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The International Journal
of Not-for-Profit Law

Volume 6, Issue 1, September 2003

A publication of the International Center for Not-for-Profit Law

Table of Contents

Letter from the Editor

Religion and NGOs

Introductory Letter from the Guest Editors
W. Cole Durham, Jr. and Elizabeth A. Sewell

A Bend in the Road to Civil Society: The Effect of Russian Anti-Extremism Legislation on Not-for-Profit Organizations
Brian Gross

A Practical Comparison of the Laws of Religion of Colombia and Chile
Scott E. Isaacson

Faith-Based NGOs in Bosnia and Herzegovina
Mojca Leban

Refah Partisi (The Welfare Party) and Others v. Turkey
Christian Moe

The Impact of the New Czech Law on Churches
Petr Pajas

Comments on the 2002 Belarusian Law "On the Introduction of Changes and Amendments to the Law of the Republic of Belarus 'On Religious Freedom and Religious Organizations'"
Melinda R. Porter

Russian Federation Constitutional Court Decisions on Russia's 1997 Law "On Freedom of Conscience and Religious Associations"
Marina Thomas

God and Caesar: Personal Reflections on Politics and Religion
Shirley Williams

Articles

Should Foundations Exist in Perpetuity?
Robert O. Bothwell

The Prohibition of Nigerian Civil Servants From Political Activities: A Necessary Derogation from Freedom of Association
Emeka Iheme

The Charity/Business Duet: Harmony or Discord?
Andrew Phillips (Lord Phillips of Sudbury)

From Benin to Baltimore: Civil Society and Its Limits
Sally J. Scott, Ph.D.

Reviews

Global Civil Society: An Overview
By Lester M. Salamon, S. Wojciech Sokolowski, and Regina List
Reviewed by Jonathan Nelms

The Changing and Unchanging Face of U.S. Civil Society
By Marcella Ridlen Ray

Civil Society: The American Model and Third World Development
By Howard J. Wiarda

Freedom in the World 2003: The Annual Survey of Political Rights and Civil Liberties
By Freedom House

Religion Returns to the Public Square: Faith and Policy in America
Edited by Hugh Heclo and Wilfred M. McClay

The State of Nonprofit America
Edited by Lester M. Salamon

Terrorism and Development: Using Social and Economic Development to Inhibit a Resurgence of Terrorism
By Kim Cragin and Peter Chalk

- - - - - - - - - -

Editorial Board

A Practical Comparison of the Laws of Religion of Colombia and Chile

Scott E. Isaacson[1]

I. INTRODUCTION 

In 1994 the nation of Colombia adopted a comprehensive law on religious liberty.[2]  In 1999, Chile adopted a similar law.[3] Both laws addressed many important issues relating to religious liberty and to church-state relations, and specifically addressed the legal status of non-Catholic religions. Both laws arose from similar historical and legal backgrounds and reflect similar changes in the religious life of these two South American countries. Comparing and contrasting the terms and provisions of these two laws is instructive regarding the issues faced when a nation attempts to put into practice the general promises of religious liberty and equality before the law. This is particularly interesting in light of the history of Latin America, where the Catholic Church has historically been the dominant religion.

Other than some introductory general observations, this comment does not intend to review these laws in their full historical or philosophical context, but rather to focus on the practical ways in which these two nations have attempted to deal with similar issues. For the last five years I have represented as legal counsel a church registered under the laws of both countries. Thus, my focus is on the practical and not so much on the theoretical aspects of the laws.

II. BACKGROUND

The relationship between the nation states of Latin America and the Roman Catholic Church is a complex subject beyond the scope of this essay. However, a basic understanding is the starting point for any meaningful discussion of religious laws of Latin America.

A. THE UNIQUE LEGAL STATUS OF THE CATHOLIC CHURCH

The Catholic Church existed as an independent legal and social entity before the current nation states of Latin America were formed. It has existed as a separate public institution throughout the history of the region. In many instances, the civil governments and the Catholic Church were very closely allied or aligned.[4]  As one Spanish scholar recently observed:

It is good to remember that most of the Latin American legal ordering was founded in the notion of “official State religion,” the protection by the State of one determined confession, and the so-called “National Trust [Sponsorship]”[5] by the State of the Catholic Church. This last formula is an inheritance from the prior imperial, regal thinking, which after independence, assumed that the rights exercised during more than three hundred years by the Monarchy in matters of representation to the Apostolic Seat by ecclesiastical dignitaries, the demarcation of dioceses, and the communication with the Holy See, etc., now fell to the new Republic.[6]

In several Latin American countries, the finances of the Catholic Church and the state are still intertwined to some extent.[7] Latin America, in contrast to the United States, had no general tradition of separation of church and state.[8]

Even though in practice there is a much closer intertwining of the state and the Catholic Church in the Latin American tradition, the Catholic Church exists independent from the nation states in a unique legal structure. In Latin America, most legal entities exist because they are granted some sort of legal status by a government. Corporations, foundations, and associations, along with other sorts of legal entities that people can form, possess legal status because the government has adopted laws that allow or recognize such entities. “Legal personality”--to translate the apt Spanish phrase – arises through compliance with some degree of government regulation. All entities that exist under governmental grants or recognitions of authority are called “private entities” or “legal entities of private law” in Spanish.[9] All such entities are in some sense dependent on the authorizing government for their continued legal status.

However, no such regulation has generally applied to the Catholic Church. It does not exist or operate under any authority granted or even formally recognized by the Latin American governments. In Spanish, the Catholic Church is referred to as “entidad de derecho publico,”[10] not a private entity. It is hard to find an exact equivalent in United States jurisprudence.[11] A public entity is one that is recognized because it exists under its own autonomous authority, and not because of any grant of authority by the government--and yet it exists as a viable legal entity, having full legal personality. In theory at least, a public entity cannot be dissolved by the state. It is almost accurate, though not quite, to state that the Catholic Church has existed as a sovereign government, independent in its own sphere of activity. Civil governments may rise and fall, and civil codes may change drastically, yet the Catholic Church continues to operate independently.

The unique legal status of the Catholic Church is sometimes explained by the fact that the Vatican is an independent nation.[12] Thus, the relationship between a government and the Catholic Church is more akin to the relationship between sovereign states than to that between a government and a traditional legal entity. Relationships between the governments and the Catholic Church are generally not governed by any legislation or executive decrees, but by Concordats or agreements between the state and the church.

It is not my purpose here to comment on whether this structure is desirable, but simply to observe that it exists.[13] When we examine the laws of religion in this region of the world, it is important to understand and recognize the unique legal status of the Catholic Church. This is especially the case for North Americans, because this structure is so different from our own traditions.

B. JURIDICAL VOID

Primarily because of the unique legal status of the Catholic Church in most Latin American countries, laws relating to religion developed very little until modern, even recent, times. Until the last forty or fifty years, in one sense there was no need for laws governing religious matters. The Catholic Church was basically the only church with a legal presence, and it did not operate under the aegis of governmental laws or regulations. The law applicable to the Catholic Church was its own canon law. The Catholic Church’s dealings with governments were not regulated by legislation or executive decree, but by treaties or agreements with the Vatican. Other churches, to the extent they existed or operated at all, could not enter into such treaties because they were not independent sovereigns.

As other religions began to proselytize and grow in Latin America, these new churches faced interesting legal challenges. Because of the history mentioned above, there simply were no laws or regulations relating to religious entities. The lack of such laws did not usually impair the basic ecclesiastical functions of the new religions. Eventually, at least, new religious groups could preach, obtain converts, form congregations, etc., in all Latin American countries.[14] Usually, however, a new and growing congregation reaches a size where it needs or desires some sort of legal structure to operate. For example, when it needs to purchase land or buildings for worship services, most Latin American governments will require that either a living person or a recognized legal entity hold title to the property. Thus, a church, supposing that it did not want to have its property held in the name of a private individual, would need to form some kind of legal entity. Similarly, when a religious institution reaches a point where it needs to hire employees, a recognized legal entity is required to be the employer under labor and tax laws. Also, in order to obtain tax exemptions or other such benefits from the state, a recognized legal entity is normally required.  

When churches in this condition turned to the laws of the various states, they found no provisions for the formation of specifically religious entities. Most nations had laws allowing for typical commercial entities, such as corporations or stock associations. In some countries, legal structures for non-profit corporations, civil associations, and foundations existed. These types of non-profit legal entities could be used for religions seeking to hold title, obtain visas, hire employees, and enter into contracts, but they were not ideal.

These types of entities, being basically commercial in nature, often require legal structures that are not really appropriate for a religion. For example, the most appropriate type of legal entity that many churches found was a civil association. This is a non-profit legal entity recognized under the laws of many Latin American countries. It serves some of the needs of a religious entity, but it also has some drawbacks. The civil association is formed by a group of local citizens uniting under articles of formation and bylaws for some common purpose. In one sense, a civil association is a type of club, one that is “owned” by its members. Civil associations have to apply for legal status and register with a department of the government such as the Department of Justice.

For doctrinal reasons, many churches prefer to be governed internally. For example, some churches traditionally form independent congregations, governed by a full-time minister and perhaps a council of elders or the like. Other churches are more centrally organized or hierarchal, with little local control or authority. The governments, however, did not recognize these forms of organization. The only legal entities available were off-the-shelf commercial entities. In order to obtain necessary legal status, churches were forced to adopt legal structures not in harmony with their actual and preferred structures. It was a classic “round peg in a square hole” situation. 

Moreover, such entities as non-profit corporations and civil associations are very often required to submit annual reports, including audited financial statements. These requirements are normal for commercial entities, but may be intrusive and burdensome for religious entities. To my knowledge, the Catholic Church is not requested to submit such annual reports to the government.

In many practical ways, a civil association or a non-profit corporation may enable a non-Catholic church to function in a given country. The church can buy and own land and conduct its legal business to some extent. But a civil association or a non-profit corporation is not really a church or even normally a religious entity, and it certainly is not the same legal structure as the Catholic Church. All such entities are “legal entities of private law” and not, as the Catholic Church is, an entity of “public law.” All other religions were forced to use general commercial types of legal entities to conduct their affairs. Thus in a fundamental way, they were second-class citizens under the law.

C. TENSION BETWEEN THE PRACTICE AND THE IDEAL

In the latter part of the twentieth century, most Latin American countries began to adopt national constitutions that on their face guaranteed religious liberty and directly or indirectly promised religious equality.[15] Such constitutional provisions are certainly laudable and important, and for non-Catholic religions they provided significant social and emotional support. On a practical level, however, these broad constitutional provisions did not produce any real legal change in the operational status of non-Catholic religions, due in part to the lack of any implementing legislation or regulations. Particularly in the civil law system, such implementing legislation is essential. 

Constitutional provisions of religious freedom or equality in fact created a tension. Despite a broad constitutional statement of religious freedom, the Catholic Church had a legal status that other churches could not enjoy. Although not exactly congruous, the concept of individual religious freedom and the concept of equality before the law for religious organizations are closely connected. So long as the Catholic Church enjoyed a unique legal status, the best that could be said was that there might be personal freedom of religion, but that some churches were freer than others.

It should also be mentioned that many of the Latin American countries are signatories of international agreements on human rights and religious liberty.[16] These international agreements also contributed to the tension identified here. The states agreed to the values of religious tolerance and equality before the law, but in practice, there was the Catholic Church in its unique legal and social status and then there were all other religious institutions, which operated in a quite different legal status.

Another important influence on the development of religion laws in Latin America is the history of such laws in Spain. Obviously, legal developments in Spain tend to be very influential for the countries of Spanish-speaking Latin America. In December 1978, Spain adopted its modern Constitution, which established separation of the Catholic Church and the state. In 1980, Spain adopted a new Law of Religious Liberty.[17] It is obvious that some of the actual text of the laws in Colombia and Chile is derived from the Spanish law of 1980. Moreover, the basic concept of a registry of non-Catholic religions seems to trace back to the Spanish model.

Thus, the lack of implementing legislation for the constitutional promises of religious freedom and equality, the precepts contained in international agreements, and legal developments in Spain all highlighted the disparity of a situation in which one dominant church enjoyed a legal status denied to other churches. Partly to resolve this tension, there have been occasional attempts to attack or diminish the privileged status of the Catholic Church.[18] These attempts have not proved successful, and in my opinion are unlikely to be successful. In fact, such efforts may be counterproductive to the long-range goals of religious liberty and equality before the law in Latin America.

Instead of taking privileges away from the Catholic Church, the other way to resolve the tension between constitutional guarantee and practical reality would be to give those privileges to other religions--to allow them to operate in the same, or at least a similar, legal and practical manner. The Catholic Church may rightly oppose any effort to reduce its rights and privileges or its legal status, but it is harder to defend its denying similar practical rights and privileges to other religions.

D. INTO THE BREACH

The motivations for legislators to adopt new comprehensive religion laws in Colombia and in Chile are certainly as varied as the legislators themselves. The story of the adoption of these laws merits a complete analysis and study beyond the scope of this essay. But it is safe to assume that these laws arose at least in part out of the tension between the promises of religious equality before the law, on the one hand, and the lack of a legal system providing for non-Catholic religions to enjoy anything comparable to the legal status enjoyed by the Catholic Church, on the other. Given that background and motivation, it is worthwhile to examine the laws themselves to determine how well they address these tensions.  

The laws adopted in Colombia and in Chile are also worth examining for several related reasons: to see how they address the practical needs of non-Catholic religions to attain legal status to operate appropriately in the country; to see how these laws attempt to implement the constitutional and international values of religious liberty and equality before the law; and to see how these laws attempt to address some of the serious difficulties inherent in laws relating to religion, such as how religion is to be defined.

III. SALIENT PROVISIONS OF THE LAWS OF RELIGION OF COLOMBIA AND CHILE COMPARED AND CONTRASTED.        

The full texts of the Colombian and the Chilean laws, in unofficial English translation, are attached as appendices. A complete analysis of these two laws would be too lengthy, but I have chosen several of the salient provisions to compare and contrast.

A. GENERAL STATEMENTS OF RIGHTS.

Both laws commence with a recitation of the fact that the nation guarantees freedom of religion and worship in its constitution. The Colombia Law states that it should be interpreted in accordance with the international treaties of human rights ratified by the Republic. Both laws reflect the basic concept that both individuals and churches or organizations should enjoy religious freedom. In a very important and fundamental step, both laws not only restate the promise of the state to guarantee religious liberty, but also clearly state in legislative terms so important in a civil law system that the state will use its power to enforce such freedoms. Colombia: “The Public Power will protect the beliefs of the people, as well as those of the religious congregations and churches. . . .”[19] Chile: “The State guarantees that persons may freely exercise their religious practices and also guarantees the freedom of churches, congregations, or religious organizations.”[20]  

B. STATE CHURCH

Neither law refers directly to the favored or special relationship between the Catholic Church and the state, such as had been found in many previous Latin American laws and constitutions. Both laws appear to recognize a more pluralistic approach, at least in theory. Colombia:  

No Church or Religious Confession is or will be the official or state [church]. Nevertheless, the State is not atheistic, agnostic, or indifferent to the religious feelings of the Colombians.[21]

Although the Chilean law makes no such explicit statement, it does contain an interesting provision:

The legal entities of religious organizations governed by this law shall have the same rights, exemptions, and tax benefits that the Constitution of the Republic, the laws, and regulations in effect grant and recognize to other churches, congregations, and religious institutions existing in the country.[22]

Given the context, this provision can only be an indirect way of saying that all tax exemptions and other benefits enjoyed by the Catholic Church under prior law and practice can be enjoyed by all religious entities that register under the new law.[23]

C. ANTI-DISCRIMINATION.

Both laws directly condemn personal discrimination based on religious belief. The Colombia Law states: 

The State recognizes the diversity of religious beliefs, and such beliefs shall not be the cause of inequality or discrimination before the law that would annul or restrict the recognition or exercise of fundamental rights. All religious congregations and churches are equally free before the Law.[24]

This declaration establishes not only that persons should not be discriminated against on the basis of religious belief, but that religious institutions should also be considered equal before the law. As we examine the remainder of the law, it will be seen that the Colombia law approaches this goal but in certain respects falls short of true equal treatment.

In Chile, the law states:

No person shall be discriminated against on the basis of one’s religious beliefs; neither can one’s religious beliefs be invoked as a reason to abolish, restrict, or affect the equality granted in the Constitution and the law.[25]

D. DEFINITION OF RELIGION

Any law attempting to regulate or even discuss matters of religion faces a significant hurdle: how to define religion. There are complex philosophical, historical, and legal challenges. But these real and troubling metaphysical questions are not really what a legislator is concerned about in adopting laws such as these in Colombia and Chile. In this context, abstract definitions of "religion" probably do not motivate the drafters. Rather, they probably are more interested in assessing the practical effects of such a definition and in presenting laws that can attract sufficient support to be adopted. 

A broad purpose of each of these laws is to recognize the legal status of religious organizations and to define their rights and benefits. For example, most states allow religious entities to enjoy various tax exemptions. Thus, one of the primary purposes of these laws is to grant such exempt status to certain organizations. The state has a legitimate interest in granting tax exemptions only to organizations that it reasonably determines deserve such a privilege. But which organizations? If, for all the obvious societal and legal reasons, a state wishes to confer tax-exempt status on “religious” entities, how does the state determine which entities are entitled to that benefit and which are not?

This is a very thorny issue facing a legislator. The fact that a group calls itself a religion need not make it the type of entity to which the legislature means to grant a tax exemption, regardless of whether in some philosophical sense it could be called a religion. To put it more concretely, the practical pressure facing any drafter of such a law is to attract sufficient votes, and one of the major concerns commonly voiced by legislators is that, though they have no problem granting tax exemptions to “legitimate” religions, they fear granting tax-exempt status to groups that may be calling themselves religions merely to seek the tax benefit. But that puts the state in the business of judging the sincerity or appropriateness of religious groups, which is a very difficult prospect at best.

The subject of defining religion is beyond the scope of this comment. It is quite interesting, however, to observe how in real-world practice, these two nations dealt with the issue.

For want of better terms, there is a positive approach and a negative approach to defining religion. In other words, a legislator can attempt to define what types of entities qualify as legitimate religious entities subject to the religious law and entitled to its benefits, or the legislator can attempt to state what is not a religion subject to the law. Or, I suppose, a law could do both.

The law of Chile attempts a positive definition:

For the purpose of the present law, the terms “churches,” “congregations,” or “religious institutions” refer to entities composed of natural persons who profess a particular faith.[26]

There is a little more to this definition than may meet the eye at first reading. First, the definition is limited to the purposes of the present law. Seemingly, the drafters recognized that it is very difficult to define religion generally, but that the law, to be functional, must define it in some fashion. Second, the definition is limited to “entities.” This implies the existence of some kind of legal entity. Apparently, some kind of formal entity or structure is necessary in order to fall under this law. The entity must also be formed by “natural persons,” implying both that there must be more than one and that they must be natural as opposed to legal persons. Thus, a foundation formed by another legal entity, for example, could not qualify as a religion under this definition. An individual also could not declare himself a religion. Rather, it must be a legal entity formed by people. Finally, these people must profess a particular (“determinada,” or determined) faith. The law does not define “particular faith,” but the words imply that there must be some kind of set doctrine or practice involving matters of faith.  

Although it is not technically a textual definition of religion, the Chile Law achieves part of the effect of a religious definition through its registration process. Registration is optional, but if a religious group wishes to obtain the benefits of the law, it must register. (The registration process will be discussed in more detail below.) By requiring the presentation of bylaws, names of founders, domiciles, foundational documents, etc., the law in a practical sense limits the entities that can receive its benefits to those religions with some kind of traditional structure and seriousness.

Chile’s approach avoids the sort of qualitative descriptors found in many other definitions, such as Colombia’s. Instead Chile seems to rely on a general definition and on procedures that would, in practice, make registration unlikely for insincere groups attempting merely to take advantage of tax benefits. As will be discussed more below, one of the unanswered questions about the Chile law is the grounds on which the registry can approve or reject an attempted registration. The definition is certainly relevant to that issue, but it does not give much guidance. This is an area that will be interesting to observe in the future.

In contrast to Chile’s attempt to define religion mostly in a positive way, the Colombia law does not use a direct, positive definition,[27] but instead contains what I have called a negative definition:

Not included within the scope of application of the present law are activities that are related to the study and experimentation of psychic or parapsychological phenomena; Satanism; magical, superstitious, or spiritualist practices; or other analogous practices foreign to religion.[28]

Such a negative definition raises some obvious issues, especially the broad catch-all at the end, “other analogous practices foreign to religion.” It gives the ministry of religions, as directed by this legislation, the task of judging applicants based on the criteria listed. One person’s “spiritualist practice” may be another’s sincere prayer or Pentecostal religious experience. Although most people could probably agree on the extreme ends of the spectrum of human behavior, some aspects of commonly accepted religious practice could be labeled as superstitious or even magical. Putting a state agency in the business of making such judgments certainly does give pause.

It is somewhat understandable why a legislator would put in such a negative definition--namely, to attempt to limit the law's benefits, particularly tax benefits, to serious or traditional religions. But this approach certainly raises numerous questions. We have not found any local court or scholarly interpretation or discussion of this provision and have not been able to determine whether any religion attempting to register has been rejected because of its terms. This remains an interesting matter to observe.

As mentioned, a full discussion of the types of definitions of religion and their implications is beyond the scope of this comment. From a practical standpoint, the attempts by Chile and Colombia to define religion for purposes of their statutes should not present any serious difficulties to the registration of any mainstream or well-established religions. For newer or unorthodox religions, there is a chance that difficulties will arise.

E. LIMITATION ON RELIGIOUS FREEDOM

When dealing with issues of religions freedom, it is common to mention that some limits on that freedom are generally perceived as universally acceptable. To use a crass example, a religion that professed, no matter how sincerely, to believe in human sacrifice would probably be proscribed from practicing the activity, even though that prohibition is technically a limitation on freedom of religion. Such restrictions have been recognized and justified in most statutes and agreements dealing with religious liberty. For example, the Universal Declaration of Human Rights, adopted by the United Nations General Assembly, states:  

In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order, and the general welfare in a democratic society.[29]

It is interesting to note that Colombia incorporated this concept into its statute and even used some of the same phraseology:

The exercise of the natural rights of freedom of religion and worship shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others in their public and fundamental rights, such as protecting security, health, and morality, which are constituent elements of public order protected by law in a democratic society.[30]

This is an example of how international norms can influence and indeed be adopted directly into the laws of sovereign nations.

These words from the U.N. Declaration are very broad. Preserving “morality” and “public order,” for example, could be broadly interpreted and possibly could be used to restrict legitimate religious activities. Article 4 of Colombia’s law also contains a general provision stating that the exercise of the rights recognized under this statute will be exercised in accordance with existing norms. This kind of broad incorporation by reference seems to indicate that the statute is to be interpreted in conformity with other existing laws. It is not clear to what extent such a cross-reference could limit or define the positive grants of religious liberty contained in the new statute.

This specific provision of the Colombia law was the subject of an advisory opinion from the Constitutional Court issued before the adoption of the law.[31] The opinion of the Constitutional Court declares Article 4 to be “conditionally enforceable.” That appears to mean that it is constitutional and enforceable so long as it is interpreted and applied as set forth in the advisory opinion. The opinion then cites relevant jurisprudence and gives guidelines about applying Article 4. The court observes that all rights have their limits, either directly or indirectly. In discussing what is “public order,” the court states that it must be interpreted to refer to those acts proscribed or protected by law. The court concludes that the limits on the exercise of religious liberty can be summarized in three points: (1) The presumption should always be in favor of the highest degree of liberty; (2) liberty can only be restricted to the degree, rationally and objectively, that is necessary in a democratic society as provided in the law; and (3) the possible restrictions should be established by law and not be arbitrary or discretional.    

Chile’s law, by contrast, does not limit its declaration of religious freedom in this fashion. Limiting language is found in a provision dealing with the acquisition and administration of assets necessary for the activities of the religious entity, which states that these activities should be in conformity with “general legislation.”[32] Chile’s law also mentions that public religious meetings and activities should be conducted “in conformity with the general legal norms and with this law.”[33] These restrictions appear to be limited to the specific activities mentioned--namely, the acquisition of real property and public meetings and activities.

The drafters of the law apparently felt it better to have Chile's general limits of religious rights determined by future jurisprudence instead of attempting a legislative determination.

F. ENUMERATED INDIVIDUAL RIGHTS 

The religious liberty laws of both countries contain extensive lists of personal rights related to freedom of religion. The specific language is so similar in the two enunciations of rights that they appear to share some common source. It seems very likely that this source is the 1980 Law of Religious Liberty adopted by Spain. Many of the phrases found in the laws of Colombia and Chile are the same as the Spanish law.  

Specific rights recognized in both the Chile and the Colombia laws:

To freely profess one’s chosen religion[34]

To profess no religion[35]

To freely declare (manifest) one’s religion[36]

To abstain from declaring one’s religion[37]

To change one’s religion[38]

To practice or worship in private or collectively in public[39]

To commemorate religious holidays[40]

To receive a dignified burial without discrimination on religious grounds[41]

To not be obligated to worship or receive religious assistance contrary to one’s personal convictions[42]

To receive religious assistance or attendance wherever one may be located, specifically in medical centers[43]

To receive and share religious teaching and information by whatever means (proselyting)[44]

To choose religious education for minors in accordance with one’s own convictions[45]

To meet publicly with religious purposes and to associate to develop religious activities, in accordance with “legal order” and the “present law”[46]

 

Personal right mentioned specifically only in the Chile legislation:

            To observe a weekly day of rest[47]

Rights mentioned specifically only in the Colombia legislation:

To celebrate marriage and establish a family in conformity with one’s religion.[48] This provision also states that religious marriages and “annulments” will have “civil effects,” “without denying the competence of the State to regulate them.” What this apparently means is that churches can both perform marriages and annul them, and these actions will be recorded in the civil registry in some manner. This is one aspect of the Colombia law that appears quite liberal and probably deserves additional study to determine how it has been actually implemented. 

To not be impeded for religious motives in acquiring work or in other civil activities or in fulfilling public functions[49]

 

G. ENUMERATED INSTITUTIONAL RIGHTS FOR RELIGIOUS ENTITIES

The laws of Chile and of Colombia both recognize that not only is religious freedom a basic right enjoyed by individuals, but religious liberty also comprehends certain rights that should be enjoyed by religious institutions or groups. Both laws then list some of these “institutional rights.” 

To establish places of worship and conduct religious meetings[50]

To “freely exercise its own ministry”[51]

To establish its own hierarchy and to select and train in its own form its own ministers[52]

To establish and direct its own autonomous institutions of religious education[53]

To publish and distribute its own religious publications[54]

To proselyte[55]

Colombia’s law further provides that the religious organization can conduct educational, charitable, and welfare programs in a fashion that puts into practice the precepts of the institution with regard to its views of the moral and social order.[56] This provision seems to indicate that a church can be governed by its own internal precepts in the provision of humanitarian and educational services. Sometimes there are conflicts between the standards applied by a religious institution and those adopted by the state in the provision of humanitarian or educational assistance. A religious institution may elect to discriminate in some fashion in providing assistance. For example, it may limit some programs only to its members. Such discrimination on the basis of religion would almost certainly not be legal if conducted by a government agency providing humanitarian assistance. But religious institutions often wish to apply their own internal standards to humanitarian or educational programs. This provision assures the religious institution that it can apply its own standards and will not be bound by the values or standards of others.  

H. LEGAL STATUS OF REGISTERED RELIGIOUS ENTITIES

As mentioned in the Background section above, one of the most interesting issues related to the laws of religion in Latin America, both those that have been adopted and those being considered, is the issue of the exact legal status of new churches as compared with that of the Catholic Church. As mentioned above, the Catholic Church is recognized in Latin American jurisprudence as an entity of “public law,” which means in part an entity independently existing beyond direct governmental control. Other religious institutions, by contrast, could form only legal entities of “private law,” which means normal legal entities subject to government definition and control. Although certain issues are not entirely clear and may have to be defined by amendments or by further interpretation, it appears that the law in Chile effectively bridged the gap and allows other religious institutions to become entities of “public law” enjoying the same rights and privileges as enjoyed by the Catholic Church. By contrast, the Colombia law appears to have approached this goal but blinked at the last minute, so to speak, and did not clearly create equal legal status for the new religious institutions.

1. LEGAL STATUS IN CHILE

After completing the registration process, as described in more detail below, the Chilean Law states: “Once entry in the public record is certain [i.e., there are no outstanding objections within the time period specified in the Law]the respective organization will enjoy the legal status [personality] of public law.” [57] Similarly, later in the Law, in the provision dealing with taxation, the Chile law confirms:  

The legal entities of religious organizations governed by this law shall have the same rights, exemptions, and tax benefit that the Constitution of the Republic, the laws, and regulations in effect grant and recognize to other churches, congregations, and religious institutions existing in the country.[58]

In many regards, this is a remarkable breakthrough for religious liberty in Latin America. At least in the broad sense, and from a purely legal standpoint, no longer do other religions have to use legal structures that provide less protection and autonomy than the Catholic Church enjoys in Chile.

The benefits that flow to a religious organization from being an entity of “public law” include the right generally to exist independent from government controls and regulations. The entity will no longer be subject to the rules governing associations and non-profit corporations, such as requirements for holding annual meetings, keeping minutes, providing annual financial statements to the regulators, etc. The religious entity can conduct its affairs through its chosen form of organization. The statute gives legal personality to religious organizations without imposing any sort of external structure on them. 

As discussed below, entities of public law can form their own “associations, corporations and foundations for the realization of their objectives.”[59]

Those associations, corporations, foundations, and other organizations created by a church, congregation, or religious institution that, according to their own legal rules, enjoy religious legal status, are recognized as such. The religious authority that created or instituted them will prove their existence.[60]

This is another remarkable provision, and it raises a question that will be very interesting to observe in practice. Taken at face value, it means that a registered religious institution can form its own separate legal entities, including corporations, associations, and foundations, all without any act or approval by the ministry of legal entities, as would be required to form such entities in the normal course. Ordinarily, one would expect a corporation to be an entity existing under a charter granted by a state, but in Chile, a church can now form its own corporation.[61]

This provision flows from the premise of this essay. The Catholic Church has enjoyed the status of legal entity of public law in Chile and has had the ability to set up foundations, associations, and other such entities under canon law and without the approval of the state. If, as the Chile constitution and laws state, there is to be religious equality, this ability would have to be taken from the Catholic Church or granted to other churches. Chile has wisely chosen to grant this benefit to non-Catholic religions.[62] It will be intriguing to see how this issue develops in practice.

Having taken this major step toward granting all religions the possibility of being entities of public law, the Chile Law takes a few steps backward. The law provides for the involuntary dissolution of a registered religious entity in certain circumstances. Specifically, the law states:

A legal entity established according to this law may be dissolved in conformity with its bylaw, or in conjunction with a judicial decision, commenced by the requirement of the Council of Defense of the State, which may act on its own initiative or at the request of a party in those cases that correspond to the Council.[63]

Apparently, the legislators felt the need for some manner for subjecting a registered religious entity to state control in the ultimate sense. Assigning the involuntary dissolution power to the Council of Defense, rather than the ministry that normally supervises the registry of religions,  implies that this power would be exercised only in cases of very serious national concern, a high hurdle. However, it is very doubtful that such a provision could ever apply to the Catholic Church. Thus, from a purely practical standpoint, non-Catholic religions are still treated differently in this respect.

There is another indirect way in which non-Catholic institutions are still treated differently in the law. As will be discussed below, in order to obtain the law's benefits, a religious organization must register. The registration process is not overly burdensome, and there are limitations on the grounds for rejecting an application. Nevertheless, it is somewhat worrisome for a religion, particularly one that may have been active and legally established in Chile for many years, to have to submit to registration with the possibility of government objection. Certainly, the Catholic Church was not and probably would never be asked to undertake such a registration.[64]

From a practical standpoint, however, it seems unlikely that the registration requirement and the involuntary dissolution provision will seriously affect the operations of most religious organizations. In my opinion these limitations should not detract from the truly remarkable advance that the Chile law represents with respect to the basic legal status of religious entities.

2. LEGAL STATUS IN COLOMBIA

The Colombia law appears to have approached the issue of full legal equality but, by contrast to the Chile law, not completely bridged the gap. Many provisions of the Colombia law are very progressive and helpful for non-Catholic religious entities, and several provisions are more ample and beneficial than their counterparts in the Chile law.[65] However, on the basic issue of legal status, it appears that non-Catholic religions are still deemed entities of private law, whereas the Catholic Church is explicitly recognized as an entity of public law.

Article 9 of the Colombia law states:

When petitioned, the Ministry of Government recognizes the legal identity of churches, religious congregations and denominations, their federations and confederations and associations of ministers. In the same manner, the said Ministry shall maintain the public registry of religious organizations.

This provision seems to state that the government recognizes existing religious entities, all of which, other than the Catholic Church and its affiliated entities, are entities of private law. Then it provides that the ministry will act as the public registrar of religious entities. This appears to mean that newly formed legal entities can register with the ministry in a separate register of religious entities. The significant new concept in this process appears to be that “churches, religious congregations and denominations” can themselves register and be given legal status. As discussed above, no longer does a religion have to use a civil form such as an association or corporation in order to have legal status. A significant improvement, this means that churches should be able to form legal entities more in line with their preferred manner of organizing themselves.

However, after making this important advance, the Colombia Law limits its legal impact. After stating the requirements for registration, the Colombia Law states:

Churches, religious confessions and denominations, their federations and confederations, may preserve or acquire legal identity of private law[66] in accordance with the general dispositions of the civil law.[67]

This provision states that when a religious organization wishes to register a legal entity in Colombia, it may not need to use a form of legal entity recognized and supported by the general civil law, such as an association or non-profit corporation, but that the entities formed are entities of private, not public law.

Contrast the foregoing provision with a subsequent provision of the Colombia law:

The State continues recognizing the legal identity of public law[68] of the Catholic Church and of the established organizations, or those that are established, according to that which is stipulated in the 1st division of article IV of the Concordat, approved by Law 20 of 1974.[69]

Thus, as positive a development as the Colombia law is in other important regards, as to the basic legal status of religious entities, the status quo is in some sense preserved. The Catholic Church is a legal entity of public law, with its status governed not by normal legislation or decree but by a concordat or agreement between it and the state. By contrast, all other religious organizations can form legal entities only of private law, and are apparently subject to the “general disposition of the civil law” governing such entities. It is not entirely clear what this means. For example, do the religious entities registered under the new law have to submit annual reports similar to those submitted by all other “entities of private law”? What are the “general dispositions of the civil law” that apply to them, and how do they apply? These questions are currently unanswered.

I wish to stress, however, that the Colombia law represents a very valuable declaration in favor of religious liberty and equality. For most practical purposes, non-Catholic religions whould not find their desired activities impaired by the inability to form a legal entity of public law. The legal playing field for religious institutions is much closer to level after the adoption of the Colombia Law. 

I. REGISTRATION PROCEDURES

Probably because of the very different legal effects of registration, the registration procedures in the two laws are quite different. In Chile, which grants the status of a public entity to registered religious entities, the registration procedure is fairly detailed.  In Colombia, where registration does not fundamentally change the legal status of the entity, registration is more pro forma. 

By way of brief summary, in Chile, an entity wishing to register must submit a notarized copy of its document of formation, which should contain basic identifying information about the organization. These requirements are not burdensome. Once submitted, the registration is reviewed by the Ministry of Justice, which can notify the applicant of any defects in the application. This does not appear to envision a public comment period, only an internal administrative review. The law states that:

The Ministry of Justice shall not deny registration. However, within the period of ninety days (counted from the date of registration), for good cause, the Ministry may object to the submission if it fails to meet some requirement.[70]

If the ministry notifies the applicant of a failure to meet some requirement, the applicant has sixty days in which to correct the application. In the event of a dispute, either party may appeal the ministry’s decision to the Court of Appeals of the region where the religious organization is domiciled, following the normal rules for appeals from administrative determinations.[71]

As mentioned above, a religious entity, especially one that is already well-established in Chile, may fear the possibility that this process could give rise to unforeseen objections and even litigation regarding its legal status. The statute, however, attempts to address these concerns by stating expressly that the Ministry of Justice shall not deny registration. The only apparent purpose of the review is to ensure that the technical requirements of the application are met. This appears to remove any discretion from the ministry. One interesting issue to observe in the future will be whether any applications are in fact rejected, and, if so, on what grounds.[72]

The Colombian registration process is simpler. The law states that the government shall maintain a public registry of religious organizations. To be listed, a religious organization merely submits a petition. The law states that:

The petition should include authentic documentation that proves the foundations or establishment in Colombia of the church or religious congregation, as well as its denomination and other information of identification, bylaws which explain its religious purposes, operating procedures, organizational scheme and representative bodies with a statement of their faculties and of their requirements for valid designation.[73]

The law does not specify any sort of formal administrative review of the petition or set forth a time period for such a review. It simply states that “[t]he ministry of Government shall, on its own initiative, submit the registration in the public record of religious organizations when it grants legal identity to a church or religious congregation."[74] The only standard mentioned for any sort of approval is this: “Legal identity shall be recognized when the necessary requirements are properly proven and it does not violate any of the precepts of the present law.”[75] The power to review the applications and to maintain the registry of churches is vested in the Ministry of the Government.[76]

One assumes that the ministry reviews the applications and either approves or rejects them, and that rejection would be based on a failure to comply with the terms of the law, perhaps especially the definition of religion as described above. Again, we have not been able to obtain any reliable facts about whether any applications have in fact been rejected. This remains an interesting area to observe in the future.

J. ABILITY TO CREATE NEW ENTITIES

The Chile law and the Colombia law both state that registered religious institutions have the right to create associations, foundations, and institutions for the accomplishment of their purposes. In Colombia this provision concludes “in accordance with the disposition of the legal norms.”[77] This phrase apparently means that all such sub-entities will be normal legal entities of private law, formed in the normal fashion by application to the state. The Chile Law, by contrast, ends the phrase without this limitation and adds that all such associations, corporations, or foundations shall have independent legal existence.[78] As mentioned above, this apparently means that a registered church in Chile, as an entity of public law, can form such organizations and that they will obtain legal authority and personality of their own, without government review or approval. Chile’s law adds the condition that all such new entities must be non-profit in nature.[79]

K. AUTONOMY IN INTERNAL MATTERS

The Colombia law contains an important statement regarding the internal operations of a religious institution: 

Churches and religious congregations shall have, in their religious matters, total autonomy and freedom and may establish their own norms of organization, internal regime and dispositions for their members.[80]

This provision addresses a significant concern for religious entities. Many churches have a tradition of some kind of internal discipline for members, including excommunication or removal from the organization. I am aware of several cases in Latin America where a disciplined individual has sought to bring a civil lawsuit against the religious group for moral injury or damage to reputation. In the United States, the separation of church and state provides a solid legal basis to argue that a religion can conduct its internal membership discipline without the interference of the state. In Latin America, the matter is much more open. The issue of when internal church discipline could or should give rise to any sort of civil liability is a topic worthy of further in-depth thought and review. Colombia’s law, however, at least gives a starting point that such internal matters should be “autonomous.” The full implications will have to be developed in practice.

L. ENUMERATED BENEFITS

Many tangible and intangible benefits flow to religious institutions under the religious liberty laws of Colombia and Chile. The enumerations of individual and collective rights are extremely important. The recognition that the states are pluralistic, removing the previously explicit references to a special relationship between the state and the Catholic Church, represents an especially significant step toward full religious liberty and equality before the law. I do not wish to minimize these benefits by focusing on some of the more mundane practical benefits. Indeed, in the long run, the intangible benefits probably are much more important than the practical. 

However, it is worth comparing the two laws to note what specific practical benefits flow from them.

One important right mentioned in both laws is the right to receive donations. Both laws state that a religious organization can ask for and receive financial and other kinds of donations from individuals and legal entities, and organize collections from members, for the purposes of advancing the religion, supporting its ministers, and pursuing other aims of its mission.[81]  Chile adds a caveat that would be normal for any non-profit entity: none of the property of the entity can pass to any of its members ("integrantes") upon the entity's dissolution.[82] Chile also states that donations within a certain limit are exempt from transfer taxes.[83]

Although the text of the statute does not say so expressly, the donations are not to be considered income for tax purposes. The word “donation” is normally a term of art in taxing schemes, and donations are normally exempt from income or transfer taxes within various limitations. These provisions probably did not act to change the practices of any religious institutions. It is important that the practice of considering such donations tax-free has been generally confirmed.

Both laws mention that donations can be received for the support (“sustentacion”) of the churches’ ministers. Religious institutions in Chile and Colombia often confront the interesting issue of whether and to what extent the support received by their ministers is subject to withholding and/or taxation. There is a fundamental unanswered question in many Latin American countries as to whether the relationship of a minister to his congregation or church is an employment relationship or some other type of relationship. If it is a labor relationship, it probably would be subject to all the provisions of the labor law and tax laws relating to employment. Yet the relationship of minister to congregation is not exactly an employer/employee relationship. Certainly, many Catholic clergy receive support from the Catholic Church. Although I do not have documentary proof, it is my understanding that such support is not taxed in Chile and Colombia. It would be remarkable if it were. If the support received by Catholic clergy is not taxed, could the support received by ministers of other religions be taxed? One would argue probably not, and many provisions of the new laws in Chile and Colombia would support that argument. I would argue that this provision regarding the use of donations for the “support” of ministers supports the conclusion that such support is not in the nature of normal employment income.[84]

The other economic benefit mentioned in these laws has to do with exemptions from other forms of taxation. The Colombia law simply states: “The Municipal Councils may grant exemptions from taxes and local fees to religious institutions in an equal manner for all congregations and churches.”[85] This leaves the matter of property taxes and fees to the discretion of the municipalities, but at least they are ordered by the law not to be discriminatory in their exemptions. Many issues about the taxation of churches are not addressed in the text of the Colombia law and must be resolved by examining the tax codes. The Colombia law, however, would provide powerful support for the argument that whatever tax exemptions are granted to the Catholic Church must be granted to other registered religious institutions.

In Chile this conclusion is explicit:

The legal entities of religious organizations governed by this law shall have the same rights, exemptions, and tax benefit that the Constitution of the Republic, the laws and regulations in effect grant and recognize to other churches, congregations and religious institutions existing in the country. [86]

In regard to taxation, the playing field for religious organizations appears to be level, at least in theory.  

IV. GENERAL OBSERVATIONS AND CONCLUSIONS

I call this essay a “practical” comparison of the laws of Chile and Colombia. Having reviewed many of the salient provisions of the two laws, I turn to the final question: what does it all mean in practice? 

Before proceeding to the new laws' many positive aspects, I wish to mention their biggest practical problem. Neither law deals well with the fact that many religions have been active in Chile and Colombia for many years and have set up associations or non-profit corporations. These legal entities in many cases hold title to significant lands and properties used by the religions. As mentioned, these are entities of private law, subject to all the governmental controls normally asserted over commercial entities. The new laws change the status for the religions and for the new entities that they may form, but the laws do not address these preexisting entities and, more important, the property they own. The single biggest practical problem with these laws is how to transfer property and other assets to the new entities registered under the new laws. Now, such a transfer can be accomplished only by recording a deed of transfer, which entails significant transfer taxes. Thus, in order for a religious group to put its property under the protection of the new law, it must incur the costs of transferring its assets. That cost seems unnecessary and burdensome. Through modifications or implementing regulations, the law should allow existing religious groups to place their assets under the protection of the new registration scheme without undue costs or burdens.[87]

More generally, the Chile and Colombia laws both set forth procedures and policies that work very well for new religious groups, but fail to address the issues of preexisting religious legal entities. For the time being, many established churches have registered under the new law but continue to maintain their preexisting legal entities. Certainly, it does not help to simplify and clarify the legal situation if a church must maintain two sets of legal entities to operate in the country, one to undertake new operations and one to hold older properties. If they follow the lead of Chile and Colombia, other countries would be wise to establish clearer standards for the implementation of the registry with regard to preexisting religious legal entities. Ideally, a religion should have the option of having its entire legal structure recognized under the new law, and thereby extending the law's protection and benefits to all of its properties and operations.

Moving to address the various positive aspects of the new religion laws in Chile and Colombia, first and perhaps most important, both laws represent significant steps forward in the continued progress of religious liberty in Latin America. Both contain serious and significant legislative declarations in favor of religious liberty and pluralism. Both go a long way toward filling the legislative void mentioned in the beginning of this essay. Now, religious institutions other than the Catholic Church can conduct their local legal affairs in a structure that is significantly more equal to that of the dominant church.

It is also a significant practical advance that both countries now can recognize religions and their confederations, associations of ministers, etc., as legitimate legal entities with the ability to act as such in the community. No longer will non-Catholic religions be forced to use legal structures foreign to their preferred manner of organizing their activities. All a church need do now is to go the government and explain its organizational structure, and the state recognizes that organization as a valid legal entity with the ability to act as a legal person under the law. In addition to the psychological and philosophical benefits of being treated as equals of the dominant church, this approach greatly simplifies the process of maintaining a legal status in each country. Flowing from this legal recognition, in addition, are clearly enunciated tax and other benefits.

Moreover, in Chile at least, a religious organization can now enjoy the legal status of an entity of “public law.” This means in theory that it exists independent of state control and regulation.

Finally, the two laws should stand as barriers to discrimination or unequal treatment on the basis of religion, both as to individual persons and as to religious organizations. Having lived in South America for many years and observed firsthand the actual practices there, I am not suggesting that religious discrimination ceased immediately upon the enactment of these two laws. There is still much to do to implement the promise of religious liberty in full. The dominant religion continues to dominate when it comes to religious instruction in public schools, the place of religion in the military, and the religion of the ruling and political classes. However, one should not minimize the value and the benefit of these laws, which so clearly adopt the ideal of full religious freedom. It may take generations for the promise to be fully fulfilled in practice, but at the very least there is currently a clear legislative basis and legal structure for future development.  

Notes

COLOMBIAN LAW OF WORSHIP

CHILEAN LAW OF WORSHIP 

[1] Executive Director, Fellows Program, Brigham Young University International Center for Law and Religion Studies; International Legal Counsel, 1998-2003, South America, for the Church of Jesus Christ of Latter-day Saints. The comments and opinions expressed herein are purely private and do not reflect any official statement or opinion by the LDS Church, the BYU Center, or any other institution. The author wishes to thank Michael Erickson and David Frol for their research and translation assistance. Copyright 2003 by Scott E. Isaacson.

[2] Law 133 of 1994 (23 May 1994) (hereinafter “Colombia Law”).

[3] Law No. 19.638(1 October 1999) (hereinafter “Chile Law”).

[4] As late as 1994, the Argentine constitution required the President and Vice-President to be members of the Catholic Church (Art. 76, Argentine Constitution of 1853, last modified in 1957), and an outdated provision held over from the colonial period continued to assign Congress the responsibility of converting the indigenous populations to the Catholic religion (Art. 67, Argentine Constitution of 1853, last modified in 1957). Currently, Argentina’s constitution affirms that the “The Federal Government supports the Roman Catholic Apostolic religion.” (Art. 2, Argentine Constitution of 1994).

The current Peruvian constitution formally recognizes the important role of the Catholic Church in the history, culture, and morals of Peru. (Art. 50, Peruvian Constitution of 1993, last modified in 2000).

The Bolivian Constitution also expressly supports the Catholic Church (Art. 3, Bolivian Constitution of 1994).

Until 1992, the Paraguayan Constitution recognized Catholicism as the state religion (Art. 6, Constitution of Paraguay of 1967) and required the President of the country to profess the Catholic faith (Art. 172, Constitution of Paraguay of 1967). The constitution adopted in 1992 brought an official end to recognition of a state religion, expressly defining the relationship of the state and the Catholic Church to be one of independence, cooperation, and autonomy (Art. 24, Constitution of Paraguay of 1992). However, a provision in this current constitution recognizes the important role of the Catholic Church in the history and culture of Paraguay. (Art. 82, Constitution of Paraguay of 1992). 

[5]Patronato National

[6] Dr. Rosa Maria Martinez de Codes, New Approximations to Religious Liberty in Latin America, paper presented at the International Religious Liberty Association Congress in Santiago, Chile, on August 26, 2003, unpublished, copy in author’s possession (translation by the author).

[7] To this date, the Catholic Church receives direct financial support from some Latin American governments and from the Spanish state. Paul E. Sigmund, Religious Human Rights in Latin America, 10 Emory Int’l L. Rev. 173, 181 (1996). (“There is also the question of the financial relationship of the government to the churches. Three constitutions, those of Argentina, Bolivia, and Costa Rica, refer to state support (sustentar) for Catholicism. In the 1960s Bolivia and Costa Rica allocated small amounts to that church from their national budget. In the 1994 budget of Argentina, $11,000,000 was assigned to Catholic bishops and seminarians. In addition, since 1979 bishops have received a state salary equivalent to 80% of the salary of a federal judge. Elsewhere in Latin America, non-discriminatory aid is given to church-owned schools, hospitals, and charitable institutions, and church property used for religious purposes is exempt from taxation.”) The Catholic Church enjoys various levels of financial support from the Spanish state: the government pays the salaries of Catholic religion teachers, taxpayers may choose to assign to the church a specific percentage of their income tax payments, the church is exempt from the payment of certain taxes, and individual and corporate donations to the church are tax deductible. In recent times, exemptions from certain taxes have been extended to other churches, and members of these churches have also been able to deduct donations from their taxes; nevertheless, the Catholic Church exclusively enjoys the privilege of income tax assignment. Javier Martínez-Torrón, Freedom of Religion in the Case of the Spanish Constitutional Court, 2001 BYU L. Rev. 713, 731–735 (2001). Furthermore, although the author does not indicate specifically, it is reasonably inferred that only the Catholic Church receives the benefit of state financial support of its religious educators. See id. Such support of the Catholic Church is often justified because of the many public charitable activities it maintains.

[8] The history of the church-state relations in Mexico was in many respects unique as compared with the rest of Latin America. Mexico has a tradition of tension or even animosity between the Catholic Church and the state, which, of course, is a topic beyond the scope of this comment. The Mexican experience is an exception to many of the broad generalizations set forth in this section of this comment. See Paul E. Sigmund, Religious Human Rights in Latin America, 10 Emory Int’l L. Rev. 173, 175 (1996) (offering Mexico as an extreme example of state hostility toward the Catholic Church).

[9] “Entidades privadas” or “persona juridica de derecho privado.” The word “derecho” could be translated as “law” or “right.” Thus, the term implies an inherent status and not just a legal status.

[10] “Entidad publica.” The entity is “public” instead of private because it serves a public function. It is in some sense like a public utility. The Catholic Church traditionally was thought to be a public institution, serving the public and filling a social need. It exists and operates under its own canon law, and not the laws of the local government.

[11] There are no religious public entities in the United States. All religious entities are, because of the separation of church and state, private entities.

[12] This justification, although based on the truth that the Vatican is a sovereign nation, is not really a valid justification for the Catholic Church’s unique legal status in Latin America. The fact that a nation may have a treaty agreement with another sovereign nation normally would not mean that the foreign entity could enter into another country and operate under its own home legal system. When a foreign government or entity wishes to conduct affairs in another country, it normally has to comply with local legal requirements. But in the case of the Catholic Church, it exists and operates in the countries of Latin America under its own canon law, independent of any local government control.

[13] None of the comments or opinions in this essay is meant to criticize or attack the Catholic Church. I have tremendous respect for the Catholic Church and for the powerful influence for good that it has had in the lives of many generations of people of Latin America.

[14] I do not mean to make light of the fact that it was a serious struggle for non-Catholic churches in their beginning years in Latin America. They did face serious social and political opposition at times from the dominant religion and even from the governments. However, those struggles are a topic for a different analysis.

[15] Argentina. Citizens may profess freely their religion (Art. 14, Constitution of Argentina of 1994), and foreigners may freely exercise their religion (Art. 20, Constitution of Argentina of 1994).

Bolivia. Liberty to worship publicly is guaranteed (Art. 3, Constitution of Bolivia of 1967, last modified in 1995). Individual equality before the law is guaranteed without respect to religious beliefs (Art. 6, Constitution of Bolivia of 1967, last modified in 1995). Church property is also given equal protection of the present laws (Art. 28, Constitution of Bolivia of 1967, last modified in 1995).

Brazil. Individual equality before the law is guaranteed (Art. 5, Constitution of Brazil of 1988, last modified in 1998), and citizens as well as foreigners are guaranteed the freedom of conscience and of belief and also the freedom of worship (Art. 5, Cl. VI, Constitution of Brazil of 1988, last modified in 1998).

Chile. The Constitution of Chile establishes that all are equal before the law and declares that there are to be no privileged groups (Art. 2, Constitution of Chile of 1980, last modified in 2000). Churches are promised the same protection for property that currently exists (Art. 6, Constitution of Chile of 1980, last modified in 2000).

Colombia. In addition to guaranteeing equal treatment before the law without respect to individual religious beliefs (Art. 13, Constitution of Colombia of 1991, last modified in 2001), the Constitution of Colombia establishes that all churches are equal before the law (Art. 19, Constitution of Colombia of 1991, last modified in 2001).

Ecuador. The Constitution of Ecuador guarantees that all persons are equal before the law without respect to their religion (Art. 23, Cl. 3, Constitution of Ecuador of 1998).

Guyana. The Constitution of Guyana protects the freedom of conscience and the freedom to manifest religious beliefs. (Art. 145, Constitution of Guyana of 1980, last modified in 1996).

Paraguay. The Constitution of Paraguay recognizes freedom of religion, and also recognizes the independent and autonomous character of religious associations. (Art. 24, Constitution of Paraguay of 1992).

Peru. The Constitution of Peru guarantees every person the right to be treated equally before the law and to be not discriminated for reasons of religion. (Art. 2, Constitution of Peru of 1993).

Suriname. The Constitution of Suriname protects against discrimination based on religious belief (Art. 8, Constitution of Suriname of 1987, last modified in 1992), and the freedom of religious belief (Art. 18, Constitution of Suriname of 1987, last modified in 1992).

Uruguay. The Constitution of Uruguay establishes that all religions are free, and it expressly states that no religion is supported by the state. (Art. 5, Constitution of Uruguay of 1967, last modified in 1996).

Venezuela. The Constitution of Venezuela guarantees the freedom of religion and worship, and churches and religious associations are guaranteed to be independent and autonomous of government control. (Art. 59, Constitution of Venezuela of 1999).

[16] The following Latin American countries have signed the International Covenant on Civil and Political Rights: Argentina, Belize, Bolivia, Brazil, Chile, Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Guyana, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Suriname, Uruguay, and Venezuela.

International Covenant on Civil and Political Rights, Article 18:

1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice. 

3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

4. The States parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.

International Covenant on Civil and Political Rights, opened for signature Dec. 16, 1966, art. 18, 999 U.N.T.S. 171, 178

The following Latin American countries have signed the American Convention on Human Rights: Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Suriname, Uruguay, and Venezuela.

American Convention on Human Rights, Article 12:

1. Everyone has the right to freedom of conscience and of religion. This right includes freedom to maintain or to change one's religion or beliefs, and freedom to profess or disseminate one's religion or beliefs, either individually or together with others, in public or in private.

2. No one shall be subject to restrictions that might impair his freedom to maintain or to change his religion or beliefs.

3. Freedom to manifest one's religion and beliefs may be subject only to the limitations prescribed by law that are necessary to protect public safety, order, health, or morals, or the rights or freedoms of others.

4. Parents or guardians, as the case may be, have the right to provide for the religious and moral education of their children or wards that is in accord with their own convictions.

American Convention on Human Rights, opened for signature Nov. 22, 1969, art. 12, OAS Treaty Series No. 36

[17] General Act on Religious Liberty (B.O.E. 1980, 177

[18] I am personally aware of failed political efforts in Peru and in Argentina to reduce the legal and practical privileges enjoyed by the Catholic Church.

[19] Colombia Law Art. 2. All translations are unofficial, by the author.

[20] Chile Law Art. 3.

[21] Colombia Law Art. 2. The Colombia law recognizes in a later section that the Catholic Church is a legal entity of public law. Colombia Law Art. 11.

[22] Chile Law Art. 17.

[23] That the basic purpose of the Chilean law was to raise other religious organizations up to the legal level of the Catholic Church was confirmed by one of the principal non-governmental advocates and participants in the adoption of the law. Juan Alberto Rabah Cahbar, attorney, Committee of Evangelical Churches of Chile, Current Challenges in the Relation Between Churches and the State in Chile, at the International Religious Liberty Association Congress in Santiago, Chile, August 27, 2003, unpublished, copy of address in author’s possession.

[24] Colombia Law Art. 3.

[25] Chile Law Art. 2.

[26] Chile Law Art. 4.

[27] It should be pointed out that the Colombia Law uses the words “religious congregations” and “churches” and “denomination” throughout its text. These words help to define and limit the scope of the law. For example, they imply that there must be a group of people and some sort of organization. Moreover, as mentioned regarding Chile, the registration process assumes a degree of order and structure that would also limit the entities that could register. Thus, in a broad sense, there is an indirect attempt to limit or define what is a religious entity in what I have termed a “positive” way for purposes of the law.

[28] Colombia Law Art. 5. The text of this provision of the law is based on a similar provision in the Spanish 1980 Organic Law of Religious Freedom. According to one commentator, this provision in the Spanish law “has led to inconsistent administrative practices and legal decisions” in Spain. Jose Antonio Sauto Paz, Perspectives on Religious Freedom in Spain, 2001 BYU L. Rev. 669 at 699. Based on this Spanish provision, which is very similar to the Colombia clause, Professor Sauto Paz concluded that “if the Spanish Registry of Religious Entities were to apply the concept of religion formulated in several court opinions and some sectors of legal doctrine, it is evident that the Registry would not be able to permit any Buddhist group to register.” Id. at n.139. It will be interesting to see if similar problems arise in Colombia.

[29] Universal Declaration of Human Rights, Article 29, paragraph 2.

[30] Colombia Law Art. 4. This language is also very similar to that contained in the American Convention on Human Rights and the International Covenant on Civil and Political Rights, both of which Colombia signed. See supra, n.16.

[31] Decision C-088/94 (March 3, 1994), Diario Oficial No. 41.369 (May 26, 1994

[32] Chile Law Art. 14.

[33] Chile Law Art. 6 (e).                                          

[34] Colombia Law Art. 6(a); Chile Law Art. 6(a)

[35] Id.

[36] Id.

[37] Id. 

[38] Id. 

[39] Colombia Law Ar. 6(b); Chile Law. Art. 6(b)

[40] Id.

[41] Colombia Law Art. 6(c) & 17. Chile Law Art. 6(b) The Chile law on this issue is quite brief, but the Colombia law expounds at some length about cemeteries and burials. The Colombia law attempts to regulate what should occur when the only cemetery in a municipality is owned by “one Church or religious confession.” The law states that a portion of such a cemetery has to be designated for dignified burials of members of other religions until the municipality can establish a civil cemetery. Colombia Law Art. 17.

[42] Colombia Law Art. 6(e); Chile Law Art. 6(b).

[43] Colombia Law Art. 6(f); Chile Law Art. 6(c). The Chile law adds that access of pastors and ministers to hospitals, detention centers and in establishments of the armed forces may be regulated by the president of the Republic, through the ministers of Health, Justice and National Defense.

[44] Colombia Law Art. 6(g); Chile Law Art. 6(d). 

[45] Colombia Law Art. 6(h); Chile Law Art. 6(d). The Colombia law adds a provision that religious or moral education can be refused.

[46] Colombia Law Art. 6(j); Chile Law Art. 6(e).

[47] Chile Law Art. 6(b).

[48] Colombia Law Art. 6(d).

[49] Colombia Law Art. 6(i).

[50] Colombia Law Art. 7(a); Chile Law Art. 7(a).

[51] “Ejecer libremente su propio ministerio.” Colombia Law Art. 7(b); Chile Law Art. 7(a). The Colombia provision is a little more extensive and adds: confer religious orders, designate pastoral responsibilities, and communicate and maintain relations in and out of the country with its members and with other churches and its own organizations.

[52] Colombia Law Art. 7(c); Chile Law Art. 7(b). 

[53] Colombia Law Art. 7(d); Chile Law Art. 7(b) & 8(a). Colombia adds a provision stating that the civil recognition of any title granted by the religious institution will be the subject of agreement with the state.

[54] Colombia Law Art. 7(e) & (f); Chile Law Art. 7(c).

[55] Id. Chile’s provision is quite brief and states that a religious institution can “announce, communicate and distribute by word, by writing or by whatever means, its own creed and manifest its doctrine.” Colombia’s provision is more ample and states: “announce, communicate and spread, by word or by writing, their own creeds to all persons . . . and to freely demonstrate the peculiar value of their doctrine for the order of society and the orientation of human activity.”

[56] Colombia Law Art. 7(g).

[57] Chile Law Art. 10 (c), emphasis added.

[58] Chile Law Art. 17.

[59] Chile Law Art. 8 (b).

[60] Chile Law Art. 9.

[61] In private conversation, the government officials who supervise the register of religions under the Chile Law have expressed concern about the impracticality of this provision. They felt that such entities created by a registered religious entity should at least be registered or listed in some way in the public records of legal entities.

[62] Juan Alberto Rabah Cahbar, attorney for the Committee of Evangelical Churches of Chile, and one of the principal participants in the preparation of the Chile Law, confirmed in his presentation at the International Religious Liberty Association Congress in Santiago, Chile, on August 27, 2003, that the genesis of this specific provision in the law was to allow other churches the same power and authority as that historically enjoyed by the Catholic Church.

[63] Chile Law Art. 19.

[64] It could be argued that the Catholic Church no longer has the legal status of an entity of public law because it has not registered under the new law. In a speech at the International Religious Liberty Association Congress in Santiago, Chile, on August 27, 2003, Juan Alberto Rabah Cahbar maintained that until the Catholic Church registers under the new law, it does not exist in Chile as a legal entity. From a purely logical position this argument may make sense, but in the practical reality of the situation, it seems very unlikely that the Catholic Church would ever register under the new law, or that this failure to register would negatively affect the church's legal status.

[65] For example, the Colombia law provides for religious marriages to be recognized by the state (Colombia Law Art. 6(d)); explicitly allows a religious entity autonomy in the application of its educational and humanitarian projects (Colombia Law Art 7(g)); and expressly eliminates any religious test for employment or public office (Colombia Law Art. 6(i)). None of these provisions is found in the Chile law. The Colombia law is also generally more expansive in its description of personal and institutional rights.

[66] “Personeria juridica de derecho privado.”

[67] Colombia Law Art. 9, paragraph, emphasis added.

[68] “Personeria juridica de derecho publico." 

[69] Colombia Law Art. 11, emphasis added.

[70] Chile Law Art. 11. Under the regulations adopted to implement the Chile Law, to register, religious entities must submit their articles of organization, which should contain: (a) the name, principal domicile, and any other possible domiciles of the entity; (b) essential characteristics as well as foundations and principles of the professed faith; (c) the names, functions, and methods of election or appointment for all administrative organs; (d) guidelines for acquisition and maintenance of property and the administration of financial donations; (e) regulations for reforming its bylaws and dissolving the entity altogether; and (f) the manner in which persons may join, remain in, and leave the religious entity, including the specific requirements corresponding to each action. 

[71] Chile Law Art 11.

[72] I have received information that one application has been denied in Chile, but do not have any reliable facts or details about the matter.

[73] Colombia Law Art. 9.

[74] Colombia Law Art. 10

[75] Id.

[76] Colombia Law Art. 12 “Ministerio de Gobierno.”

[77] Colombia Law Art. 14 (a).

[78] Chile Law Art. 8 (b) & 9.

[79] Without “fines de lucro.” Chile Law Art. 9.

[80] Colombia Law Art. 13.

[81] Chile Law Art. 15; Colombia Law Art. 14 (c). 

[82] Chile Law Art 15.

[83] Chile Law Art. 16. The limit is that the donation has to be below 25 “monthly tax units.” At the current (September 2003) exchange rate, this amount is about $1,082 U.S. It is very unclear in the law how this limitation will apply. For example, does it apply per donation? If not, how is it to be measured? This is another provision that will have to be observed further in the implementation.

[84] The issue of taxability of ministerial support and ecclesiastical employees of religions is a topic worth much further investigation as the laws relating to religious institutions continue to evolve in Latin America.

[85] Colombia Law Art. 7 Paragaph.

[86] Chile Law Art. 17.

[87] In private conversations, the government officials who supervise the registry in Chile have mentioned that an amendment to the law is being studied internally to deal with this specific problem. The proposed amendment would apparently allow the title to the property to be transferred to the new registered legal entity without any transfer taxes.

 

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