Legal aspects of freedom of religion in Brazil

Posted in Human Rights , Religion and Politics , Tolerance | 17-Aug-10 | Author: Eduardo Felix da Cruz

Brazil is a secular state, but its main legal document starts by saying "We, the representative of the Brazilian people," . . . "promulgate, under the protection of God, the following CONSTITUTION OF THE FEDERATIVE REPUBLIC OF BRAZIL."

Thus, the preamble of the Constitution did not only invoke god's protection, as it is usual for the humble faithful, but it declared that it is under his protection.

Considering the religious tradition of the country, as well as the use of the singular, capitalized word for "god", it may be assumed it refers to the god of the Christian faith.

Notwithstanding, the preamble is just a declaration of intentions, and not a legal binding provision.

In fact, the Federal Constitution enshrines freedom of religion, guarantees protection for the practice of rites and affirms the secularism of the state. Among the fundamental rights and guarantees, the Magna Charta of 1988 sets forth:

Liberty of conscience and belief is inviolable, free exercise of religious rites is ensured and, under the terms of the law, the protection of the places of worship and their rites are guaranteed (article 5, VI).

It is ensured the rendering of religious assistance in civil and military facilities of collective confinement, under the terms of the law (article 5, VII).

No one shall be deprived of any rights by reason of religious belief or philosophical or political conviction, unless it is invoked to exempt him from a legal duty imposed on all and refuse to render an alternative obligation, as determined by law (article 5, VIII).

These provisions cannot be modified in any circumstance, because they are among the so called clauses of stone of article 5, "cláusulas pétreas", although there is no total consensus about such immutability.

To make clear the separation between state and religion, the Federal Constitution also determined that it is forbidden for the Federal Government, states, the Federal District and municipalities to establish religious rites or churches, subsidize them, hinder their activities or maintain a relationship of dependence or alliance with them or their representatives, except for the collaboration in the public interest, in the terms set forth by law (article 19, I).

It also considered that religion can be part of the education process, by determining that classes on religion are of optional enrollment and it constitutes a subject to be taught in the regular hours of public elementary schools (art. 210, paragraph 1).

The Federal Constitution also determined that religious marriages produce civil effects, under the terms of the law (article 226, paragraph 2).

To guarantee that the practice of religion is not hindered by taxation, churches of any denomination are granted tax immunity to their property, income and services related to their essential purposes (art. 150, VI, b, paragraph 4) [1].

Other laws provide for the protection of religious coexistence among different denominations, by criminalizing the practice, inducement or incitation of discrimination and religious prejudice, as well as of race, color, ethnicity or national origin (Law no. 7.716, of 1989), and the crime of genocide for the intent to destroy in part or in whole a religious group, or national, ethnic or racial group (Law no. 2.889, of 1956).

Evidently, such guarantees do not preclude religious groups from obeying the laws of the country and from accepting changes in society that are against their beliefs. I will make very short references to some court decisions to provide a basic idea of how such relations happen in the country, but having in mind that they cannot be regarded as a statistical account of the matter, for there are few cases studied.

It can be started with the recurrent problem of the disrespect of public ordinances by churches, whose noise disturb their vicinities. There are court decisions on this regard, such as the one where a church was sentenced to stop making noise as far as there was no sound treatment to confine it within the facilities, and barred it from opening new branches without sound treatment, under the penalty of a fine for disobedience of the court order [2].

When there is a clear conflict between the refusal of receiving blood transfusion motivated by religious belief and the right to life, the latter prevails on the grounds that the protection of life enshrined in the Federal Constitution is above religious convictions [3].

The Federal Supreme Court denied a provisional injunction requested by Jewish students who sought an alternative date to take the High School National Examination (ENEM), as it had been set for the same day of Shabbat. The Court said that in an initial examination it could be stated that setting an alternative date would not be attuned to the principle of equality before the law, being a privilege to a determined religious group. It was also stated that there are two lawsuits pending judgement that will analyze the matter more profoundly [4].

Certain religious groups promise spiritual cures for any type of diseases, physical impairments and blindness. Even though assessing the attainment of such results would be a feasible task by medical examination, some court decisions analyze the matter on more abstract grounds. In a criminal case it was decided that the Federal Constitution permits charging for religious cures, as it is a matter of faith, and there is not how to separate the wheat from the chaff in such practices [5].

In another case, the defendant was convicted of faith healing for making adults and children to drink animals' blood and alcoholic beverages, putting their lives at risk and inducing the adolescents to alcohol addiction [6].

A plaintiff was awarded damages against a religious group for being the victim of permanent physical injury caused in an exorcism session [7].

Religious motivated offenses to African-Brazilian religions are common, frequently associating their rites to Satanist practices, but there are few court precedents where the offenders are sentenced to pay damages for it [8].

Certain decisions may be contrary to some religions' beliefs or interests, such as the ones that granted pension rights to a same sex couple [9], which is a step in recognizing the existence of these unions as a legal entity, or judged as admissible a public entity to demand compulsory seizure of a church's real estate, with due monetary compensation [10].

A provisional decision of the Supreme Court determined that the prohibition of proselytism of any sort, including of religious nature, in the programs of community broadcast stations is not unconstitutional [11]

In a decision involving delicate religious and ethical issues, the Supreme Court held that research with embryonic stem cells in vitro does not violate the Federal Constitution, for they are not viable either biologically or for the means they are destined for, as they are exceeding embryos. Even though they deserve to be protect by law, embryos in such conditions are not human beings, and their application in medical research does not have any relation to abortions, because it is not the same thing as interrupting a pregnancy [12].

In view of the exposed, it seems clear that the legal system has provided the means to a harmonious and democratic coexistence of freedom of religion and state secularism with respect to the law and to social advancements, even though, in practice, sometimes there are hurdles in attaining such goals.

Footnotes

[1] The immunity is restricted to the taxes known as "impostos", which are levied on the occurrence of certain facts (earning income, having a real estate, making a donation, etc), independently of any state activity rendered in favor of the taxpayer. There is no exemption from taxes levied as a retribution or to cover specific expenditures, such as the rendering of public and indivisible services for the taxpayer, or related to extraordinary public expenses, social contributions for the social security, etc.

[2] (TJ/SP, Ap. Cível n° 867.325-5/4-00, Câmara Especial do Meio Ambiente, Rel. Des. Torres de Carvalho, 13.08.09)

[3] (TJ/SP, AP. Cível n.° 123.430-4, 3ª Câmara de Direito Privado, Rel. Des. Flávio Pinheiro, 07.05.02).

[4] (STA 389 AgR, Relator(a): Min. GILMAR MENDES (Presidente), Tribunal Pleno, julgado em 03/12/2009, DJe-086 DIVULG 13-05-2010 PUBLIC 14-05-2010 EMENT VOL-02401-01 PP-00001).

[5] (STJ/HC 97.236/PB, Ministro PAULO GALLOTTI, julgado em 16/04/2008, DJ: 23/04/2008).

[6] (REsp 50.426/MG, Rel. Ministro JESUS COSTA LIMA, QUINTA TURMA, julgado em 10/08/1994, DJ 29/08/1994 p. 22211).

[7] (REsp 762.367/ES, Rel. Ministra NANCY ANDRIGHI, TERCEIRA TURMA, julgado em 17/08/2006, DJ 27/11/2006 p. 282).

[8] (REsp 913131/BA, Rel. Ministro CARLOS FERNANDO MATHIAS (JUIZ FEDERAL CONVOCADO DO TRF 1ª REGIÃO), QUARTA TURMA, julgado em 16/09/2008, DJe 06/10/2008).

[9] (REsp 1026981/RJ, Rel. Ministra NANCY ANDRIGHI, TERCEIRA TURMA, julgado em 04/02/2010, DJe 23/02/2010).

[10] (MS 21014, Relator(a): Min. SYDNEY SANCHES, TRIBUNAL PLENO, julgado em 21/06/1991, DJ 11-10-1991 PP-14248 EMENT VOL-01637-01 PP-00142 RTJ VOL-00137-01 PP-00166).

[11] (ADI 2566 MC, Relator(a): Min. SYDNEY SANCHES, Tribunal Pleno, julgado em 22/05/2002, DJ 27-02-2004 PP-00020 EMENT VOL-02141-03 PP-00570).

[12] (ADI 3510, Relator(a): Min. AYRES BRITTO, Tribunal Pleno, julgado em 29/05/2008, DJe-096 DIVULG 27-05-2010 PUBLIC 28-05-2010 EMENT VOL-02403-01 PP-00134).

Eduardo Felix da Cruz is Lawyer in the State of São Paulo, Brazil.

Website: www.direitosgerais.com

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