Academic journal article Brigham Young University Law Review

Laity and Laicism: Are These Catholic Categories of Any Use in Analyzing Chilean Church-State Relations?

Academic journal article Brigham Young University Law Review

Laity and Laicism: Are These Catholic Categories of Any Use in Analyzing Chilean Church-State Relations?

Article excerpt


Is Chile a secular state? An examination of the emergence of secularism in Chile leads to the conclusion that Chile is a country of paradoxes - paradoxes that are the result of a paradigm of churchstate relations in flux.1 For example, in 2005, President Ricardo Lagos, having received a mandate to proclaim a remerged text of the Constitution, through administrative channels eliminated the words "invocation of God Almighty," which had been included in die preamble to every Chilean constitutional text since 1810.2 But in contrast with this gesture, which we may characterize as laicism in the French style, on December 27, 2006, President Michelle Bachelet Jeria signed into law a statute declaring that the sixteenth of July would be recognized as the feast of the Virgin of Mount Carmel, and would be a national holiday in die tradition of a regime in which Church and State are united.3 Actuated by a similar attitude, President Ricardo Lagos Escobar issued a presidential decree that created a National Day of all the Evangelical Christian and protestant churches in Chile - this decree was then ratified by Congress.4 These actions do not coincide with the paradigm of a purely secular state, and we have not even spoken about the chaplains attached to the Presidential Palace.5

II. A Brief History of Constitutional Laicism in Chile

Just like all Latin-American nations, Chile's constitutional development was greatly influenced by liberal tendencies.6 For example, as early as 1884, the law making civil marriage compulsory was proclaimed.7 It is a curious law, we might say, as it defines marriage in canonical terms and does not allow for divorce, though it is also true that after die law's passage, religious marriage ceremonies no longer had civil effects.8 That same year there was an aborted attempt to separate Church from State.9 Though constitutional reform was approved by one legislative body, it had to be ratified by the succeeding one, and die succeeding legislative body never did so.10

Not until 1925 was there a reformation of the 1833 constitution - which was, in essence, an entirely new constitution. This Constitution came to light as part of a friendly agreement reached with the Holy See, and promulgated a separation of church and state that was clearly advantageous for the Catholic Church. There was an end to jurisdictionalism,11 but also to a budget for worship.12 While the Roman Catholic Church kept its status as a legal entity within public law, the non- Catholic churches were reduced to the status of legal entities within private law,13 not recognized but "conceded" by an administrative act, and therefore always at risk of being dissolved by decree.14 While the Catholic Church kept an ample "ius statuendi," the same privilege right was denied to die other confessions.15 While the Catholic Church was exempted from any kind of registration, the non- Catholic churches could not operate unless they inscribed in the Ministry of Justice.16 By means of another agreement, 1911 saw the creation of the Armed Forces Vicariate - only the Catholic Church had the right of worship and spiritual aid for die armed forces and the police.17 The access of non- Catholic pastors to jails and hospitals depended solely on the benevolence of the current government.18 The same happens today within the Armed Forces and the police.19

Not until the passage of the law of religious freedom on October 14, 1999, did some of the aforementioned problems begin to diminish.20 The text of the 1925 Constitution declared the liberty of conscience and worship, but not necessarily religious equality.21 Neither was this last matter broached in the 1999 law, which oudawed many forms of religious discrimination, but allowed the Catholic Church to retain a privileged place in Chile's constitutional order and compelled the evangelical leaders seeking equal treatment under the law to appeal to the spirit of the law, because the letter does not favor them. …

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