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Symposium 2017: Brazil
Image for Symposium 2017: Brazil

by Gaylee Coverston, Symposium Volunteer

Odacyr Prigol, chair of the Curitiba chapter of the J. Reuben Clark Law Society and Managing Partner of Prigol Advogados Associados, moderated the session on Brazil. He welcomed the audience, thanked the university and introduced the delegates from Brazil. 

Daniela Araujo Espurio, a senior lawyer in the Real Estate and Litigation Department at Cerqueira Leite Advogados, has two post graduate degrees, one in Real Estate Business from Fundacao Getulio Vargas and another in Public Law from the Catholic University of Minas Gerais. She has become very devoted to the cause of Religious Freedom. Daniela opened her speech discussing the issue of religious intolerance in Brazil. Pope Francis has said, “The Future is in the respectful coexistence of diversity, not in the homologation of one single theoretically neutral thought. It becomes, therefore, indispensable to recognize the fundamental right to religious freedom in all its dimensions.” One of the most important opportunities of this conference is to break the silence and open a dialogue regarding current experiences from representatives of various countries, particularly religious leaders, educators, and legislators with the purpose of finding a way to inhibit violence. Brazil, as a secular state, constitutionally declares non-interference regarding creation and function of religious entities. In her interactions and friendships with people of all faiths, Daniela has learned that a person should not be judged by their beliefs nor a religion judged by a single person or a group of persons intent on violence using distorted concepts of religion as reasons to perpetrate violent acts. Religious violence in Brazil is on the rise, particularly violence against Afro-Brazilian and Muslim religions, and the violence aims to silence its victims. As an example of one of these acts, an Umbanda and Candomble place of worship was desecrated, the leaders assaulted, and the participants threatened. Interfaith groups and state and national leaders have increased their united fight for religious freedom. Religious freedom exists because of enacted laws in Brazil and every citizen needs to be aware of the risks to said freedom that such violence embodies.  Countries are also uniting under international treaties to protect this innate right. She cited current international laws and treaties establishing religious freedom. She stated that citizens must report incidents and require police and other government entities to uphold these laws. However, it is up to each individual to exemplify respect for all belief systems and to help those who do not to recognize the need for respectful coexistence. Daniela also discussed Brazilian law establishing public education as non-confessional or without a specifically established religious education. However, on the 27th of September, by majority vote of the Ministers of the Supreme Federal Court, public religious education was declared confessional and public-school teachers allowed to preach their own religious precepts and influence students in school. Intolerance exists due to lack of understanding. Religious education in schools should be historically or theoretically presented with the intent to demystify misconceptions that lead to hate or contempt of any religion and promote respect for all beliefs. This new decision is cause for great concern and could cause greater problems for religious freedom in Brazil rather than improving the situation. Daniela concluded that religious freedom is one of the most valuable instruments for maintaining equality and human dignity. As this inalienable right is carefully defended and valued, the opportunity for peaceful coexistence increases dramatically.

Aroldo Cavalcante, former city attorney of Recife, managing partner of Barreto Cavalcante Advogados and the J. Rueben Clark’s Area Director for South America, is a member of the Law and Religious Freedom Committee of the Brazilian Bar Association. He began his presentation with these quotes from the American case of Thomas versus Review Board, “The determination of what is belief or religious practice is, in many instances, a difficult and delicate task. However, the resolution of this issue should not take into account the judicial perception of beliefs or practices. Religious beliefs need not be acceptable, logical, coherent or understandable to others, in order to merit the protection of the first amendment.”  Brazil, since 1890, established the concept of religious freedom in its constitution and currently defines religious freedom and governmental application in article 19 of the 1988 constitution, which Cavalcante quoted. Although the greater percentage of the country is Catholic, Brazil is officially a secular state. However, Cavalcante agreed with Babalawo Ivanir dos Santos that being a formally declared secular state is not enough. Brazil, unlike Mexico, Argentina, or Spain, has no legislation regarding the exercise of religious freedom. This being said, judicial decisions can sometimes result in disseminating, to a greater extent, disrespect and intolerance for other religions. Cavalcante focused on two aspects, the actual freedom to believe and the guarantee to not be deprived of one’s rights due to religious beliefs. Belief as an inner consciousness is always free. Legal regulations cannot impede human beings from thinking or believing in a particular way or in a particular divinity. Freedom of belief not only protects an individual’s right to believe as they choose, but also to live their lives accordingly, practicing their beliefs in active, external demonstrations. At times, a person’s external profession of their beliefs can be contrary to practices within the State. Currently there are multiple cases regarding holy day observance in Brazil and the judicial treatment of this issue lacks uniformity. Some religions regard Saturday as their Holy Day. In Brazil, state educational exams are held on Saturdays. In an attempt to be able to observe their Holy Day, while not being disadvantaged educationally or professionally, cases have come before the court to petition an alternative day for state exams. The judicial decisions have varied greatly. Cavalcante quoted article 18 of the Universal Declaration of Human Rights and the UN’s Resolution 36/55 that clarifies the rights of conscience/religion and its application in daily life, one of those being the observance of a Holy Day or day of rest. “The right to freedom of thought, conscience, religion or convictions shall in particular include the following freedoms: h) To observe days of rest and to celebrate festivities and ceremonies according to the precepts of a religion or belief.” One judgement sided with the plaintiff, stating, “The purpose of the foregoing standard is to establish the guarantee that no one will be obliged to act contrary to their own beliefs or religious principles. The Brazilian State as a secular entity corroborates that thought, assuring religious freedom jointly with exercising citizenship.” Yet another judgement saw the exception as giving special preference to one religious entity. “There is no law or any other legal rule, even if general and abstract, that authorizes or determines the application of tests in an alternative time to benefit adherents of religion, groups or associations of any kind.” This discrepancy regarding the issue establishes the need for judicial action until a better solution is achieved. Brazil is working toward true religious freedom.  Each step is an attempt to protect the freedoms of its citizens. He finished by quoting Leo Tolstoy, “If I know the way home and am walking it as though drunk, it doesn’t cease to be the right way because I am staggering from side to side. If it is wrong, then show me another way…. Do not rejoice in my error, instead give me your help and support.” Brazilians and their government are moving in the right direction, even if they are staggering along the way.

Valdetario Monteiro, a lawyer who specializes in business law and taught public law at Christus School of Law in Fortaleza, has held many positions. He is a member of the Ceara Academy of Legal Letters and the Institute of layers of Ceara as well as the Brazilian Bar Association. He was General Secretary, President of the Ceara chapter and also Federal Council for the Brazilian Bar Association. He currently serves as Advisor to the National Council of Justice. Valdetorio first opined on properly defining the terminology “Freedom of Religion” which has come to refer to the idea of tolerance for different systems of belief and “Freedom of Worship” which has come to mean individual liberty of conscience or devotion. Throughout history this concept of freedom has been limited or misunderstood, impacting even the freedom to come and go.  Due to its importance, Religious Freedom should be understood as freedom of conscience, belief and opinion upon which a free society should be founded.  The question of religious freedom is complex, necessitating an interdisciplinary approach involving not only juridical science but also history, theology, anthropology, religion and philosophy. The constitutional history of Brazil and religious freedom in Brazil are interconnected as each new constitution addresses this issue in a slightly different way, expanding and redefining what religious freedom entails. Valdetorio touched on all Brazilian constitutions ending with the current constitution of 1988, which includes many rights established by the international Human Rights Treaty, ratified by Brazil. One of the fundamental rights of the 1988 constitution is freedom of religion and the reaffirmation of Brazil as a secular state that will not adopt, encourage or promote any God or religion. He continued by citing Article 5, subsection VI and VII, Article 19 subsection I, Article 150 subsection VI b, Articles 210, 213, and Paragraph 2 of 226, all specifying aspects of religious freedom. Religious freedom in Brazil since 1988 basically means the right to any belief system including atheism or agnosticism and the right to portray those beliefs in everyday life. The current legal debate comes from applying the various religious freedom principles laid out in the 1988 constitution. The everyday life issue of religious education in the public schools currently demands special attention and is a hotly contested subject. Brazil, as a secular state, does not offer religious education bound to a specific religion and tries to teach from a secular perspective. Teachers, also, cannot act as religious representatives. The hope was that this form of religious education would encourage peaceful coexistence of all systems of beliefs and allow strict neutrality from the State. However, religious freedom also imposes certain responsibilities on the State, one of those being to offer religious education as an option for those who choose to participate. Thus, public schools offer optional religious classes for students, following the Strasbourg Court concept that such elective education acts as a safeguard for democratic pluralism and freedom of belief. These courses do not measure attendance and cannot be given a specific grade. This issue of religious education has been addressed in most of the Constitutions of Brazil, as said right is an actuation of the freedom to live what one believes. Recently, by vote of the Ministers of the Supreme Court of Brazil, religious education in Brazil was declared confessional, allowing for teachers to proclaim their beliefs to students. According to Article 210 of the 1988 Brazilian Constitution, religious education, as part of religious freedom in general, should strive to be of a secular, humanistic, philosophical, and historical character. With this recent Supreme Court decision, Brazil initiates a new fight as they try to delineate how to offer religious education in a way that respects without marginalizing any confessional, interconfessional or non-confessional beliefs.

Rafael Jose Nadim de Lazari is a lawyer, a legal advisor, and a professor at the University of Marilia. He has a masters in State Theory from the University Center Marilia, a doctorate in Constitutional Law from Pontificia Catholic University in Sao Paulo and a post-doctorate degree in Democracy and Human Rights from the University of Coimbra. Dr. Nadim de Lazari began by looking at how we understand religious freedom. He proclaimed his chosen religion and emphasized the importance of coming together as multi-diverse groups, allowing ourselves walk in the shoes of each other, with the intent to search for what we have in common, to defend religious freedom, that freedom to believe.  As the academic arena is his area of expertise, research and defining issues comes naturally to him. He quoted, “And the truth will set you free,” but not necessarily will it comfort you or be comfortable for you. There are many things he agrees with in regards to religious freedom, but he spoke specifically on points of contention he views as major fallacies in need of immediate redress.  First of all, he doesn’t agree with the expression religious freedom in and of itself. The term seems insufficient in the sense that religious freedom must have equality, fraternity, and liberty as three equal and inseparable pedestals constructing said concept. Religious freedom exists only if there is equality, liberty, and fraternity. To have religious freedom we must have religious fraternity. We must fraternize in our diversity. Therefore, the term religious freedom is incomplete and needs attention. The second issue he doesn’t agree with is that Brazil is a tolerant society. Brazil has religions that are being persecuted by other religions. For all their proclaimed acceptance of religious freedom, Dr. Lazari gave various examples of intolerance and violent acts proving there is an issue in Brazil. The third issue of contention is the concept of a secular state signifying the separation of church and state. The constitution itself negates that concept as it demands that the secular state safeguards the option of religion, offers optional religious education, protects places of worship, allows the living of one’s beliefs, etc. The view of a religiously sterile state is an erroneous understanding of what the secular state is in the Brazilian Constitution. People are confusing the concept of secular with sterile. The State must respect all religions and give preference to none, without subjugating religiousness to the State. To attack religious freedom is to begin the destruction of a free society. The increasing rate of intolerance in Brazil, religions attacking other religions, is due to this lack of understanding. He also contends that the concept of “minorities” is inadequate in regards to religious freedom. Minorities are generally considered the smaller group who stands in need of protection. There are minorities that are not defenseless, the rich, for example. There are also groups that are not minorities but are still vulnerable: women and children. In terms of religious freedom, the concept should be understood through aspects of powerlessness and vulnerability, not in terms of majority or minority but as “vulnerable groups.” If religious freedom is seen only through “minority” and “majority”, where the minority is given special protection and privileges, then in Brazil that might mean that those who are Catholic, the majority, are unfairly treated. Thus, religious freedom requires all entities to be treated equally.  Another false notion, according to Dr. Lazari, is the thought that one person’s freedoms stop where another’s freedoms begin. It is very common to hear this statement in Brazil. The truth, he said, “is that my freedoms begin not where yours ends but exactly where your freedoms begin as well. I must be capable of simultaneously respecting your freedoms while engaging in my own. The only thing that truly limits my religious freedom is my own ability to respect your religious freedom and rights.” We need a common forum, not for discussing faiths and their validity or merits, but for uniting in the protection of each other. Each person’s faith and/or religion is the best for them and must be valued and respected. If we don’t respect and protect the rights of each other, then eventually our own rights will disappear. He ended with this quoted story. “First, they took the communists, but I didn’t concern myself with that because I wasn’t a communist. Then they took the socialists, but I also didn’t concern myself with that because I wasn’t a socialist. Then they took the Jews but because I wasn’t a Jew I didn’t concern myself with that. Now they are taking me, but it is too late. There isn’t anyone left to concern themselves with that.”