Abstract
The present work is about religion classes in the elementary schools of the Brazilian public education system, a controversial topic since the 1988 Federal Constitution first enlists it in Article 210. Even though the enrollment in the religious education class is optional, the classes are conducted on regular school hours, according to what the constitutional text determines, as an expression of the fundamental right to freedom of religion. Apart from the Constitution, there are also statutes that regulate religion teaching. That is precisely the case of the National Education Guidelines Act (federal statute n. 9394/1996), which ensures respect for religious and cultural diversity and prohibits any form of proselytism. Article 33 of such statute establishes that each State should determine the content of the religious education classes, as well as set the rules for the admission of teachers. The treaty signed by Brazil and the Holy See in 2008 also deals with religious education. Article 11 of the treaty allows for both catholic and other religions education classes. The Attorney General challenged all these statutes in the Supreme Court. In 2010, it filed an Action of Unconstitutionality, alleging that the statutes in regard to religious education classes in public schools violate Article 19 of the 1988 Federal Constitution, which defines Brazil as a secular State. In 2017, the Supreme Court of Justice, by a majority, dismissed the case, deeming the Action of Unconstitutionality devoid of legal grounds, and ruled that the government, observing the binomial State secularity (CF, Section 19,I)/acknowledgment of religious freedom (CF, Section 5th, VI), shall act in full regulation of compliance with the constitutional provision set forth in Section 210, §1st, authorizing the public school system, under equal conditions (CF, Article 5th, caput), to offer religious education of various beliefs by means of formal requirements previously set by the Brazilian Ministry of Education. The anxiety generated by the case depicts the dynamic religious pluralism that exists in Brazil, and exposes the dispute for the public arena, in a polarized environment in which fundamentalism speeches are not uncommon. The text concludes that as long as the Government is not excessively involved, neither confessional nor nonconfessional religious classes violate the Constitution.
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Notes
- 1.
Thus, among the 25 most populous countries in the world, taking into consideration both indicators, Brazil, along with the Democratic Republic of the Congo, Japan, Philippines, and South Africa, are at the lower threshold, while Egypt, Indonesia, Pakistan, Russia, and Turkey lead the troubling rankings. Cf. Pew Research Center Religion and Public Life (www.pewforum.org/2015/02/26/religious-hostilities/).
- 2.
“On average, the Catholic Church lost 465 devotees a day between 2000 and 2010. Protestants have attracted 4383 new believers per day in the same period,” with the Pentecostal denominations presenting the fastest growing number of devotees, according to the magazine Valor Econômico, Eu & Fim de Semana, 10/9/2015, p. 5.
- 3.
In another work, I have presented a Jusfundamental positions catalog (CPJ, in the Portuguese abbreviation; over eighty) which encapsulates the content and scope of religious freedom. For a wide and detailed discussion, including historical aspects, with full bibliographic indication, see Weingartner Neto (2007).
- 4.
- 5.
STF, STA/389, Suspension of Injunction, Full Court, Chief Justice of the Brazilian Supreme Federal Court Gilmar Ferreira Mendes, sentence on December 3, 2009, DJE 11/12/2009.
- 6.
STF, ADI 3714, distributed on April 26, 2006, last operation: process forwarded to the replacement of the Justice Rapporteur of the decision Justice Alexandre de Moraes on March 22, 2017; and STF, ADI 3.901, former Justice of the Supreme Federal Court in Brazil Joaquim Barbosa, filed on June 8, 2007, last operation: process forwarded to the Justice Rapporteur on October 19, 2015, respectively.
- 7.
There is an interesting decision by the European Court of Human Rights, curiously applying the duty of accommodation to a Christian [Nadia Eweida x UK (ECHR, 1/15/2013)].
- 8.
The full discussion, starting from the linking of fundamental rights in relationships among individuals, including topics on a “special equality right” and religious harassment, is found in Weingartner Neto (2007). In the labor context, the excellent book of dos Santos Junior (2013) has to be acknowledged.
- 9.
Section 33 [original wording of the Brazilian National Educational Bases and Guidelines Law (LDB)]: Religious education, with optional enrollment, shall be a school subject at the regular hours of public elementary schools, being offered free of charge to public coffers, according to preferences expressed by the students or by their legal guardians, being: I—denominational, according to the religious option of the student or their legal guardians, taught by teachers or religious advisers prepared and accredited by the respective churches or religious entities; II—interdenominational, resulting from an agreement among the different religious entities that shall be responsible for the preparation of the respective program.
- 10.
Section 33 (wording by law No. 9.475, dated 7/23/1997) Religious education, with optional enrollment, is an integral part of the citizens’ basic education and it is a school subject at the regular hours of public elementary schools, ensuring compliance with the cultural diversity of religions in Brazil, prohibiting any form of proselytism. § 1st Education systems shall regulate procedures for definition of the religious education syllabi and shall establish the rules for the qualification and employment of teachers. § 2nd Education systems shall listen to a civil entity constituted by different religious denominations for definition of the religious teaching syllabi.
- 11.
It refers to one of the ten “branches of knowledge.”
- 12.
Only public schools are obliged and only in elementary school, since the private ones “can adopt it as it seems fit to them, as long as they do not impose certain religious denominations to those who do not want them.”
- 13.
They also have the right not to attend religious classes, if so desired (Bastos and Martins 1989). In reviewing the previous constitutional law, it is observed that “religious education has always been present,” endowed either with a compulsory nature or with an optional one (in the latter case, an authorization from the very separation of State and religion takes place). The first written instrument to provide over the matter was the 1891 CF, when saying that teaching provided in public establishments would be a lay one (Section 72, § 6th).
- 14.
Private schools, which may be denominational (Section 20, III, LDB), are free to offer religious education or not, and it is up to the learner/legal guardian “to choose in these cases the denominational school that best suits their personal beliefs and convictions.” On this topic, see also Martins (1995).
- 15.
The State must “provide sites by designating classrooms and setting day and time and shift so that, if requested, such teaching may be taught by the respective religious denominations” (da Ferraz 1997).
- 16.
Such as, e.g., presence check, measuring results, impossibility of changing options, requesting students to remain in the classroom. José Afonso da Silva is mentioned, for whom there can be no tests showing failing or passing grades.
- 17.
In addition to the fact that the subject is optional (which plays against permanent teachers’ employment), “there is no officially qualified training” (nor is there any provision for higher level courses for such modality [theology college courses are not recognized by the Brazilian Ministry of Education] which makes unfeasible “public servant entrance examination” by the State, which could not even establish the “syllabi” of the course). It is not admissible that teachers who have been hired for other areas may teach religious education—which would be impeded by the principles of neutrality and secularity. Nor is Section 37, IX, 1988 of the Federal Constitution (CF) applicable (temporary hiring would clash with the permanence of religious teaching). In short, the question must be settled within religious denominations. Nor does Section 213 of 1988 CF helps in the matter, which authorizes public resources for “denominational schools.” Neither could religious associations hire the services, by means of agreements, by what was said and by the “demand of public bid or the legal budgetary provision.”
- 18.
It is about establishing “appropriate limits” to reconcile the various interests of groups and individuals. These aspects must be used to control the exercise of policing power by the government—it is for the State “to prevent and repress violations of the right to freedom of thought and religion, including in relations among persons” (da Ferraz 1997).
- 19.
The municipality of Rio de Janeiro created in the Executive Branch Permanent Staff the functional category of “religious teaching teacher, whose entrance shall be by state sponsored public servant entrance examination and with accreditation by the competent religious authorities,” which shall require religious training obtained in an institution maintained or recognized by them” (Section 4th of Municipal Law no. 5303 of October 19, 2011). ADI no. 3268/2004 questions the denominationalism adopted in Law no. 3459/2000. With an opinion by lacking grounds from the Prosecutor General of the Republic, it is a process forwarded to the Justice Rapporteur and Dean of the Court Celso de Mello since April 9, 2013.
- 20.
An Administrative Agreement for exchange of diplomatic correspondence (1935) and an Agreement on the establishment of Military Ordinance and appointment of military Chaplain ministers (1989).
- 21.
For the sons of Voltaire (free masons), clericalism was the “enemy to slaughter” (Le cléricalisme, voilà l’ennemi!), all in the radical climate in which the religious denominations, in turn, would cling to the defense of traditional privileges.
- 22.
With no accurate translation to the English language, this concept, according to the Continental European and Brazilian contexts, encompasses, at least, the ideas of Rule of Law, Democracy and Constitutionalism. In German, Rechtsstaat. Also referred to as Constitutional Democratic State.
- 23.
In any case, shortly after voting on the text of the Agreement, the Chamber of Deputies approved a bill called the general law of religions, which has the same base as the Agreement. Leite (2014) sees the act as some kind of response to the Agreement, some “cry of the minorities” that reproduces two vices: vague terms, “that escape the approach of concrete topics,” and a concern to protect religion exclusively, “leaving aside other issues of constitutional value.”
- 24.
For an analysis of the Brazilian secularity and the agreements between the Holy See and Brazil, see (Souza Alves 2016).
- 25.
Direct Action of Unconstitutionality No. 4439, DF. Justice Rapporteur Roberto Barroso Begun on August 30, 2017, the judgment proceeded on August 31, September 21 and finished on September 27, 2017, when this text was already finished. The Court, by a majority, deemed devoid of legal grounds the direct action of unconstitutionality, defeating Ministers Roberto Barroso (Rapporteur), Rosa Weber, Luiz Fux, Marco Aurélio and Celso de Mello. The Supreme Court decision can be found at http://redir.stf.jus.br/paginadorpub/paginador.jsp?docTP=TP&docID=15085915.
- 26.
Justice Rosa Weber followed the Justice Rapporteur (“Religion and faith relate to the private domain and not to the public one. The State must be neutral.”) and also Justice Luiz Fux (he questioned whether it is reasonable for public schools to be a site for giving lessons of faith to children and adolescents; “Universal and nondenominational religious public education is the only one able to promote tolerant generations which can live in harmony with different beliefs in plural, ethical and religious societies”). Justice Marco Aurélio proceeded in the same line when considering that denominational education in public schools damages the situation of balance between State and religion, required by the principle of secularity. Justice Celso de Mello affirmed the nondenominationalism in comparing the current Federal Constitution and what was prescribed by the 1946 Constitution, as well as in the counter-majoritarian role of the STF in advocating or not for religious minorities, all of this to keep the State in a position of strict axiological neutrality.
- 27.
Currently, 4 geographical states adopt the denominational model (Acre, Bahia, Ceará and Rio de Janeiro); the majority (20 plus the Brazilian Federal District) work with interdenominational teaching; only São Paulo adopted the “teaching religions.” In addition, the syllabi, the form of enrollment, the verification of results and the requirements for hiring teachers vary. The Justice Rapporteur endorses Brazilian anthropologist and law professor Debora Diniz’s opinion at the public hearing of subjecting religious teaching to the national system for assessing the quality of teaching material by the Ministry of Education to ensure nondenominationalism.
- 28.
The Justice Rapporteur recommends: public servant teachers cannot depend on an act of will of any religious denominations; enrollment cannot be automatic; those who do not opt for it must have pedagogical alternatives to reach the minimum annual workload; teaching must take place in a specific class (barring transversality); students can drop out at any time.
- 29.
Votes by Justices Gilmar Mendes, Dias Toffoli, and Ricardo Lewandowski were also for the dismissing the action, and the tiebreaker, in the same sense of dismissal, was up to the Court President, Justice Carmen Lúcia. Dias Toffoli stated that there was an express and conscious authorization from the constituent legislator for the historical model of denominational teaching, whose optionality makes it compatible with the laicity of the State, while safeguarding the person’s individuality and their freedom of belief. The difficulties of practical implementation (risks for minorities) cannot result in annihilation of the right for all, as the law prohibits proselytizing and expected consultation with civil society, in harmony with the education system decentralization (CF, Article 211) and the principle of democratic management (CF, Section 206, VI). Citing precedents of the European Court of Human Rights, Justice Ricardo Lewandowski emphasized that optionality is sufficiently safeguarded for compliance with democratic pluralism and freedom of belief (for which it is necessary to ensure the right to dismissal at any time and no grades should be assigned) since the separation between State and Church does not constitute a wall separating incommunicable worldviews. And the fact that there is a majority denomination (due to the country’s historical formation) does not imply religious proselytism or violation of equality.
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Weingartner Neto, J. (2020). Secular State and Religious Education in Public Schools: The Brazilian Case. In: Souza Alves, R. (eds) Latin American Perspectives on Law and Religion . Law and Religion in a Global Context, vol 3. Springer, Cham. https://doi.org/10.1007/978-3-030-46717-3_5
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