Abstract
In contrast to the previous constitution (1886), the Colombian State fully adopted the principle of secularity with the Constitution of 1991. This is demonstrated by the debates of the National Assembly in 1991, the text of the Constitution itself, and subsequent legislation and case law. However, it was not until the Religious Freedom Act (Act 133 of 1994) that the secularity of the Colombian State was explicitly affirmed for the first time. The Constitutional Court has played the leading role in the concrete development of the principle of secularity through its case law. Throughout the years, since it was created in 1991, there have been many occasions in which it has ruled on issues related to religious freedom and to the “secular state.” Although it is possible to identify concepts that can be considered consolidated, there have been different approaches and differences of judgment depending on the specific case and the personal convictions of the judges. The issue of the importance of the religious factor in public life has been raised in close relation to this. Most of the relevant decisions of the Constitutional Court have had the Catholic Church as their reference point, due to the historical and social reality of the country. The process in recent years has insisted on the equality of all religious denominations before the Law and on the elimination of any form of privilege or discrimination. Nonetheless, there are difficulties in explaining the relationship between equality and secularity on the one hand and between secularity and pluralism on the other. This article examines these issues in light of the right to religious freedom as the fundamental principle of both secularity and equality.
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Notes
- 1.
According to a recent study published by Semana magazine, 85% of all Colombians consider religion to be important in their lives. The distribution of the population by religion is as follows: Catholics, 72%; Evangelical Christians, 15%; other religions, 4% (http://www.semana.com/nacion/articulo/colombianos-consideran-a-la-religion-muy-importante-en-sus-vidas/530679).
- 2.
See Legislative Decree No. 0247 of 1957.
- 3.
Introduced into the Constitution through the Constitutional Reform of 1936.
- 4.
Being the recognition of a fact, but with no mention of special State protection for Catholicism (unlike the Preamble to the 1886 Constitution then in force), the Constitutional Court, upon examining the constitutionality of the Concordat, in Decision C 027 of February 1993 determined that the Article did not compromise the principles of secularity and equality assumed in the Constitution of 1991. It is therefore a fully applicable law. Regarding the scope of Decision C 027/93 and the present state of the Concordat rules, see Prieto (2010). The text of the Constitutional Court decisions quoted in this paper is available at the Court’s official website: http://www.corteconstitucional.gov.co/relatoria/. The internal enumeration of the decisions does not follow a uniform criterion.
- 5.
For information on the drafting of the new preamble, with useful references to the sources, see Prieto (2011).
- 6.
These are the words of María Mercedes Carranza, a member of the Constitutional Assembly who wished to include the invocation of God in the preamble proposal she presented with other delegates, and the text, which came to a vote on April 8, 1991, is substantially the same as the one that was finally adopted. She explained that the invocation was included, despite her personal disagreement, out of respect for “the convictions of those who elected us.” During the debate, this condescendence was interpreted as the way non-believers sought to achieve consensus. In return, believers had to “yield” their own convictions, by renouncing the text of the previous preamble. See Prieto (2011).
- 7.
See Articles 13 and 19 of the Constitution of 1991.
- 8.
Nonetheless, there has always been awareness that the Colombian State assumed the principle of secularity in 1991. To summarize, a recent Constitutional Court decision states: “The jurisprudence has emphasized that even though State secularity was not expressly incorporated into the Constitution through an explicit rule, it is a principle that is part of the constitutional order based on the systematic and genealogical interpretation of the changes produced by the Constitution of 1991 in relation to the Constitution of 1886, since the new constitution promotes the separation of church and State, the State neutrality regarding different religions, and the prohibition of favoritism towards any of them” (Decision C 570 of 2016, n. 4.4).
- 9.
It read as follows: “Freedom of religion and of worship. Every person has the right to freely profess his or her religion and to disseminate it individually and collectively. Freedom of worship is guaranteed. All religious faiths and churches are equally free before the law. The exercise of the priestly and pastoral ministry of any religion or form of worship is incompatible with holding public office, except in institutions providing education, or charity or spiritual assistance” (Gaceta Constitucional n. 82, 25-IV-91, p. 15). As is well known, the Gaceta was the official organ of the National Constitutional Assembly. We use the facsimile edition published in CD-ROM form by the Imprenta Nacional de Colombia.
- 10.
The Report-Paper for the first Plenary Session debate stated that “Having disappeared from the Preamble to the Constitution (…) the official status of the Catholic religion, there is full equality among religions and churches, which translates into freedom of religion” (Gaceta Constitucional n. 82, 25-IV-91, p. 12).
- 11.
The Article relating to freedom of conscience is Article 18: “Freedom of conscience is guaranteed. No one will be harassed for his or her convictions or beliefs, nor be compelled to reveal them or obliged to act against his or her conscience.”
- 12.
The references in this Article are to the civil effects of marriage, religious education in public schools, and religious assistance in hospitals, military facilities, and detention centers.
- 13.
See Prieto (2009).
- 14.
See the RFA, Article 2, 2.
- 15.
See Ibid., Article 15.
- 16.
See Ibid., Article 7.
- 17.
See Constitution, Article 42, and the RFA, Article 6, d).
- 18.
See Article 68 of the Constitution; Article 6, h) of the RFA, and Articles 23-24 of the General Education Law (Act 115 of 1994). The right of students to refuse the religious education offered to them is guaranteed in all of these laws.
- 19.
Act 48 of 1993, Article 28.
- 20.
See the RFA, Article 6, f), and Article 8.
- 21.
It involved Article 152 (partial) of Decree-Law 1355 of 1970. The demanded rule established that the Film Classification Committee would include a cinema expert, a lawyer, a psychologist, a representative of the Parents Association, and a representative of the Archdiocese of Bogotá as well. The purpose of said committee is to classify the films offered to the public in order to establish limitations, if needed, based on the age group of the viewers (protection of children and adolescents).
- 22.
See Article 150, 15, of the Colombian Constitution.
- 23.
See Decision C 570 of 2016, n. 4.2.
- 24.
The former declared the unconstitutionality of the law commemorating the Jubilee of the Pontifical Crowning of the image of Our Lady of the Rosary of Chiquinquirá, in the municipality of La Estrella, Antioquia. The law designated the municipality a “Sanctuary City and Heritage of Cultural Interest,” in recognition of its cultural and religious tradition. Furthermore, the nation committed itself to the “foment, dissemination, development of programs and projects undertaken by the municipality of La Estrella and its vital forces to exalt it as a Sanctuary City,” and in support of the works that made known the history and cultural tradition of the municipality. Decision C 817 of 2011 declared the unconstitutionality of Act 1402 of 2010, “by which the Nation is associated with celebrating the 50th anniversary of the Diocese of El Espinal, and the Cathedral of El Espinal in the department of Tolima is declared a national monument. The National Government is authorized to allocate funds from the General Budget of the Nation to finance the execution of the necessary works for remodeling, repairing and conserving the cathedral located in El Espinal.”
- 25.
The Spanish initials for The Colombian Institute for the Foment of Higher Education.
- 26.
The National University had scheduled its entrance exams for a Saturday. One candidate, who was a member of the Adventist Church, presented an acción de tutela (petition for guardianship or protection) in order to be given the exam on a day other than Saturday. The decision upheld the student’s right to religious freedom and obliged the university to seek alternatives that would respect his religious convictions.
- 27.
It resolved the case of two Evangelical Christian students who refused to take the ICFES exams on Sunday for religious reasons. According to the decision, “Although administering the State exam is a necessary measure under Article 67 of the Political Constitution, carrying it out on a different day does not contravene the constitutional obligation of the defendant entity. In fact, the intention is not to refuse to give the exam, but to do it on a different day, since that would harmonize the individual’s fundamental right to freedom of religion with the obligation of the ICFES to evaluate the quality of education in Colombia” (n. 3.3.1.2).
- 28.
See also Decisions C 008 of 2017 and C 287 of 2017.
- 29.
In this regard, see Pope Benedicto XVI (2006).
- 30.
When religious beliefs and practices are not only benevolently accepted but also recognized as something good in themselves, it is possible that “the destabilizing presumption of religion for democracy is inverted and becomes a benevolent presumption of its ethical and cognitive contribution to society” (Garzón Vallejo 2012).
- 31.
As would be the case, for example, in establishing that homicide is a crime because the Bible or other sacred texts says it is, rather than doing so because it infringes upon the dignity of human beings. The former is contrary to secularity, but not the latter, although it is an obvious fact that the majority of religious faiths condemn homicide. The secularity of the State does not mean, therefore, that so as to avoid encompassing religious doctrines in legislation, the State cannot prohibit theft, homicide, and rape simply because practically all religious doctrines do so see González del Valle (2005).
- 32.
This is what happened in Colombia with the Adventist Church, for which Saturday was officially recognized as the weekly day of rest (see Article XXIII of the Convenio de Derecho Público No. 1 of 1997, Decree 354 of 1998).
- 33.
On the other hand, the pretension of a “secular” or “neutral” morality is simply utopian. Decisions are made by concrete persons and can never be “neutral” since they correspond to a certain vision of life, which is more likely agnostic or atheistic than religious, but which takes sides in any case, so it is difficult to speak of neutrality. Navarro-Valls has noted that when religious beliefs are marginalized in the social sphere, the space has been occupied by ideologies that often tend to turn into “quasi-religions” that demonstrate the same intolerance for which some religious manifestations have been criticized (Navarro-Valls 2000).
- 34.
Which does not mean taking sides in favor of a given sports team or artistic group.
- 35.
See Navarro-Valls (2000).
- 36.
In Decision C 948 of 2014, for example, in addition to the “secular” motivations justifying homage to Saint Laura Montoya (“a whole life dedicated to the defense and support of the disadvantaged”), the impact of her canonization is recognized to be not only touristic (another undoubtedly “secular” reason), but religious as well. The religious factor therefore takes on its own specific significance.
- 37.
See Viladrich and Ferrer Ortiz (2004).
- 38.
See Martín de Agar (1995). We follow the pagination of the version available at http://bibliotecanonica.net/docsaa/btcaai.pdf (visited 20 November 2017). Regarding the right to religious freedom in Colombia, Article 4 of the Religious Freedom Act declares that: “The exercise of rights connected to freedom of religion and of worship is limited only by protection of the right of others to exercise their public freedoms and fundamental rights, as well as safeguarding the safety, health and public morality, constituent elements of public order protected by law in a democratic society.”. See also Prieto (2008).
- 39.
See Martín de Agar (1995).
- 40.
See Palomino (2011).
- 41.
See Martínez-Torrón (2014).
- 42.
Although the authors refer specifically to the Spanish system, we believe its considerations can easily be applied in the Colombian context.
- 43.
We recall some more significant statements. Decision C 350/94: “A State that is defined as ontologically pluralistic in religious matters and that also recognizes equality among all religions (Political Constitution, Articles 1 and 19) cannot at the same time establish an official religion or establish the legal preeminence of certain religious creeds. It is therefore a secular State;” Decision C 152/03: “By virtue of the principle of pluralism and cultural diversity, the State, in fulfillment of its functions, cannot place itself at the service of a particular religious faith. Nor can the State discriminate other religions when it intervenes to regulate the exercise of individual and collective rights regarding matters of religion and worship;” “Colombia is a State with a predominantly secular orientation, based on religious pluralism;” Decision C 1175/04: “In a secular State it is clear that the primary values imposed are those of plurality and tolerance;” Decision C 817/11: The “principle of pluralism,” the “basis of fundamental rights, implies recognizing the equal validity of different ethical and moral formulas existing in society;” The “principle of religious pluralism (…) prevents the imposition of a particular creed or the recognition of any religion as that of the Nation;” The “mandate of democratic pluralism” means “to assume and promote the fact that in society there are different ways of understanding ethics, morality and, in general, different axiological scenarios, all of them equally valid and with no other limitation than the validity of fundamental rights” (ibid.). In summary, the “central concepts for resolving legal problems relating to the religious question are the lay or secular State and religious pluralism.” This was repeated more recently in Decision C 224/16: “The Colombian State can be classified in the category of secular State (…), based on religious pluralism.”
- 44.
The complete text reads as follows: “Colombia is a social state under the rule of law, organized in the form of a unitary republic, decentralized, with autonomy of its territorial units, democratic, participatory, and pluralistic, based on the respect of human dignity, the work and solidarity of the individuals who belong to it, and the prevalence of the general interest.”
- 45.
See Hervada (1979).
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Prieto, V. (2020). Colombia as a Secular State. 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_8
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