education is not at odds with the Constitution, raising a debate over whether Brazil has seriously embraced secularism as a constitutional principle.
Justice Luís Roberto Barroso, the rapporteur, ending up writing the minority opinion. He argued that religious education in public schools must be neutral and no teacher should thereby be a representative of any specific religion. Proselytism thus violates the Constitution. According to him, “the public power is under the duty of guaranteeing that every pupil can exert the right of joining (or not) a creed and, individually or collectively, professing it free of coercion or discrimination and by always respecting the family autonomy.” It is thus against the pupils’ rights to have teachers professing religious beliefs that are not their own, fostering, as a consequence, a “harmful decrease of his or her self-esteem and stigmatization before the school community.” Justice Celso de Mello, also in the minority, argued that “(…) the Brazilian State must keep a position of strict axiological neutrality in order to preserve, in favor of citizens, the integrity of their basic right to religious freedom.”
Justice Alexandre de Moraes raised the opposite argument, according to which religious neutrality is not at odds with granting schools the right to focus on a certain religion. He was explicit in denying state neutrality in religious teaching: “neutrality does not exist, insofar as teaching and education are based on religious dogmas.” Religious education should be confessional and distinct religious denominations could establish agreements with the government. His argument was that the opposite understanding would be a breach of freedom of speech: “we cannot previously censure the dissemination of religious dogmas for those who really want those ideas.” Moreover, he argued that an official content for religious freedom, based on historical, philosophical and cultural aspects of many religious, as sustained by Justice Barroso, would in fact be disrespectful to religious freedom. Justice Ricardo Lewandowski was even more direct. For him, “secularism does not imply state indifference with religions” as long as “religious education is taught in a careful, respectful way and does not discriminate or stereotype pupils based on their personal characteristics or individual choices.”
The Brazilian Supreme Court adopts the seriatim model of deliberation, according to which every Justice delivers his or her opinion in a sequence. Four Justices concurred with Justice Barroso’s opinion, while the other five Justices concurred with Justice Moraes’, which became then the opinion of the Court. This tight result may show that a new approach to religion may be gradually taking root in Brazil, although this trend has not been powerful enough to overcome the longstanding incomplete separation between Church and state in Brazil and, more broadly, in Latin America.
Indeed, Brazil follows a similar pattern of other countries in the region. Latin American constitutions have increasingly guaranteed religious freedom, yet the role Catholicism has played in many constitutions and political institutions is still significant. Possibly the most famous example is the 1853 Argentine Constitution, which, in Article 2, establishes that “The Federal Government supports the Roman Catholic Apostolic Faith.” More curious, it was not until the 1994 revision that, in order to be elected President or Vice-President, the requirement of “[belonging] to the Roman Catholic Apostolic Church”[2] was removed. The 1949 Constitution of Costa Rica also mentions that “The Roman Catholic Apostolic Religion is that of the State, which contributes to its maintenance (…).”[3] Other countries in Latin America clearly place the Catholic Church in a privileged position.[4]
No wonder that religious education would be part of the traditional curriculum in public schools in Latin America. Yet, a new argument needed to be raised to reconcile religious freedom and religious education: As long as pupils have the right not to participate in these classes if they (or their parents) so wish, religious freedom and religious pluralism are guaranteed. This strategy was either explicitly placed in the constitutions or became a central part of those agreements sponsored by the Vatican. For instance, the 1972 Constitution of Panama states that “The Catholic religion shall be taught in public schools, but, upon request of parents or guardians, certain students shall not be obliged to attend religion classes, nor to participate in religious services.[5] Another interesting example took place in Colombia. The 1991 Colombian Constitution guarantees freedom of religion.[6] However, it was not until 1993 that the Constitutional Court challenged the Concordat and Final Protocol that Colombia had previously undertaken with the Vatican. Art. XII of the Concordat, which was struck down, determined that “religious teaching and education [would be] according to the Church’s teaching” and that “the competent ecclesiastical authority must provide the curricula, approve religious textbooks, and oversee how this teaching is done.”[7] Despite this decision, the teaching of Catholic principles has often been deemed a simple provision of a service which does not always represent a form of “institutional confessionalism.”[8]
In Brazil, the adoption of this argument stems from a gradually shifting position of the Church vis-a-vis the state. Since 1890, first with Executive Decree n. 119-A and then with the 1891 Constitution, the separation between church and state has been an important feature of Brazilian constitutionalism. However, in spite of the liberal orientation of the new republican Constitution, teachers in public schools continued to indoctrinate students in the Catholic faith with little opposition.[9] Brazilian society was also uneasy with the explicit adoption of laicity as a constitutional principle and firmly pressed institutions to revoke secularism.
In 1925/1926, an attempt to pass a constitutional amendment to reinstate the “Catholic Church as the religion of the Brazilian people” and the facultative teaching of religion in public schools narrowly failed. In 1931, with Decree n. 19.941, the non-mandatory teaching of religion in public schools was nonetheless established, sparking a heated debate between those aspiring a closer relationship with the Holy See and the champions of secularism. The former understanding prevailed and, despite strong opposition, the Constitutional Assembly of 1933 institutionalized the non-mandatory teaching of religious school in Article 153 of the 1934 Constitution. From that moment onwards, no Brazilian Constitution would ever refer to laicity as a principle in public education and every Constitution that followed reproduced article 153 with minor changes. Religion in public schools became part of the national curriculum, allowing parents to opt-out. In the following decades, the alignment of interests between the Catholic Church and Brazilian governments resulted in the official toleration of Catholic proselytism in religion classes as an explicit mean to provide a moral foundation for the regime. Especially during the dictatorships of Getúlio Vargas (1937-1945) and the military regime of 1964-1985, religious teaching was diverted not only to indoctrinated children in the Catholic religion, but also to inculcate the ideological foundations of the dictatorial tenets.
During the debates resulting in the enactment of the 1988 democratic Constitution, the offering of religious education in public schools was heavily discussed. Despite strong opposition by secularists and representatives of minority religions, especially in the face of deep changes in religious demography over the years, the Constitution kept the clause determining that “religious education shall be an optional course during normal school hours in public elementary schools.”[10] Law n. 9394 of 1996, which regulates the main directives of national education, establishes that religious education is optional for students, even though it is part of the curriculum of the basic schools. The Law also forbids “any form of proselytism.” States and municipalities, however, have had a wide margin in interpreting these clauses, and frequently this has resulted in their adoption of majoritarian religions to the detriment of other beliefs.
This historical panorama highlights the relevance of the case brought to the Supreme Court in 2010. It was the opportunity for it to determine, once and for all, that secularism ought to be taken seriously in Brazil. It was also the moment to defend that allowing the students (or their parents) to simply opt out is not good enough as a protection of religious freedom and religious pluralism. Democratic constitutions protect rights by challenging longstanding traditions and by fostering public rationality through institutional means.[11] The Brazilian Supreme Court’s decision denied this important constitutional role and, in the end, reinforced the argument that gradually has taken root in Brazil – and in Latin America in general – that confessional religious education is non-discriminatory. Its decision reinforced proselytism and discriminated against many minority religions. It is as if Brazil, always when is about to turn the page towards the future, is constrained by a stubborn never-ending past. May the day come in which Brazil learns to overcome it.
Suggested citation: Juliano Zaiden Benvindo & Fábio Almeida, Religious Education in Brazil: A Tale of a Never-Ending Past, Int’l J. Const. L. Blog, Oct. 25, 2017, at: http://www.iconnectblog.com/2017/10/religious-education-in-brazil-a-tale-of-a-never-ending-past/
[1] ADI n. 4439, Rel. Min. Luís Roberto Barroso, Diário de Justiça Eletrônico (02/10/2017).
[2] Constitution of Argentina of 1853 as amended to 1957, art. 76.
[3] Constitution of Costa Rica of 1949, Art. 75.
[4] See art. 26 of the 1983 Constitution of El Salvador (recognizing the juridical personality of the Catholic Church); art. 35 of the 1972 Constitution of Panamá (mentioning that Catholicism is the majoritarian religion in the country); art. 5 of the 1966 Constitution of Uruguay (stating the “right of the Catholic Church to ownership of all temples which have been built wholly or partly from funds of the National Treasury.”); and art. 50 of the 1993 Constitution of Peru (stressing the cooperation with the Catholic Church).
[5] The Constitution of Panama of 1972, art. 107
[6] Constitution of Colombia of 1991, art. 19.
[7] See Manuel José Cepeda Espinosa & David Landau. Colombian Constitutional Law (Oxford University Press, 2017), p. 135.
[8] See Alberto Echeverri, Liberdad Religiosa y Educación en Colombia: Ni intocables ni míticas. Revista Cientifica Guillermo de Ockham, Vol. 10, n. 1, 2012, p. 128.
[9] See Pedro Ruedell. Trajetória do Ensino Religioso no Brasil e no Rio Grande do Sul: Legislação e Prática (Sulina, 2005). p. 75.
[10] Constitution of Brazil of 1988, art. 210, §1.
[11] See Cass Sunstein. Designing Constitutions: What Constitutions do (Oxford University Press, 2001), p. 67-93.
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