Religions and Law: Current Challenges in Latin America

Chapter 7
Religions and Law: Current Challenges in Latin America

Juan Navarro Floria


Latin America stands as an extremely vast and complex reality. The name embraces a great number of countries, from Mexico, through the Central American and many Caribbean countries,1 up to Argentina and Chile, including all of the remaining South American countries.2

In this chapter, my intention is to find elements and traits that are common to this conglomeration. Not a simple task. Although all of the current countries share a longstanding common history determining their present features, they also have diverse ‘pre-histories’ and subsequent historical and legal developments (from the nineteenth century) which do not always converge. Furthermore, if there are common traits, these are more noticeable in some countries than in others.

Nevertheless, I feel that we may find some shared issue/challenges at the dawn of the twenty-first century which may allow us to provide an overall picture, while also stimulating further debate.

From Religious Uniformity to Plurality

The most significant common element among Latin American countries is the fact that they have been either Spanish or Portuguese colonies since the discovery of America by Europeans at the close of the fifteenth century, up to the early nineteenth century.

This long foundational stage, lasting somewhat more than three centuries, has engraved into Latin America a cultural unity that is primarily expressed by a linguistic unity of its own, unique in the world. It is the sole world region where one may cross scores of countries through tens of thousands of kilometres, always speaking the same language.

The other unifying element of the Latin American culture is, precisely, religion. The Spanish and Portuguese conquest was a military, political, economic development, but it was also and fundamentally a religious endeavour. The kings of Spain and Portugal were legitimated in their conquest by the Pope: they were vested with rights over American territory, under the explicit mission to introduce and on condition of introducing the Catholic faith into these territories. The conquest was therefore a missional and missionary act. The Catholic Church accompanied the conquerors from their first travels, and established its structures in America from the very start. The Church’s active participation in accompanying the conquest would later give rise to the ‘black legend’, which ascribed to the very Church all sorts of abuses perpetrated by the conquerors. With the advice that a highly complex historical process requires a delicate approach, and admitting the basic warning that value judgements cannot be undertaken anachronistically, but must rather bear in mind the reality and prevailing values of a given time, it may be asserted that the Church was, essentially, both beneficial and favourable to the defence of the Indians’ rights, notwithstanding the abuses that might have been committed.

The colonial age was characterized by three facts that may still influence, even today, the relationship between religion and law in the area:

1. The (apparent) disappearance of the religious expressions of the indigenous or American peoples, replaced by the Catholic religion. As we will see, such disappearance was only apparent or, rather, partial. Indeed, what occurred was the formation of syncretic religious ways that persist to date and which pose a challenge to the legal framework.

2. The religious monopoly awarded to the Roman Catholic Church, a consequence of the aforesaid, and the ban on other religious expressions establishing themselves in the New World (particularly Judaism, Islam, Protestantism).

3. The close relationship between the Catholic Church and the civil power, expressed by the Patronato, a scheme under which, in practice, the civil authority, to a considerable extent, governed the Church, which depended – both legally and economically – on the Crown.3 This was due to the fact that, in order to achieve evangelization, the Church had practically yielded its own government to the civil authority through the regime of the Patronato Indiano – established under the Bull Universalis Ecclesiae Regiminis by Julius II in 1508 – and its subsequent exacerbation, called the Vicariato Regio, whose foremost development occurred during Bourbon times. Its most remarkable provisions governed the submission of candidates for ecclesiastical offices to, and the setting of boundaries of, dioceses by the Crown, as well as its involvement in the conflicts between bishops and religious orders. The Crown also claimed the power to impose ecclesiastical governors in long periods of vacant episcopal sees, therefore separating the Pope and the faithful with royal authority; even the bishops had their freedom limited, by banning their free communication with the requirement of the exequatur, or pass, for papal documents and provisions. There was also: prohibition of ad limina visits; control of the settlement in the New World of religious orders and the sending of missionaries (Bull Exponi Nobis or Omnimoda by Adrian VI, 1522); and the ‘resource to force’ that enabled appeal against the decisions of ecclesiastical authority before civil courts, as well as the assumption of plenty of powers in the Church’s internal government.

The independence of the countries of Latin America, from 1810 onwards, was economically and politically motivated, yet not religiously so. All the supporters of independence were Catholics. Several had been instructed in Catholic universities and in the political theology of the sixteenth century Spanish school. Although by and large the bishops were against the independence movement, many priests earnestly supported it, even taking the lead in some places. In almost all of the constituent assemblies which established the new states, a good number of the members or deputies were Catholic priests or members of religious orders.

No wonder therefore that the first constitutional laws of all the Latin American countries should uphold, in their initial stage, their Catholic faith as official, even forbidding the expression of other religions, at least in public.

However, the fledgling presence of practising members of other religions (especially Protestant merchants, soldiers and sailors) and pressure from the then dominant power (Great Britain) led to a budding acceptance of the freedom of worship a few years later.

The passage from a State religion, with the Catholic Church’s religious monopoly, to State religious neutrality acknowledging religious plurality (yet not equality), dominated the last half of the nineteenth century and the first half of the twentieth century. This occurred precisely at a time when the Catholic Church was specifically against religious freedom, coincidental with the fierce attacks launched in Europe, but also in America, by anti-clerical liberalism and by masonry.

The first challenge posed to religious freedom in Latin America is, thus, to complete this passage from religious uniformity to such religious plurality as exists today, by providing plurality with adequate acknowledgement and legal scaffolding. In particular, it is a question of shifting from ‘freedom without equality’ (the stage at which all Latin American countries are today) to full legal acknowledgement of plurality, respecting at the same time the peoples’ tradition, culture and identity.

In all Latin American countries the Catholic religion is still broadly the majority religion, albeit with internal diversity and distinctive features. But the Catholic Church no longer holds the religious monopoly in any of them. Religious diversity is more noticeable in some countries than in others. Generally speaking, despite the lack of reliable statistics, we might say that Catholicism is still the religion of some 75 per cent of Latin Americans.

The principal minority, which is also the fastest growing, is that made up of the Evangelical churches, and among them, the Pentecostal and neo-Pentecostal. The Protestant churches, including the Anglican confession, have been the first to settle since the 1820s; today, they are not numerically significant in Latin America, although their cultural presence is active in several places. In general, they are strongly committed towards the human rights movement and ‘progressive’ ideas, evidencing ideological proximity with the Catholic currents guided by the Liberation Theology. Some of these religious minorities are the product of foreign missions, while others spring from Latin American soil itself. The most remarkable current case is provided by the Igreja Universal do Reino de Deus (Universal Church of God’s Kingdom), born in Brazil and expanded throughout America and also in Europe and Asia. It is a ‘neo-Pentecostal’ organization, that includes Christian elements and others of a magical kind (known for its motto ‘stop suffering’) which are the reason for the rejection from the rest of the Evangelical churches, reluctant to recognize it as one of them. A further element of conflict lies in their economic handling, much questioned by many.

The core difficulty posed by this first minority is its great fragmentation. This swarm of churches of very different sizes responds to different ecclesiastical models. Some are centralized structures, while others are congregational, with several independent communities within them. Moreover, the Evangelical churches are subject to an ongoing division process and to the emergence of new churches, many of them bearing scant theological density and capacity for institutional organization.4

A severe challenge is posed to the States for providing a legal channel for such a lively movement, where sincere and serious religious expressions are mingled with personal ventures or adventures. The first challenge is to discover with whom to start a dialogue. The second, related to the former, lies in defining who is to be acknowledged as a church, religious community or institution, and how, with which requirements, and to what extent such acknowledgement is to be granted.5

Moreover, the Evangelical churches do increase the number of the many other religious expressions, with their own needs, claims and structures: from the Jewish and Islamic communities, usually small but qualitatively important in some countries, to religious groups of the most diverse origin (Orthodox and ancient Eastern churches, Buddhist and Hindu communities, syncretic and neo-Christian groups such as the Jehovah’s Witnesses and the Mormons, perhaps in many countries the largest non-Catholic confessions), including indigenous religious expressions.

We are witnessing, in this matter, a complex and unfinished movement that must deal simultaneously with minority demands, sometimes urgent yet inorganic, and with the explicit and dull resistance from the majority church, which often perceives the loss of its former religious monopoly – assisted by the State – as unfair aggression (sometimes rightly so, as when it does endure attacks from governments and minority groups), and which is then tempted to seek restrictions on all these religious expressions, labelled all together as ‘sects’. However, it is worth noticing that there are increasingly efforts to distinguish among situations. In the final document of the Fifth General Conference of the Bishops of Latin America summoned in Aparecida, Brazil, in May 2007, further to a significant appreciation of the ecumenical and inter-religious dialogue, the following is stated:

Within the new religious pluralism in our continent, a sufficient distinction has not been made between believers who belong to other churches or ecclesial communities, both by their doctrine and by their attitudes, from those that form part of the great diversity of Christian (including pseudo-Christian) groups that have installed themselves up in our midst, because it is not appropriate to encompass all of them in a single category of analysis. Ecumenical dialogue with Christian groups that persistently attack the Catholic Church is often not easy.6

Today, the national constitutions of Latin America recognize religious freedom, to a greater or lesser extent. Difficulties usually lie in the laws and administrative rules that safeguard this right and regulate its expression within the State.

Certain countries, such as Colombia or Chile,7 have passed specific laws acknowledging legal capacity for churches and religious confessions. Mexico has also done so, though from a different starting position that has rendered their law quite more restrictive than the others, yet more generous than the former legal framework.8 On the other hand, some countries have still not achieved such legislation,9 while several have not even made the attempt.

Surely, acknowledging legal capacity for religious confessions is but a first step towards granting them an adequate framework for development. It then becomes imperative to adjust the whole of legislation and administrative practice to the new reality of religious plurality. For instance, there are often Catholic chaplains in the armed forces, hospitals and jails, but it is worth providing religious assistance by other religious confessions wherever necessary. Where religion is taught in public schools (such as in Peru or Chile), or the civil effects of religious marriage are acknowledged (such as in Brazil, Colombia or Chile), various different arrangements must also be envisaged.

Reappearance of Indigenous Religiosity and its Legal Framework

The second great challenge in Latin America is to design a proper legal framework for the newly rediscovered religious ways, the indigenous religions that existed prior to the colonization.

At the time of the Spanish and Portuguese conquest, the native peoples of Latin America were at very different stages of development. Side-by-side with the advanced and refined Maya, Aztec and Inca civilizations, vast territories of the continent sheltered nomadic, virtually Stone-Age tribes. But all of them, at their varying levels of development, had their own particular approach to religion and set of beliefs. These indigenous peoples were – on the whole – polytheists (or pantheists), usually identifying gods with the forces of nature. Among their religious practices many were clearly unacceptable to current sensitivity and public order, such as human sacrifice.

The introduction of Christianity forced many native religious expressions into hiding, and sometimes replaced these with syncretic forms. Former deities were identified through characters taken from the rich Catholic calendar of saints, the ancient worship of the dead adopted Christian forms, and sacred places were buried by temples of the new religion, where worship was still offered through rites merging the old with the new.

In the Andean regions, popular religion was and is expressed through fraternities and guilds (cofradías) that (only) apparently reproduce European forms, whereas inwardly they harboured tribal identities and the ancient religious ways.

In other extensive areas, syncretism made matters yet more complex by mixing with Catholicism both indigenous elements, and the pantheistic and animistic religions of the African slaves, giving rise to new religious expressions, such as the Afro-American cults (the santería or voodoo in the Caribbean, the Umbanda, Quimbanda or Candomblé cults in Brazil and other South American places, etc.).

For centuries, native religions, both in their pure form and in their syncretic expression with Christian elements, or appearance, remained invisible to the law. But in recent times there has been an awakening, and a request for social and legal recognition, which poses significant challenges for contemporary states. In the Aparecida Conference, the Catholic Church recognized that: ‘The indigenous and Afro-Americans are emerging now in society and in the Church. This is a “kairos” to deepen the (Catholic) Church’s encounter with these sectors of humanity who are demanding full recognition of their individual and collective rights, to be taken into account in the catholicity of their cosmovision, their values and specific identities, in order to experience a new ecclesial Pentecost’.10 The very fact of recognizing and making room for legislation and legal institutions peculiar to the native peoples, such as a legal framework parallel to the Western-style rule of law governing all of the Latin American countries, is in itself difficult. The religious element renders it still more complex, for it is not easy to distinguish the authentic from that which is invented, the typical from the acquired, the tribal and the cultural from the specifically religious.

In recent years, the constitutions of diverse countries have recognized the institutions typical of native peoples, at times clearly mentioning their religious beliefs and rituals. The most recent and remarkable examples are those of Ecuador (sect. 58):

indigenous communes, communities, peoples and nationalities are acknowledged and guaranteed, pursuant to the Constitution and other pacts, agreements, statements and further international instruments on human rights, the following collective rights … 16. To recover, promote and protect ritual and sacred places, plants, animals, minerals and ecosystems within their territories.