Normative Development of Religious Freedom in Latin America: Counter-Transfer of Religious Policies
Camila A. Sánchez Sandoval
Santuario de Las Lajas, Ipiales, Colombia by Diego Delso (CC BY-SA 4.0)
The following essay is reprinted and adapted on Canopy Forum in collaboration with the journal Derecho en Sociedad, a biannual electronic publication that is free and open access. Their issue 18(2) features full length articles in Spanish and English. Read Sandoval’s long-form essay on Religious Freedom in Latin America here.
In this article, I explore the expansion of religious freedom in Latin America from a normative perspective, focusing on the public policies implemented in recent years. While this research covers several Latin American countries, Colombia stands out as a specific case due to its pioneering efforts in establishing a comprehensive public policy on religious freedom and worship. To this end, I review three key areas: constitutional frameworks, laws specifically related to religious freedom, and the national development plans of recent presidents across the region, aiming to identify whether a defined government agenda on religious freedom exists. This analysis is particularly relevant as it positions the discussion of religious freedom within the framework of public policy—an area that has been under-explored in the literature on this right. Despite constitutional efforts to guarantee religious freedom in Latin America, there is still a need to develop policies tailored to local contexts that recognize religious diversity and include concrete actions to protect this right.
Lastly, this article contributes to the category of “expansion of religious freedom” that I developed in my doctoral thesis, highlighting the importance of enacting laws and their inclusion in governmental development plans. Furthermore, it seeks to encourage future research on the counter-transfer of religious policies and the use of the public policy approach in analyzing religious freedom and the politicization of this right in the region.
Conceptual Approach to Religious Freedom and Public Policies: Expansion and Challenges of Counter-Transfer
Religious freedom is a relatively new concept that encompasses a set of liberties related to the “spiritual and material” practice of any belief, non-belief, spirituality, or religion. Göran Gunner emphasizes the importance of clearly defining each conceptual approach related to religious freedom from a human rights perspective.
According to Henry Duarte, freedom of belief, more commonly known as freedom of worship, involves the right to publicly practice the acts and ceremonies of a religion or belief through proselytism, gatherings in public or private places, and expressions in public spaces. This form of freedom is an external manifestation of freedom of conscience. Salvador Franco, on the other hand, defines freedom of thought as the right to create and express one’s ideas or to adhere personally to a particular ideology. Moreover, freedom of conscience, as described by Franco and Duarte, refers to the right to profess or not profess a religious belief, to change it, and to manifest it. This freedom includes the option to act according to our beliefs, live by them, and express them, whether publicly or privately.
In my theoretical proposal, I introduce the concept of “expansion of religious freedom,” which I understand as an adaptation of the principle of progressivity in human rights applied to laws and regulations in all countries. As part of my doctoral thesis, I propose that the expansion of religious freedom encompasses any increase, extension, or enhancement concerning religious freedom from a normative (legal-judicial) perspective. This includes the promulgation of any public policy document issued by state actors, such as constitutional courts, courts of justice, legislators, and government officials, even if they are not necessarily binding on all individuals or groups. In general terms, the expansion of religious freedom, and any other right, aims to increase the application and protection of these rights for a greater number of individuals, groups, contexts, or territories.
My stance on the concept of public policy is influenced by Thomas Birkland’s contributions, who asserts that public policy is a governmental statement on the actions to be taken in response to a specific problem. These statements are presented in various forms or documents, such as constitutions, statutes, regulations, jurisprudence, decrees, laws, norms, and any other legal document. A public policy may refer to a single law or to the entire set of laws and regulations addressing a particular issue. In this article, I refer specifically to the laws or normative documents aimed at guaranteeing religious freedom, as well as those intended to safeguard against violations or discrimination based on religious grounds.
Policy transfer, according to Leslie Pal and Osmany Porto de Oliveira, is the process by which policies, practices, and knowledge developed in one territory or context are adopted or adapted in others. This phenomenon is essential to understanding how political ideas and solutions cross borders and adapt to diverse contexts. However, to date, no studies have been conducted on policy transfer in the realm of religious freedom. While I acknowledge that the processes of expanding religious freedom in Colombia have been significant, the country has yet to take the step of being considered a reference for transferring programs, actions, parameters, and strategies from the Comprehensive Public Policy on Religious Freedom and Worship to other countries.
In this context, I define counter-transfer as the active resistance to policy transfer processes, as described by Porto de Oliveira & Pal and Pacheco-Vega. This phenomenon can be conflictual and challenging, manifesting when certain actors block the adaptation of external policies to their local contexts for various reasons.
Rather than simply observing adaptations of public policies from other countries, counter-transfer illustrates situations where there is no motivation to effectively expand religious freedom, resulting in a lack of alignment with current international demands.
Additionally, counter-transfer also implies resistance to implementing public policies that not only exist formally as laws but also include concrete actions, programs, and strategies applicable to national and subnational contexts.
Finally, I observe that while a country may have a normative development supporting religious freedom, it may lack practical and effective measures to implement those ideals enshrined in policies, to address the public issues surrounding religious practices. In the following sections, I will demonstrate how in Latin America there is a notable resistance to strengthening laws that promote religious freedom through specific actions and programs, reflecting a process of “counter-transfer.”
Normative Expansion of Religious Freedom in Latin America
My recently published work details the provisions of constitutions, laws, and national development plans.When analyzing the expansion of the right to religious freedom at the constitutional level, it is observed that 25% of constitutions in Latin America favor the Catholic religion among these countries are: Argentina, Costa Rica, Guatemala, Panama, and Uruguay, either as the official religion or through economic benefits, which limits the recognition of other religions. However, all countries analyzed guarantee the right to freedom of worship and protection against religious discrimination. Additionally, half of the countries — Argentina, Bolivia, Ecuador, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Panama, and Paraguay — prohibit political participation by ministers of religion, establishing a separation between religion and politics. However, only four countries: Bolivia, Brazil, Paraguay, and Venezuela, recognize the beliefs of indigenous peoples, underscoring the need to integrate their rights within the framework of religious freedom, especially in a region characterized by significant religious diversity.
At the constitutional level, while there has been progress in recognizing religious freedom, significant challenges remain in its definition and application. Regarding religious freedom laws, only 8 out of 20 Latin American countries such as Bolivia, Chile, Colombia, Costa Rica, Ecuador, El Salvador, Mexico, and Peru, have at least one specific law promoting religious freedom. Although some countries have attempted to pass laws in this regard, these efforts have not been successful. Existing laws extend what is established in constitutions but lack concrete actions, programs, or strategies to guarantee or strengthen this right. Colombia stands out as an exceptional case with its comprehensive public policy on religious freedom and worship, a novel and commendable initiative in the Latin American contextHowever, these laws often do not clearly address the public issue justifying their enactment, highlighting the need for public policy documents that include objectives, strategies, actions to be developed, and accountability processes.
In some countries, such as Colombia and Peru, laws make distinctions regarding which religious beliefs are included, excluding practices such as witchcraft or occultism. This could be interpreted as a form of religious discrimination, contradictory to constitutional principles. Another notable issue is that although laws prohibit activities that violate morality or public order, they do not clearly define what constitutes such transgressions, creating gaps in their application. These definitions are usually developed in each country’s jurisprudence, but ideally, they should be clearer in the laws themselves to guide their interpretation.
Regarding the registration of religious entities, twelve countries in the region —Argentina, Bolivia, Chile, Colombia, Costa Rica, Ecuador, El Salvador, Mexico, Panama, Paraguay, Peru, and Venezuela— have religious entity registries and an entity responsible for granting legal status to churches. Additionally, some countries have incorporated aspects of promoting religious freedom into other legal documents, such as penal codes, civil codes, and education laws.
Finally, when reviewing the national development plans (PNDs) of current presidents in 20 Latin American countries, religious freedom is mentioned in only 6 of these plans. Chile, Colombia, and Nicaragua are the only countries that detail concrete actions to strengthen this right. In most cases, the mention of religious freedom is limited to the prevention of religious discrimination, reflecting that this right is not a priority on government agendas.
In Colombia, president Gustavo Petro has continued the work of his predecessors by including religious freedom in his development plan, establishing the National System for Religious Freedom and Worship (SINALIBREC). Chile reaffirms the role of the National Office of Religious Affairs (ONAR) and the enforcement of the Religious Freedom Law. In Nicaragua, despite current political instability, there is mention of support for 511 traditional faith and religious activities. However, Nicaragua has also emerged as one of the countries with the most significant violations of religious freedom in the region, according to Opendoors, the US Department of State, and the Nicaragua Nunca Más collective.
The absence of this right in most government agendas suggests that without its inclusion as a strategic objective, it is unlikely that resources will be allocated or effective programs implemented for its promotion and protection.
This analysis also suggests the need to explore religious persecution in the region, the role of religious organizations, and the effectiveness of electoral promises in the expansion of religious freedom.
Conclusions
Throughout this discussion, it has been evident that while there has been significant normative development in the region, it has not been uniform. Some countries still lack specific laws to protect and promote religious freedom, and there is no clear leadership in the region to drive the transfer of successful policies in this area. For instance, Colombia has been a pioneer in establishing a comprehensive public policy on religious freedom and worship, but this policy is recent, and its real impact remains unknown.
In this context, the concept of counter-transfer of public policies is introduced, highlighting a resistance to effectively guaranteeing religious freedom. There is minimal and poorly defined interest, with the belief that merely mentioning this right in constitutions is sufficient without the need for additional actions to ensure its protection.
This document suggests the continued expansion of the conceptual framework of counter-transfer and the broadening of religious freedom, taking into account factors such as negotiations and coalitions that could hinder this process. The importance of a theoretical-conceptual approach in the study of religious freedom is also emphasized, encouraging the academic community to further explore the determinants of its expansion.
Finally, it is crucial to closely monitor the comprehensive public policy on religious freedom in Colombia to evaluate its positive and negative aspects, its impact on the promotion and defense of this fundamental right, and the elements that could be transferred to other contexts, both in Latin America and globally. ♦
Recommended Citation
Sánchez Sandoval, Camila A. “Normative Development of Religious Freedom in Latin America: Counter-Transfer of Religious Policies.” Canopy Forum, September 26, 2024. https://canopyforum.org/2024/09/26/normative-development-of-religious-freedom-in-latin-america-counter-transfer-of-religious-policies/
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