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The lay state and religious freedom in Mexico: the debate on amending the constitution.


On March 28, 2012, after spending two years held up in the Mexican Senate, an amendment to Article 40 of the Constitution was passed by a necessary two-thirds majority. This amendment adds the word "lay" ["secular"] to the existing language describing the Mexican republic: "It is the will of the Mexican people to constitute themselves into one representative, democratic, lay [laica] and federal republic.... "The proposal to modify the language had appeared before the Senate two years ago, but the approval process lagged until recently. To be ratified, this change needs to be approved by a majority of the state legislatures, which will likely happen in the next few months.


On the same day, the Senate also approved a controversial amendment to Article 24 of the Constitution on freedom of religious beliefs and practices. The initiative, pushed for years by a Catholic hierarchy calling for greater religious freedom, does not necessarily meet the hierarchy's full expectations, but changing this article does open up the possibility of amending other articles that the hierarchy deems restrictive of its freedom.

The previous version of Article 24, in effect since 1992, read,

"Every man is free to profess the religious beliefs that he pleases and to practice the corresponding ceremonies, devotions or acts of worship, provided that these do not constitute an offense penalized by law. Congress may not issue laws that establish or forbid any religion. Religious events of public worship shall normally be held in houses of worship. Those that on an exceptional basis are held outside houses of worship shall be subject to corresponding laws."

Article 24 is now worded as follows:

"Every person has the right to freedom of ethical beliefs, of conscience, and of religion, and to hold or adopt, as appropriate, the beliefs of his or her choice. This freedom includes the right to participate, individually or collectively, publicly or privately, in the corresponding ceremonies, devotions, or acts of worship, as long as these do not constitute offenses penalized by law."

There are a number of important shifts in language, such as the addition of a caveat that "no one may use public acts in exercise of this freedom for political purposes, for proselytizing, or for political propaganda" to the new version. The new amendment reiterates that events of public worship shall normally be held in houses of worship, with exceptional acts of worship (held outside the houses of worship) subject to regulatory provisions. How can we understand these amendments and their significance, not only for Mexico but for the rest of Latin America as well?

A political, social and intellectual debate has opened up in recent years, both in Mexico and in other parts of the world, as to the best system for achieving equality and nondiscrimination among religions, toward religions, and throughout all of society. Some religious leaders and rightwing parties claim that a government that ensures complete religious freedom is the best way to develop all spiritual and confessional opportunities. Others, by contrast, believe that the best way to ensure religious freedom, as well as equality among all believers, is a "lay" or secular state that regulates public expressions of religious beliefs, one that neither favors nor opposes any religion. This latter perspective would build a lay or secular government that, in fact, goes beyond the separation of church and state to establish true equality and nondiscrimination based on the independence of the political sphere from the religious.

Those who advocate this second position believe that true religious freedom has never existed historically, nor does it exist today, unless some form of lay or secular government is in place. Conversely, whenever a religion has been able to influence or determine public policy, or when the state attempts to meddle in churches' internal affairs and shape believers' minds, religious freedom ends up suffering.

THE CHURCH AS A PERFECT SOCIETY The Vatican-directed global strategy of pushing a particular conception of religious freedom is an important trend that manifested in the Mexican debate about freedoms and the role of the State. Why did Mexico's Catholic hierarchy want to change Article 24 of the Constitution? This article seemed to guarantee full freedom for people to believe whatever they want and to practice their religion, with only minimal restrictions on external events of worship (considered exceptional), based on the need for government to regulate the public activity of organizations and to maintain public order. While replacing the concept of "freedom of religious belief" with that of "religious freedom," may not seem important, there are crucial differences between the two. Its denials notwithstanding, the Catholic hierarchy's main objective was to incorporate into the Constitution an element that would later open the door to other claims, e.g., religious education in public schools, the right to own electronic media companies and the freedom to participate openly, not only in political affairs, but in elections. This notion of religious freedom--as conceived by the Catholic hierarchy--carries the hidden claim that no government may place any legal limitations on the activities of religious organizations. Where does this sweeping affirmation come from?

The key to understanding how the concept of religious freedom has evolved in Catholic-majority countries lies in the doctrine of the church as a "perfect society," which was fully developed in the nineteenth century. Archbishop Roland Minnerath, a theologian and one of the most renowned Catholic specialists on this question, described "the doctrine of the church as a perfect society" in this way:

"Spiritual society and temporal society have been desired by their common Author, with one independent of the other, but also placed in a hierarchy based on the unequal elevation of their purposes to perform the role that is assigned to each in God's salvationary design."

The liberal formula of"a free church in a free state" was articulated by Camillo Benso, Count of Cavour in the mid-19th century. The problem is that, at roughly the same time, the Catholic popes advanced their idea of a relationship of legal equality between church and state, and even one where the material was subordinate to the spiritual. From Pius IX to Plus XII, the Vatican developed the idea of the church as a perfect society in which according to Minnerath, "the temporal order is subordinate to the spiritual order 'in accordance with a system of relationships analogous to the union in man of body and soul.'" By this reasoning, the church refuses "to bend to the changing demands of civil matters, since 'the constitution and organization of Christian society are completely immutable.' And the church 'holds on to its established independence in the broad interest of souls.'"

The main problem with the perfect-society doctrine is that it is based on freedom of "the church"--the Catholic church--not on freedom of "religion." This reasoning cannot possibly be squared with civil society. It was not until the emergence of totalitarian states in the WWII era that the hierarchy began slowly and gradually to abandon the issue of ecclesiastical freedoms in favor of that of the fundamental rights of man.

Until r965 the position of the Catholic church was basically that of most churches in the eighteenth century. Religious dissidents had no rights of their own in society, and their legal status varied according to social and international circumstance. But in that year, the Second Vatican Council issued its Declaration on Religious Freedom, Dignitatis Humanae, opening up the possibility for religious freedom to be claimed for all people, regardless of whether they are wrong or right, from the moment they obey the dictates of their conscience. The state's mission was now seen as protecting the inalienable rights of people--these are social and civil freedoms, hence the subtitle, "On the Right of the Person and of Communities to Social and Civil Freedom in Matters Religious." This also means that the church agrees that these freedoms are not absolute, but rather their aim is the common good. The state may then intervene in three cases where public order is jeopardized: (i) when public peace is under threat; (2) when public morality is violated; or (3) when the rights of third parties are violated, i.e., when a person's right to religious freedom is curtailed by others' exercising the same right.

I would simply like to stress two main points that I believe will help clarify the current state of religious freedom in Latin America. The first is the relationship between "freedom of the church" and "religious freedom" as conceived in Catholicism. The second has to do with the acceptance of the Second Vatican Council's new approach, as well as the continuation of traditional thinking in this regard.

Indeed, Dignitatis Humanae intentionally does not take church doctrine as its starting point, but rather the declaration focuses on the world external to the church. According to Minnerath, once the focus is on the Catholic church itself, however, "the guiding concept is no longer 'religious freedom' but rather 'freedom of the church.'" The archbishop-theologian, who was part of the Second Vatican Council, described a conservative faction there that clung to the idea of an "internal authority" from which the church's claim to religious freedom sprung. As a result, there are two distinct treatments of the church's freedom at work within the Declaration:

"On one hand, its basic freedom as any community of believers to experience its faith in communal fashion, and on the other, its freedom based on its divine vocation and specific mission."

Is this not a sneaky way of returning to the perfect-society doctrine? Is it truly possible in practice for two doctrines with such contradictory logics, such as the perfect-society doctrine and the religious-freedom doctrine, to coexist in the civil and social context? This is the dilemma with which the Catholic church constantly struggles, and which it can't quite resolve.

In any event, it is with this equivocal position on religious freedom that the Holy See has relaunched a challenge to Latin American political societies. In a stance reminiscent of the old perfect-society theories and the two sovereign powers, the Catholic hierarchy questions the sovereignty of a lay or secular state that seeks to regulate social life and that of the churches in it. The governments of Latin America--weak, hesitant and accustomed to an alliance with the religious authority--cannot quite arrive at a clear philosophical and ideological position vis-a-vis a Catholic hierarchy that is striving in various ways to return to the state and public life--if indeed it ever left.


Some people wonder whether the changes to Article 24 represent a step back from the "Estado laico"--at least as we know it in Mexico--even though politicians and religious leaders deny this. The amendment was intended to open up a pathway toward substituting the terms of "freedom of belief" and "freedom of worship" for the hierarchy's preferred term--an equivocal notion of "religious freedom," which the Catholic bishops define not only as the right to believe what one wants, but also as a number of specific demands, including that religious education should be offered in the public schools.

A few months ago, at the 92nd Plenary Assembly of the Mexican Episcopal Conference, Bishops Victor Rodriguez and Alfonso Cortes, general secretary and head of pastoral education for the organization, respectively, stated that "the state has the obligation to provide a religious education to children if their parents so request." Bishop Rodriguez reportedly made the clarification that "the Catholic church is not seeking that [religious] courses be given in public schools or that the Constitution be amended to include religion in education," and that "it does not promote religious education in the schools, since this can be provided in the parishes and at home." But rather than a push from the church hierarchy, the bishop instead saw the movement for religious education in schools as coming from non-clerical sources, from laypersons who are "not bound by the same restriction and can embark on the full legislative path to allow parents to secure religious education for their children in the schools." This legislative path can include taking the bishops' very flexible view of "religious freedom" into the Constitution, so that later they could demand the right of parents to have their children receive a religious education in the public schools.


The Catholic bishops, the conservative administration of Mexican President Felipe Calderon and the Institutional Revolutionary Party, which promoted the amendment, justify their position by claiming Mexico's laws on religion must fall in line with international treaties and the human rights standards established in these treaties. Some political leaders and legal specialists cite the Mexican government's constitutional obligation to abide by Article 12 of the American Convention on Human Rights, which recognizes both the freedom of conscience and of religion, with the manifestation of religion limited by concerns of public safety and others' rights.

There is some confusion about where to draw these lines. For example, it is questionable whether the right of churches to own electronic media companies can be described as a "human right." Nor is it obvious that restrictions on the political activity of religious leaders are violations of human rights. And, though it is true that parents must be allowed to raise their children in the religion of their choice, no international legal document states that religious instruction must be provided in public schools. There is nothing in the international agreements signed by Mexico that says this right must be guaranteed through the public schools. Up until now, this education has taken place in the home, in houses of worship, or in religious schools, since such is the will of the Mexican people. These practices, and the Mexican Constitution itself, are already in line with international standards. This is why many people said that Article 24 did not need to be amended. Not for those reasons, at least.


There is much confusion about the right of the faithful to "go out from the temples," and I believe the confusion has been intentionally provoked. As far as I can tell, no one wants believers to be unable to express their beliefs publicly or collectively. The 1917 Constitution stated that "all religious ceremonies of public worship shall be held precisely within the houses of worship, which will always be under the supervision of the law." But the Constitution was amended 20 years ago, on January 28, i992, to state that "religious ceremonies of public worship shall normally be held in houses of worship." [Emphasis added.] It then adds that "those that, on an extraordinary basis, are held outside houses of the worship will be subject to regulatory law." The recently approved amendment repeats this wording.

If we look closely at this phrasing, it only refers to religious ceremonies of "public worship." No one is trying to interfere in private acts of worship, which are just that, private. The only thing it does state is something normal in any part of the world: that ceremonies of public worship must be regulated by the public authority. There is nothing here hostile to true religious freedom, whether private or public.


"Two years ago, during the debate over proposed amendments to article 40, Gustavo Madero, the Senate leader for the National Action Party (PAN), stated: "The state is secular (laico) and must continue to be secular (laico). In the PAN Caucus we are secular but not delusional, and we don't want to fall for the provocations that are behind the proposal's stated rationale in its current form." That same day, Archbishop Carlos Aguiar Retes, chairman of the Mexican Episcopal Conference, said he would initiate a "dialogue" with political sectors "in search of full religious freedom." The archbishop of Leon, while stating that "the church in Mexico recognizes the advantage of establishing 'un Estado laico,'" also called for "overcoming the hostile laicism or secularism that persecutes the Catholic church" and said that "full religious freedom, not freedom of worship, is what the Catholic hierarchy has demanded."

Two years later, the PAN-controlled Senate had not approved the constitutional amendment establishing the secular nature of the Mexican government. It wanted to pass the amendment to include "freedom of ethical beliefs, of conscience, and of religion," before it would then move on with the proposal on the lay or secular nature of the government. Catholic leaders insist, though not always explicitly or categorically, that this amendment has nothing to do with secular education, that the public school system remains "laico" in the sense of nonreligious. After spending two years holding up the amendment to Article 40 of the Constitution, the Senate finally passed it. A single adjective, "secular," [laico] should now determine how we understand the role of religion in public affairs in the Republic of Mexico. "Laicity" strengthens the historical principle of separation of church and state, which was already established in Article 130, but it goes beyond this to add basic concepts such as freedom of conscience, independence of politics from religion (which involves more than mere separation of church and state), equality of individuals and organizations before the law and nondiscrimination. Laicity also entails a transition from a system where authority is based on sacred power to one that is essentially based on popular sovereignty (as stated in Article 39 of the Constitution), and on the will of the majority, but also on the rights of minorities.

Behind the scenes, the original initiative to amend Article 24 was actually a serious counterreform effort orchestrated by the Catholic hierarchy, long promoted by the VAN and submitted and supported by some members of the Institutional Revolutionary Party (PRI). Ultimately, the wording of the amendment was changed thanks to the intervention of the leftist parties in the chamber and some members of the PRI who did not agree with the gift that was being offered up to the Vatican and the Catholic bishops with the religious freedom language. Thus, what started out as a crude attempt to undermine the meaning of the lay State ended up opening the door to constitutional laicity of the Mexican Republic. Not everyone was in agreement with the final wording of Article 24. Those opposed to freedom of ethical beliefs, referenced in the new version, ignore the fact that the most widely disseminated statements on laicity refer to freedom of conscience and the freedom to follow a religion, but they also refer to philosophical (i.e., ethical) beliefs, which would include those held by agnostics or atheists. They also ignore the fact that freedom of conscience is crucial to the lay state and, in that vein, to all people who advocate sexual and reproductive rights, such as those who defend a woman's right to choose, according to her conscience, what will happen to her own body and whether to legally end a pregnancy. Of course, this article also opens the door to legislation on conscientious objection. And it cannot be forgotten that Article 24 itself states that "no one may use public acts in exercise of this freedom for political purposes, for proselytizing, or for political propaganda." The persistent opposition to this article by some groups is due to both historical and current circumstances related to the Catholic hierarchy's multiple attempts at counterreform.


Are defenders of laicity and of sexual and reproductive rights naive, or has the time come to allow freedom of conscience, freedom of belief and freedom of religion to find their place in Mexico's Estado laico?

A noteworthy feature of the debates on both amendment proposals is that none of the political or religious leaders in question has denied the existence and validity of laicity in Mexico. But the recognition of secularism is only the start of a long road, full of discussions, choices and decisions as to what we want that to mean. Some media outlets and certain religious leaders now profess to be outraged by the alleged leftist anticlericalism of many Mexicans, but it must be recognized that laicity and its many freedoms prevailed in spite of the determined opposition of the Catholic church. To be honest, I am not sure that circumstances have changed.

The French sociologist of Catholicism Emile Poulat affirmed:

"We live in a regime of rights and freedoms that constitute our 'public laicity' with its guarantees assured to all. An autonomous reality, which has taken shape independently of the secular idea, without which this reality would not exist, and of the Catholic religion, which has done everything it can so that it doesn't exist. ... Our public laicity is thus the result of a political wisdom and a subtle balance which forces no one to sacrifice his or her principles, but which proposes to all people a new art of coexisting."

Thus, we can ask ourselves the final question: Should we continue to be vigilant toward those who have long refused to accept plurality and diversity, or can we say that the war is over? Many of us would like to think we have reached that point in Mexico. However, we continue to see a church that is accustomed to religious hegemony and to living within the state, and a belligerent church hierarchy that seeks not only to influence legislation and public policy but also to curtail those freedoms that it does not approve of or share. Can we think, with a stronger lay or secular state, that the time of unlimited religious freedom has arrived despite itself?


Related Article:

Lay vs. Secular: When Semantics Matter

Although very similar concepts, it is very important to distinguish between the terms "lay", "laicity" or "laicization" and "secular", "secularity" or "secularization". The use of the word "lay" and its derived words ("laicity", "laicization"), in the sense of a secularization of political institutions, took place in the context of the Latin continental European countries, and in other latitudes such as Canada, Latin America and the Caribbean. Lacity and laicization are recent terms practically unknown in the English language and commonly used in Latin countries almost as a synonym of the concept "secularization." Although, in fact, its semantic contents and history are diverse, it can be said that both terms are in many ways related.

While secularization has to do with social differentiation, worldliness, privatization of religion and reconfiguration of beliefs, laicization concerns the process of separation of religion from public affairs in order to safeguard freedom of conscience, equal treatment and non-discrimination, independently of the particular beliefs of everyone. [See my entry "Laicization" in Mark Juergensmayer & Wade Clark Roof (Editors), Encyclopedia of Global Religion, London: Sage, 2012), pp. 685-687.] The distinction between "lay" [laico] and "secular" is very relevant because the concept of "laicity" has a more neutral and impartial sense than the concept of secular regarding a political approach and treatment of religions.

ROBERTO I. BLANCARTE is a Full Professor of the Center[or Sociological Studies at El Colegio de Mexico, in Mexico City. He has served as counselor at the Mexican Embassy to the Holy See and as chief of staff of the Mexican Undersecretariat of Religious Affairs.
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Author:Blancarte, Roberto J.
Geographic Code:1MEX
Date:Jun 22, 2012
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