scholarly journals Law, State and Religious Freedom in Brazil: A Historical and Constitutional Analysis of Freedom of Belief and Religion

2021 ◽  
Vol 7 (4) ◽  
pp. 541-562
Author(s):  
Micael Fernandes Gomes dos Santos ◽  
Michely Vargas Delpupo Romanello
Keyword(s):  
Supreme Court ◽  
Religious Freedom ◽  
The State ◽  
Free Exercise ◽  
Brazilian State ◽  
Legal Perspective ◽  
Deductive Method ◽  
Freedom Of Belief ◽  
Constitutional Analysis ◽  
Federal Supreme

This research sees to discuss the position of the State regarding Freedom of Belief, under the legal perspective. In other words, as the Brazilian Constitution guarantees freedom and the free exercise of religion in its art. 5, item VI, the question is: May the Brazilian State interfere with the freedom of individual belief, or can it provide legal guarantees so that this freedom is ensured? By the deductive method and by the analysis of recent judgments of the Brazilian Federal Supreme Court in cases of extraordinary appeals, the limits of the State of action or inaction in relation to religious freedom will be upheld, concluding that the State must always ensure the sovereignty of secularity and neutrality in religious matters, observing freedom of belief. Keywords: Religious freedom; Brazilian State; Law

scholarly journals THE PROTECTION OF RELIGIOUS FREEDOM OF SUNDA WIWITAN BELIEVERS

2019 ◽  
Vol 8 (3) ◽  
pp. 391
Author(s):  
Hazar Kusmayanti
Keyword(s):  
Religious Freedom ◽  
The State ◽  
The Other ◽  
Freedom Of Belief ◽  
Verbal Violence

Sunda Wiwitan as a religion had existed prior to the other, more well known religions in Indonesia, but is currently isn’t recognized as an official religion by Act No.1/PNPS/1965. The state, as opposed to guaranteeing the freedom of belief and its practice, instead imposes restrictions on religion in this particular case, leaving the believers of Sunda Wiwitan feeling abandoned and as outcasts. As a result, many violations and discriminations are experienced by adherents of Sunda Wiwitan. One example of such discrimination is the “whiting-out” of the “religion” column in ID Cards. The result of this discrimination is difficulty in accessing civil documents, in addition to verbal violence from certain parts of the society who assume the Sunda Wiwitan belief as heretic.

Secularism and US Religion Jurisprudence

2017 ◽  
Author(s):  
Caroline Corbin
Keyword(s):  
United States ◽  
Religious Freedom ◽  
Church And State ◽  
The United States ◽  
The State ◽  
Religious Liberty ◽  
Establishment Clause ◽  
Free Exercise ◽  
Free Exercise Clause ◽  
Constitutional Jurisprudence

Religious surveys are finding greater percentages of Americans who self-identify as secular. At the same time, religious exemptions under the Free Exercise Clause have become more difficult to obtain. However, religion jurisprudence in the United States has not become more secular for two reasons. First, this greater unwillingness to grant constitutional exemptions reflects a shift in constitutional jurisprudence from “separationism” to “neutrality.” Rather than building a wall between church and state, the Establishment Clause is now interpreted to impose fewer restraints on state-sponsored religion. Second, statutes like the federal Religious Freedom Restoration Act and its state counterparts have not only reestablished separationist era levels of protection for religious liberty but increased them. The result is a religion jurisprudence where religion is accommodated more than ever, while the state has more leeway to advance religion. This combination has unfortunate consequences for both secular people and core secular values, such as antidiscrimination.

The Secularized State

2020 ◽  
pp. 220-236
Author(s):  
Ernst-Wolfgang Böckenförde ◽  
Mirjam Künkler ◽  
Tine Stein
Keyword(s):  
Religious Freedom ◽  
Religious Faith ◽  
The State ◽  
Religious Communities ◽  
Constitutional Court ◽  
Freedom Of Association ◽  
Democratic State ◽  
Federal Constitutional ◽  
Freedom Of Belief ◽  
The Right

In this article Böckenförde contrasts his concept of open encompassing neutrality (found in most Scandinavian countries and in Germany) with that of distancing neutrality, as practised in France. While the latter champions negative religious freedom, open encompassing neutrality aims for a balancing of negative and positive religious freedom. Religious freedom for Böckenförde is multidimensional and includes the right to have (or not) a religious faith (freedom of belief), to affirm (or not) this faith privately and openly (freedom to profess), to exercise (or not) one’s religion publicly (freedom of worship), and to join together (or not) in religious communities (religious freedom of association). The correlate to these individual and group rights is the open and overarching principle of the state’s neutrality towards religion and other worldviews, entailing a prohibition on the state justifying law on religious grounds. Furthermore, it requires the state not to privilege religion over non-religion and one religious faith over another. Siding with the ruling of the Federal Constitutional Court (at a time when he was not a sitting judge), Böckenförde underlines that even religious communities who reject the democratic state have the right to be recognized and legally protected. What matters is not whether communities accept or reject the state, but whether they obey or violate its laws. This was the court’s view on the Jehovah’s Witnesses, and it must also be applied, Böckenförde writes, to religious fundamentalists who do not accept the secular order, as long as they do not violate any laws.

Does the Hyde Amendment Violate Religious Freedom? Harris v. McRae and the First Amendment

1980 ◽  
Vol 6 (3) ◽  
pp. 361-372
Author(s):  
Jay Alexander Gold
Keyword(s):  
Supreme Court ◽  
First Amendment ◽  
Religious Freedom ◽  
Recent Case ◽  
Free Exercise ◽  
Exercise Challenge ◽  
First Time ◽  
The U.S

AbstractIn Harris v. McRae, the recent case in which the U.S. Supreme Court upheld the constitutionality of the Hyde Amendment, the Court for the first time was asked to consider whether antiabortion legislation respects the establishment of religion or violates the free exercise thereof. The Court held that the Amendment did not effect an establishment of religion, and found that the plaintiffs lacked standing to raise the free exercise argument.The writer explores the questions raised, agreeing with the Court's disposal of the establishment argument. He does find considerable.validity in the free exercise challenge, but concludes that the Court as presently constituted is unlikely to accept it. In addition, he believes that the Court, in its treatment of both arguments, either ignored or improperly dis tinguished earlier cases that supported the plaintiffs.

scholarly journals Supremas Cortes e Efeito Backlash: o Caso das “Vaquejadas” no Brasil

2021 ◽  
Vol 12 (12) ◽  
pp. 273-290
Author(s):  
Saul Tourinho Leal ◽  
Nara Pinheiro Reis Ayres de Britto
Keyword(s):  
Supreme Court ◽  
Federal Court ◽  
Constitutional Amendment ◽  
Federal Constitution ◽  
The Supreme Court ◽  
The Face ◽  
National Congress ◽  
The Times ◽  
Constitutional Analysis ◽  
Federal Supreme

Could the object of a law declared unconstitutional by the Supreme Court be reintroduced into the legal system this time through an amendment to the Constitution? And if this amendment is based on elements protected by the Constitution, such as cultural manifestations? The Federal Constitution of 1988 brings in its art. 2nd the separation of the Powers as an explicit stone clause. Could an amendment that admits a constitutionally based exception subscribe to a practice considered by the Supreme Court as capable of subjecting animals to cruelty? The evolution of the times and social and cultural advances are part of the transformation of society itself and this transformation can take place in accordance with the Constitution, and the Supreme Federal Court, in the exercise of its duty to guard the Constitution, preserve the stone clauses notably in the face of political initiatives that try to overcome the transformative effect inherent to the effects of the full exercise of the not majority character of constitutional jurisdiction. Thus, the present work aims to make a constitutional analysis, through bibliographic, legislative and jurisprudential review methodology of the practice of the so-called “vaquejadas” in Brazil and its consequences from a decision taken by the Federal Supreme Court that gave rise to an immediate political reaction through the approval of a constitutional amendment by the National Congress.

Liberal Assumptions in Section 116 Cases and Implications for Religious Freedom

2018 ◽  
Vol 46 (1) ◽  
pp. 113-136 ◽  
Author(s):  
Alex Deagon
Keyword(s):  
Social Order ◽  
Religious Freedom ◽  
State Power ◽  
The State ◽  
High Court ◽  
Free Exercise ◽  
Sharp Distinction ◽  
Theoretical Assumptions ◽  
The Future ◽  
High Court Of Australia

It is well known that the ‘free exercise’ and ‘establishment’ clauses in Section 116 of the Australian Constitution have been interpreted narrowly by the High Court of Australia. However, there has been limited examination of theoretical assumptions or perspectives which may have consciously or unconsciously informed this interpretation. This article argues the High Court has adopted liberal assumptions about the nature of religion and its relationship to the state in the Section 116 cases. These liberal assumptions are a sharp distinction between ‘private’ religious and ‘public’ non-religious exercise, that religious freedom is subject to state determinations of what is required for neutrality between religions, and religious freedom is subject to state determinations of what is required for social order. The article proceeds to consider the implications of these assumptions for Section 116 cases in terms of a narrowing of religious freedom and a broadening of state power, and suggests awareness of these issues may produce a more nuanced approach to Section 116 in the future.

The Religious Freedom Restoration Act and Prisons and Jails: An Assessment and a Proposal

1995 ◽  
Vol 7 (3-4) ◽  
pp. 309-327
Author(s):  
Jack E. Call ◽  
Charles Samarkos
Keyword(s):  
Supreme Court ◽  
Religious Beliefs ◽  
Religious Freedom ◽  
Supreme Court Decision ◽  
Court Decision ◽  
Legislative History ◽  
Free Exercise ◽  
The Law ◽  
Religious Freedom Restoration Act ◽  
The Impact

In November of 1993, the Religious Freedom Restoration Act (RFRA) was signed into law by the President. Its purpose was to overrule a 1990 Supreme Court decision and require government to satisfy a compelling interest test when its laws or actions place a substantial burden on an individual's exercise of personal religious beliefs. This article explores the impact of RFRA on prisons and jails. Since there was a failed effort in Congress to exempt prisons and jails from the strictures of RFRA, there is no question that RFRA applies to these institutions. The article begins by explaining the law on the free exercise of religion prior to RFRA. Then the provisions of RFRA and its legislative history are explored briefly. An assessment is made of the likely effect of RFRA on prisons and jails and its constitutionality. The article concludes with a recommendation for amending RFRA designed to insure that the free exercise rights of inmates are adequately protected, while not unduly hampering the ability of corrections administrators to run their prisons and jails safely and efficiently.

scholarly journals Laicidade, gênero e suas implicações no Estado Democrático de Direito: A necessidade de uma ecologia integral | Laicity, gender and their implications for the Democratic Rule of Law: The need for an integral ecology

2021 ◽  
Vol 6 (1) ◽  
pp. 55-65
Author(s):  
Daiana Allessi Nicoletti Alves ◽  
Wanessa Assunção Ramos
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
Female Gender ◽  
Document Analysis ◽  
The State ◽  
Inductive Method ◽  
The Political ◽  
Democratic Rule ◽  
Federal Supreme ◽  
Secular State

Em 10 de julho de 2019, Jair Messias Bolsonaro disse: “Muitos tentam nos deixar de lado dizendo que o estado é laico. O estado é laico, mas nós somos cristãos. (...) Por isso, o meu compromisso: poderei indicar dois ministros para o Supremo Tribunal Federal. Um deles será terrivelmente evangélico”. O tema do presente artigo, portanto, é o estado laico na República Federativa do Brasil diante do incitamento político de algumas religiões em detrimento de outras e a notória influência histórica que algumas crenças apresentam com relação ao aspecto do gênero. O objetivo geral é analisar como a violação ao estado laico influencia nas questões do gênero feminino e, consequentemente, viola o Estado Democrático de Direito. Para tanto, os objetivos específicos são: a) analisar o Estado Democrático de Direito e o princípio do estado laico; b) analisar os requisitos para compor o Supremo Tribunal Federal; e c) analisar a influência de crenças religiosas com relação ao gênero feminino. A metodologia a ser utilizada é de pesquisa qualitativa, por intermédio de um método indutivo com análise documental. A presente pesquisa apresentou como resultado a violação ao Estado Democrático de Direito, em 2019, acerca da laicidade do estado, que feriu diferentes princípios constitucionais. On July 10, 2019 Jair Messias Bolsonaro said: “Many try to leave us aside saying that the state is secular. The state is secular, but we are Christians. (...) Therefore, my commitment: I will be able to appoint two ministers to the Federal Supreme Court. One of them will be terribly evangelical.” The theme of this article, therefore, is the secular state in the Federative Republic of Brazil, in view of the political incitement of some religions to the detriment of others, and the notorious historical influence that some beliefs have in relation to the aspect of gender. The general objective is to analyze how the violation of the secular state influences women's issues and, consequently, violates the Democratic Rule of Law. Therefore, the specific objectives are: a) to analyze the Democratic Rule of Law and the principle of the secular state; b) analyze the requirements to compose the Federal Supreme Court; and c) analyze the influence of religious beliefs regarding the female gender. The methodology to be used is qualitative research, through an inductive method with document analysis. The present research presented as a result the violation of the Democratic Rule of Law, in 2019, concerning the secularity of the state, that hurt different constitutional principles.

scholarly journals A efetividade do Mandado de Injunção: investigação empírica sobre as decisões do Supremo Tribunal Federal e seus impactos na legislação

2021 ◽  
Author(s):  
Henrique Augusto Figueiredo Fulgêncio ◽  
Alexandre Araújo Costa
Keyword(s):  
Statistical Analysis ◽  
Supreme Court ◽  
The State ◽  
The Other ◽  
Observational Research ◽  
Primary Data ◽  
Judicial Activism ◽  
Public Servants ◽  
Other Hand ◽  
Federal Supreme

Resumo: O artigo versa sobre o mandado de injunção (MI), ação instituída para combater a inconstitucionalidade por omissão do Estado. Objetivou-se avaliar os resultados produzidos pelos MIs julgados procedentes pelo Supremo Tribunal Federal (STF) até 05/10/2019, de modo a identificar quantas e quais normas constitucionais foram regulamentadas em cumprimento às decisões neles proferidas e averiguar se o instituto é especialmente efetivo para os servidores públicos. O estudo considera, ainda, a modificação jurisprudencial que permitiu ao STF suprir omissões legislativas, apontada como responsável por solucionar a situação de inefetividade até então observada acerca do instituto. Trata-se de pesquisa quantitativa, censitária e observacional, desenvolvida mediante coleta de dados primários disponibilizados pelo STF. A análise dos dados relativos aos MIs envolveu seu cruzamento com informações concernentes às normas editadas em cumprimento às decisões proferidas nesses processos. Como resultado, observou-se a baixa efetividade do MI tanto em relação aos direitos de servidores, quanto aos demais direitos, situação que persistiu após a alteração jurisprudencial mencionada, a qual ensejou, por outro lado, o desempenho de um ativismo judicial bastante seletivo pelo STF.Palavras-chave: Mandado de Injunção, Supremo Tribunal Federal, análise estatística, decisões de procedência, servidores públicos. Abstract: The article deals with the writ of injunction (WI), an action instituted to combat unconstitutionality by omission of the State. Its objective was to evaluate the results produced by the WIs whose requests were granted by the Federal Supreme Court (FSC) until 10/05/2019, in order to identify how many and which constitutional norms were regulated in compliance with the decisions handed down and to verify if the institute is especially effective for public servants. The study also considers the jurisprudential modification that allowed the FSC to remedy legislative omissions, which was identified as responsible for resolving the situation of ineffectiveness hitherto observed regarding the institute. It is a quantitative, census-based and observational research developed through the collection of primary data provided by the FSC. The analysis of the data related to the WIs involved their crossing with information concerning the rules issued in compliance with the decisions rendered in these processes. As a result, the low effectiveness of the WI was observed both in relation to the rights of servants and other rights, a situation that persisted after the mentioned jurisprudential change, which, on the other hand, resulted in the performance of a very selective judicial activism by the FSC.Keywords: Writ of Injunction, Federal Supreme Court, statistical analysis, decisions of granting the requests, public servants.

scholarly journals Solemnisation of Same-sex Marriage and Religious Freedom

2014 ◽  
Vol 16 (3) ◽  
pp. 283-305 ◽  
Author(s):  
Rex Ahdar
Keyword(s):  
New Zealand ◽  
Religious Freedom ◽  
The State ◽  
Same Sex ◽  
Same Sex Marriage ◽  
England And Wales ◽  
Free Exercise ◽  
Legal Challenge ◽  
Western Nations ◽  
The Right

Same-sex marriage is legal or likely to be legalised in many Western nations. One important safeguard invariably incorporated in the legislation providing for same-sex marriage has been an exemption for religious ministers who object to solemnising such marriages. Another category of potential objectors consists of marriage registrars, commissioners or celebrants employed or appointed by the state. By contrast, an accommodation grounded in the right of religious freedom and conscience for these governmental celebrants has not been granted. This article examines the introduction of same-sex marriage in three jurisdictions – England and Wales, New Zealand and Canada. It analyses the precise ambit of the exemption for religious celebrants, considers the vulnerability of such exemptions to future legal challenge and questions the validity of denying free exercise accommodation to state-appointed celebrants.

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