XI Международная студенческая научная конференция Студенческий научный форум - 2019


Любимова О.В. 1
1Владимирский государственный университет имени Александра Григорьевича и Николая Григорьевича Столетовых
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The understanding of the relationship between church and state in Brazil still reflects concepts of secular philosophy that governed the birth of the Republic. One of its principle theorists was the Brazilian jurist, Rui Barbosa (1849-1923), for which the separation between church and state was one of the foundations of the modern state. This jurist was one of those responsible for the separation of the Catholic Church and the Brazilian State and for the consequent extinction of the patronage system in the nascent Republic. Rui Barbosa was not anti-clerical, much less anti-Catholic. According to his theory, the alliance between the sovereignty and the altar was an alliance of mutual slavery that was bad for both the Church and the State. According to this view, the objective of religious liberty, considered as the liberty for excellence, was to become a fundamental element in the political and social organization of the country.Within the Brazilian conception of the separation of church and state, it is not considered an offense to secularism if, for example, the State creates an ecumenical chapel within the annex of the Federal Senate. A synthesis of the Brazilian legal understanding of the separation of church and state was given by the Federal Court of the Fourth Region.

Considering the secularism of the State under a non-denominational rubric, the court affirmed four fundamental pillars of state secularism:

(a) the State cannot adopt any religion or make any official statements about religious questions;

(b) in the State’s official acts and protocols, it cannot observe religious symbols;

(c) the State cannot program education or culture according to religious guidelines;

(d) public education cannot be confessional

The country has an area of 3,286,488 square miles and a population of 191.9 million. Nearly all major religious groups are present. Many citizens worship in more than one church or participate in the rituals of more than one religion. The 2000 census by the Geographic and Statistical Institute of Brazil indicated that approximately 74 percent of the population identified itself as Roman Catholic. Approximately 17.9 percent of the population is Protestant, an estimated 85 percent of whom are Pentecostal or evangelical, including the Assemblies of God, Christian Congregation of Brazil, Universal Church of the Kingdom of God, the Quadrangular Gospel, God is Love, Maranata, Brazil for Christ, House of the Blessing, and New Life. Lutherans, Presbyterians, Baptists, Seventh-day Adventists, Methodists, and Congregationalists account for most of the remaining Protestants and are centered in the south. In the 2000 census, 199,645 residents identified themselves as belonging to The Church of Jesus Christ of Latter-day Saints (Mormons); however, the church lists its current membership at approximately one million.

According to the 2000 census, there are 214,873 Buddhists, 2,905 Hindus, and 151,080 adherents of other eastern religions. Japanese-Brazilians, to a limited extent, practice Shintoism. The census reports 17,088 adherents of indigenous religious beliefs. Members of African and syncretic religious groups such as Candomblé total a reported 127,582, while followers of Umbanda total 397,431. There are no statistics on the number of followers of Xango or of Macumba; however, the census indicates that members of Afro-Brazilian religious groups total 0.3 percent of the population.

The census reported 25,889 practitioners of Spiritualism. However, according to Fundacão Getulio Vargas, a higher education institution considered a "policymaker think-tank," in 2003 followers of Spiritualism, mainly Kardecists--adherents of the doctrine expounded by Frenchman Allan Kardec in the 19th century--constituted approximately 1.4 percent of the population. An estimated 5 to 7 percent of the population does not practice any religion.

Reliable figures on the number of Muslims do not exist. The 2000 census reported only 27,239 Muslims. Muslim leaders estimate that there are between 700,000 and 3 million Muslims, with the lower figure representing active practitioners. There are significant Muslim communities in the industrial suburbs of the city of São Paulo and in the port city of Santos, as well as in smaller communities in Paraná State in the coastal region and in Curitiba and Foz do Iguazu in the Argentina-Brazil-Paraguay triborder area. The community is overwhelmingly Sunni; the Sunnis are almost completely assimilated into broader society. The recent Shi'ite immigrants gravitate to small insular communities in São Paulo, Curitiba, and Foz do Iguazu. Sunni and Shi'a Islam are practiced predominantly by immigrants who arrived during the past 25 years from Syria, Lebanon, and Egypt. Conversions to Islam increased during the reporting period among non-Arab citizens. There are approximately 60 mosques, Islamic religious centers, and Islamic associations.

According to the Jewish Confederation of Brazil (CONIB), there are more than 120,000 Jews, of whom 65,000 reside in São Paulo State and 40,000 in Rio de Janeiro State. Many other cities have smaller Jewish communities

Article 5 of the Constitution provides for freedom of religion, and other laws and policies contributed to the generally free practice of religion. Criminal Code (Law 2.848/40), article 208 enforces protection of religious freedom.

There are no registration requirements for religious groups, and there is no favored or state religion. Religious groups are free to establish places of worship, train clergy, and proselytize. There is a general provision for access to religious services and counsel in all civil and military establishments. The law prohibits discrimination based on religion.

The Government observes the following religious holidays as national or regional holidays: Saint Sebastian's Day, Ash Wednesday, Good Friday, Corpus Christi, Saint John's Day, Our Lady of Carmen (Carmo), the Assumption, Our Lady Aparecida, All Souls' Day, Evangelicals' Day, the Feast of the Immaculate Conception, and Christmas.

Education is mandatory for all children, but parents are free to send their children to the public or private school of their choice. Public schools are required to offer religious instruction, but neither the Constitution nor legislation defines how this should be done. Religious instruction is optional for students. Each school defines the religious curriculum, usually in agreement with parent councils. The law prohibits public subsidies to schools run by religious organizations.

It is illegal to write, edit, publish, or sell books that promote anti-Semitism or racism. The law enables courts to fine or imprison from two to five years anyone who displays, distributes, or broadcasts anti-Semitic or racist material.

According to a March 7, 2009, article in the O Estado de São Paulo newspaper, the Federal Public Ministry in São Paulo requested an injunction prohibiting the broadcast of television programs on the TV Globo, Record, and Gazette channels that offend religious groups of African origin.

Both the Union or federal government and states and municipalities have the power to legislate for the political organization of Brazil. For this reason, there exists a large number of legal instruments dealing with religious issues on the national level but also in the diverse states of the Federation and the thousands of municipalities. In recent years, there has been a major influence by religious groups on Brazilian society, not only in relation to new religions and churches, but also in relation to Afro-Brazilian cults like Umbanda and Candomblé. One example of this phenomenon is the Code of Garbage Collection of Porto Alegre, altered by the Complementary Law Number 602/2008, which expressly accepted from sanctions any disposal in public places of dead animals used in the worship of African religions and in Umbanda.This practice is ordinarily punished, but, for religious reasons, it is now permitted.

A. Jurisprudence

There is a great deal of jurisprudence in the Brazilian courts, dealing with religious liberty. There are decisions that deal with issues such as religious teaching in public schools,taxation of churches and religious associations, the involvement of churches and religious groups in the electoral process, religious assistance in the armed forces, etc. In some cases, an evident contradiction and lack of uniformity in the application of the laws of religious liberty by Brazilian courts is noted. A good example of this contradictory jurisprudential position can be found in cases involving disputes about Sabbath day observance according to an individual’s personal religious precepts. Many of these cases involve members of the Seventh-day Adventist Church that ask colleges to hold exams on days other than Saturday because it is the Sabbath day of their religion, as well as for Jews and members of other religions. Some courts, including the Federal Supreme Court, deny them the enjoyment of this right. According to some decisions, conceding the benefit of holding the exam on a different day than that determined for the majority of the other students would be an unwarranted discrimination. Based on this position, the right to religious liberty, protected by Article 5 of the Federal Constitution of 1988 (CF–88), cannot be invoked to support an exemption from a legal obligation imposed on all or to exempt a refusal to perform an alternative obligation provided by law. Other courtsconsider this issue differently and hold that the precepts of a religious order can fall under

Article 5 of the CF–88 and thus justify holding exams on a different date other than that established for the majority of the candidates.

In tax matters, a consolidated jurisprudence, confirmed by the Federal Supreme Court, considers the tax immunities provided by Article 150(VI)(b) of the Federal Constitution of 1988 to reach not only buildings designated by a church for religious worship, but also all the religious institution’s assets, including their rent and essential services. Other questions addressed by Brazilian courts on the issue of religious liberty are: religion and the liberty to come and go; anti-Semitism and crimes of racism; and freedom to worship and travel for religious reasons.

B. Religion and Propaganda

The risk of misuse of political influence by churches and religious communities for electoral ends brought the Superior Electoral Court in 2008 to issue Resolution Number 22.71845 that prohibited religious advertising by way of speakers or sound amplifiers at a distance more than two hundred meters from a church (art. 12, § 1, III). The same resolution considers temples as common areas, similar to public light posts and traffic signals, viaducts, walkways, bridges, bus stops, and other urban facilities, in which advertising of any nature is prohibited, “including graffiti, ink signs, or the hanging of signs, standards, banners, or the like” (art. 13, § 2).

C. The Service of Religious Assistance in Armed Forces – SARFA

One of the few provisions of Brazilian law regarding the establishment of a religious body within the State apparatus is known as SARFA (Service of Religious Assistance in the Armed Forces), whose current form is contained in Federal Law Number 6.923 of 29 June 1981. According to this law, ARFA’s purpose is to provide religious and spiritual assistance to soldiers and civilians that work in military organizations, as well as to their families, and also to give assistance in activities involving moral education provided by the Armed Forces (Article 2). SARFA acts in military units, ships, hospitals, bases, and other military establishments (Article 3, I). It allows for the integration of military chaplains, priests, religious ministers, or pastors of any religion as long as its creed does not offend the discipline, morals, or legislation in effect (Article 4). The chaplain must be a native Brazilian, a volunteer of an age between 30 and 40 years old, be graduated from a program of theology at the university level, have a minimum of three years of ministerial experience, have the express authorization of his religious authority, and have the assent of a superior military official of the Armed Forces. The law states that SARFA should reflect the religious diversity of the Brazilian people. With this purpose, the law’s text states that military chaplains should be proportional in number and religion to the members of the armed forces (Article 10).

D. The Agreements between Brazil and the Holy See

The Roman Catholic Church is the only religious confession to have agreements with Brazil. Currently there exist three agreements between Brazil and the Holy See. The first is the “Administrative Agreement for the Exchange of Diplomatic Correspondence in Special Bags,” signed on 2 October 1935, which deals with diplomatic correspondence.The second agreement is the “Agreement about Religious Assistance in the Armed Forces” of 23 October 1989, which entered into force upon its signing. Finally, the last agreement with the Holy See was signed in 2008. Of the three, the agreement of 2008 is the broadest and deals with a large number of different issues. Therefore, it is the only one that approaches the classic model of a contract, even if the contracting parties have opted to use the label “agreement.”

On 13 November 2008, during his first official visit to the Vatican, President Luiz Inácio Lula da Silva signed the “Agreement between the Federal Republic of Brazil and the Holy See related to the Legal Status of the Catholic Church in Brazil” in the Vatican library. In the 1980s, by the initiative of the National Conference of Brazilian Bishops (CNBB), the process of the agreement had been started.

As demonstrated by the name of the Agreement of 2008 “relating to the legal status of the Catholic Church in Brazil,” the principal element of the Agreement of 2008 is a reaffirmation of the recognition of the legal personality of the Catholic Church, already guaranteed since 1890 by the Decree Number 119-A on January 7 of that year, and that now, as explained by the new Agreement, is extended to all the ecclesiastical institutions under the provisions of canon law. Being a legal instrument of ample scope, the Agreement of 2008 provided for various aspects of the relations between the State and the Catholic Church.

a. Religious teaching in public school

The agreement provided the guarantee of religious teaching in public schools. In order to reject a system of religious discrimination, the Agreement of 2008 declares that this guarantee is extended to other religious confessions. In terms of religious education, the text of the Agreement practically reproduces the normal Brazilian legal tradition60 and repeats the provisions of the first paragraph of Article 210 of the Federal Constitution of 1988 and also repeats Article 33 of the Law of Guidelines and Bases of Education (LDB) that establishes the individual right of students to have at their disposal an optional course of religious study in public schools. With respect to religious education, the Agreement of 2008, referring to the teaching of the Catholic religion and of other religious confessions, does not confer privileges or advantages to the Catholic Church, nor does it create a distinction between Catholicism and other beliefs. In practical terms, the text of the Agreement of 2008 translates into a succinct form, Article 33 of the Law of Guidelines and Bases of Education (LDB), by which enrolling in religious teaching is optional, religious teaching is a compulsory subject in the curriculum, and schools must respect the religious diversity of Brazil and not allow proselytism.

b. The extension to the Catholic Church of benefits conceded to charities

Article 5 of the Agreement of 2008 confers a tax exemption to temples and to activities of a religious nature. This benefit is already the subject of Brazilian legal provisions.

Besides protecting the exercise of free worship given to religious confessions, it represented freedom from the burden of taxation. The scope of this provision was to guarantee the development of humanitarian and social work done by the Catholic Church in Brazil.

c. Ratification of ecclesiastical court rulings in matrimonial matters

One of the major innovations introduced by the Agreement of 2008 is the possible ratification of ecclesiastical court rulings in matrimonial matters. The text of Article 12 contemplates this possibility. In the Brazilian judicial system, the Superior Justice Court is the competent organ for the ratification of foreign sentences.

d. The right to spiritual assistance in establishments of collective internment

Article 8 secures the right to the Catholic Church to give spiritual assistance in establishments of collective internment, such as hospitals, prisons, asylums, and other similar institutions. This right was provided generically in the Federal Constitution of 1988, which guarantees the providing of religious assistance at civilian and military establishments for collective confinement, 64 and is now recognized specifically as a right of the Catholic Church.

Federal Law Number 9982 of 14 July 2000, deals with the topic, determining that to the religious of all confessions is secured access to establishments for civil and military incarceration. This same law guarantees the concession of spiritual assistance by a minister of the same faith of those who find themselves deprived of liberty. The Spiritual Assistance in establishments of collective confinement is also regulated by the laws of various Brazilian states and municipalities.

e. The exclusion of labor contracts between the Catholic Church and its members

Affirming the “peculiar religious and charitable character of the Catholic Church and its institutions,” Article 16 of the Agreement of 2008 excludes from the reach of the labor justice system relations between Catholic and religious institutions and those that do any type of voluntary work within those institutions. These types of relations have now be- come exclusively regulated by canon law.


A pension is guaranteed to monks, priests, pastors, and ministers of any denomination. They are considered “individual contributors” (in previous legislation they were treated as “autonomous workers”) and it is seen as necessary to place them on social security. Also, for the purpose of social security, there exists the national Register of Religious Entities – CER70 in which all religious organizations must register or lose their position in social security.

A. Other Rights Recognized by the Agreement of 2008

The other important provisions of the Agreement of 2008 are: the allocation of spaces for religious purposes in urban planning projects and master plans; the recognition of the civil effects of Catholic marriages; the recognition of the right of the Catholic Church to publicly exercise its apostolic mission; the prohibition on a Brazilian archdiocese, depending on a bishop whose Episcopal seat is outside the national territory; the declaration that the historical, artistic, and cultural heritage of the Catholic Church is part of the Brazilian cultural heritage; the duty of the Estate to protect Catholic places of worship as well as its “rituals, symbols, images, and objects of worship,” against any form of violation, lack of respect, or illegitimate use (Article 7); the prohibition against demolishing, occupying, transporting, or expropriating Catholic buildings of worship; the mutual recognition of titles and qualifications of the graduate and post-graduate level (Article 9); the recognition of the right of the church to construct and administer seminaries and other ecclesiastical institutions of training (§ 1, Article 10); the recognition of the civil effects of the titles and degrees issued by seminaries and other ecclesiastical institutions of religious training; the guarantee of respect for the secrets of the priestly office, especially in relation to sacramental confession; and finally, the possibility of consular visas for foreign missionaries.


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