The Truth and Its Useless Servants

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By SANDRA BITENCOURT & TARSO GENRO*

Observations on the court decision that prevented the NGO Catholics for the Right to Decide from using the term “Catholics”

“We, as Catholics, want everyone to know the truth and be its useless servants.” This is the declared purpose of the Associação Centro Dom Bosco de Fé e Cultura, an ultra-conservative Catholic organization, founded in 2016 in Rio de Janeiro, which authored the request for Catholic NGOs for the Right to Decide, created by Christian women who defend the right to abortion in cases already provided for by law, lose the prerogative of using the term Catholic.

The São Paulo Court of Justice (TJ-SP) agreed with the allegations and determined this week, 27, that the organization that defends legal abortion can no longer use the term “Católicas” in its name. The decision, by the collegiate of the 2nd Chamber of Private Law, alleges that the purpose of the association “reveals incompatibility with the values ​​adopted by the Catholic Church”, endorsing the position of the request that the women of the NGO “have the intention of implementing a progressive and anti-Catholic among Catholics”. The rapporteur for the appeal, judge José Carlos Ferreira Alves, determined that the NGO CDD withdraw the term from its name within 15 days, under penalty of a daily fine of R$ 1.

Among the main purposes of the Don Bosco center is the defense of the faith. “All the activities of the Dom Bosco Center are based on the principle — enshrined in a sublime way by Saint Thomas in the distant Middle Ages — that faith and reason do not contradict each other, but complement each other”, they highlight in the [I] Organization Facebook. According to the Dom Bosco Association, the NGO CDD's sole reason for existing is to spread the false idea that it is possible to murder children in the mother's womb and remain Catholic. They continue: “we firmly repudiate the repeated attempts by the extreme media to try to label us as ultraconservatives. We are just faithful Catholics who believe that justice needs to be done in this country.”

At this point, it is interesting to understand the vision of the need for repair by the State Justice in terms of the faith they profess. The dispute over the term “Catholic” demonstrates how essential it is to stop the patrimony of the Christian word and its effects, as a means of political power and social influence. The subject matter - abortion - of the juridical-ecclesiastical discussion is a sensitive, controversial theme, unifying different religious affiliations and normally triggered by conservatives. It is a theme that raises different positions and has the capacity to mobilize and superimpose its religious aspects on other aspects of the exercise of rights. In the communicational and symbolic field, in transformation by a digital environment with its interfaces in a possibly wider public sphere, this theme allows reflection on mechanisms and overlapping of politics, media, religion and democratic quality. A taboo theme ends up calling on different actors to speak out in a discussion that is characteristic of current modes of sociability: in a fluid, dispersed, superficial, segregated, complex and intense way, with frameworks that range from religious interrelationships to the dangerous strategy of make politics confessional.

A[ii]The Catholic NGO for the Right to Decide was founded in 1993 and declares that it fights for the secularity of the State, “which must be free from religious interference in the creation and conduct of public policies”. For this, it relies on feminist practice and theory with the purpose of promoting changes in cultural and religious patterns, considering that “religions should help people to have a dignified and healthy life, and not hinder their autonomy and freedom, especially in relation to sexuality and reproduction”. The organization exists in several countries. In Latin America, it is present in seven: Argentina, Bolivia, Brazil, Chile, Colombia and Mexico.

Considering the position of secularism and the defense of sexual and reproductive rights, the CDD recognizes the difficulties and the inevitable need for dialogue with believers/believers, since in Latin America the majority of the population declares itself Catholic or Christian from different backgrounds. While no social transformation can take place without considering this contingent of people guided by faith, with a strong tradition of a Catholic framework (especially with regard to the role of women and their obligation to motherhood), the challenges of consolidating democracy require the establishment of a State free of religious interference in the creation and conduct of public policies. It is in this tension that the discussion about abortion and women's reproductive rights takes place. It is good to remember, however, that the subject was not always a dogmatic question.

At the beginning of the 20th century, in Europe, the free practice of abortion grew supported by economic, political, social and demographic reasons, although, due to historical contexts, the issue may be controversial and ambiguous. In the 1s, an inverse process took place in Western European countries, especially those that suffered great casualties during the XNUMXst World War, which opted for a natalist policy, with the tightening of abortion legislation. France introduces a particularly severe law with regard not only to the issue of abortion, but also to contraceptive methods. However, there was not the religious appeal, but the economic imperative.

In the 30s, with the rise of Nazi-fascism, anti-abortion laws became very severe in the countries where it was installed, with the motto of raising “children for the homeland”. Abortion was punished with the death penalty. After World War II, laws remained very restrictive until the 2s, with the exception of socialist countries, Scandinavian countries and Japan (a country that had a law favorable to abortion since 60, still at the time of the American occupation). From the 1948s onwards, due to the evolution of sexual mores, the new position of women in modern society and other interests of a political-economic nature, the tendency was towards increasing liberalization. Statistics reveal that, in 60, 1976/2 of the world's population already lived in countries that presented the most liberal laws, more than half of which were approved in the last decade. Setbacks occurred in Romania, Bulgaria and Hungary (demographic reasons) and in Israel (political-religious reasons). Currently, abortion is carried out by simple request in 3% of countries, for social reasons in 35%, for medical, eugenic or humanitarian reasons in 24%; to save the mother's life, by 20%. In only 13% of countries is abortion completely prohibited. It is worth remembering that the CDD defends the current legislation for abortion. In Brazil, legal abortion is allowed in three situations: pregnancy resulting from rape; risk to the life of the pregnant woman and anencephaly of the fetus.

It is important to analyze the content of the decision contained in the understanding of the TJ-SP, on an appeal against the decision of the 1st instance, which dismissed, without resolution of the merits, the legal action of the Dom Bosco Center. In the inaugural instance, Justice had decided that the action was unfounded because only a competent ecclesiastical authority could make this type of request. The Dom Bosco institution, however, appealed, claiming that it had legitimacy to ask for the removal of the expression “Catholic”. Canon Law is recognized as a normative source, applicable in Brazil, a position established in 2005, when the country signed a bilateral agreement with the Holy See, on the protection of places, right of religious worship, protection of images and assets of the Catholic Church. The legal provisions of Canon Law, however, do not have the power to make the legal clauses of our Federal Constitution inapplicable, therefore, to relativize the force of popular sovereignty contained in the Charter.

The judgment of the 2nd. Chamber of Private Law of the TJSP (Civil Appeal 1071628-96.2018.8.26.0100) in which the Association Centro Dom Bosco de Fé e Cultura is appellant and appealed Catholics for the Right to Decide SC, prohibited the use of the word “Catholics”, to designate the aforementioned
civil association. The judgment argues that the society “Católicas por Direito de Decidi” has objectives that violate Canon Law, which “translates into an undeniable disservice to society, with no one interested in the existence of a group with a name that does not correspond to its true purpose. The ruling, referring to article 5, item XVII of the CF -which ensures freedom of association for lawful purposes- declares "flagrant unlawfulness and abuse of rights in the concrete case, due to the notorious violation of morals and good customs", in the performance of "society required”, using the name “Católicas”.

Such a decision would be up to a Congregation of the Doctrine of the Faith, of the Roman Curia, which replaced –previously- what was designated Supreme and Sacred Congregation of the Inquisition- but incompatible with democratic republicanism, the secularity of the State and –directly- with principles and norms of the Constitution of 88. Canon Law can be “received” in the legal order -normative and concrete- but it cannot superimpose itself on it, unilaterally defining, for example, the historical meaning of “morals and good customs” or stipulating the names that seem “coherent” for people to designate themselves in the public scene.

It can be seen that the ruling is based on certain categorical imperatives of a conservative religious ideology, which seeks to prefigure a
illegality without help to the normative order. And so he does, when he speaks of “undeniable disservice to society”, on the part of a group whose name
-according to the decision of the TJSP- “does not correspond to its true purpose”, with “abuse of rights in the concrete case”. dealing with
a society made up of people who refer to themselves as “Catholics”, but who do not claim to speak for the Catholic Church – they only speak in the
their “condition” as Catholics – what is concluded is that the judgment prohibits, in fact, a subjective religious identity, freely chosen and
associate (art. 5º XVII), whose formation does not depend on the permission of the Church and the State. Questions that are premises: Does an association that defends the maintenance of laws related to legal abortion, in force in Brazil, have illegal purposes? In order to declare oneself of the Catholic faith, as a religious identity, is it necessary to have permission from the State or the Holy See?

Article 5, VI of the CF provides that “freedom of conscience and belief is inviolable”; VIII, that “no one shall be deprived of rights on account of religious belief”; o X, that “intimacy” and “image” are inviolable, protection of rights that -by elementary republican reasoning- are connected with the right to “create associations”, anchored in article 5 XVIII of the Major Law. The judgment opted, in its dogmatics devoid of principles, for an interpretative method that starts from concepts and ideologies, which are sent directly to the
fact and do not pass through the sieve of the “values” that are in the Constitution. The reasoning, in this case, wants to superimpose religious conservatism on
values ​​(moral and political) that are constitutional norm, which are -respectfully- secular and republican.

Here is the lesson of Minister Barroso on the normative force of the Constitution in contemporary law. After stating that the historical phase of modern democracy has been overcome, in which the Constitution was considered only “an essentially political document, an invitation to public authorities to act”, he states that it has now become binding: “That is to say, the norms constitutional provisions are endowed with imperative, which is an attribute of all legal norms, and their non-compliance will trigger the mechanisms of coercion, of
forced greeting”[iii](Barroso, 2009, p.59). Here, the “forced compliance” involves rejecting the unconstitutional claim of the Dom Bosco Center, to prohibit the use of a religious identity, freely chosen as a right of citizenship, intended to characterize a right of association protected by the Constitution.

In this same week, the [iv]Centro Dom Bosco organized a live on its social networks to commemorate the decision and make public the conservative positions of the organization, according to them, endorsed by the Justice. The occupation and attention of the public space is another bias of the conservative advance strategy. It is possible to associate the opening of public space with the existence of a democratic society and culture, defending plurality as a guarantee of democratic stability. However, there are conflicting positions that are inconsistent with democratic precepts. In this sense, considering the freedom of expression of Catholic women, it is worth questioning what place religion would have, especially as an organization occupying decision-making bodies in the State, blurring the outline of a clear boundary between public and private and complicating the definition normative of what or who should be part of that space.

However, the occupation of religions in non-state spaces of collective, associative and cultural life is increasing and expanding. Or especially, in spaces where the State is often absent. The role of the churches becomes even more preponderant, not only in influencing values, conduct and behavior, but also in the material organization of civil society, always with a crossing of the public/private border.

Here in Brazil, recent years have revealed an intensification of these relationships, with a disproportionate representation of private religious interests in political institutions. For the emerging religious actors, threats to the Constitution are not a concern, since they understand occupying a space that is due to them, since they have expressive numbers of a representation constituted by unequivocal results, within the democratic game, with capacity to mobilize various material, symbolic, visibility, social power and people resources, more and more people. They play by the rules, aiming beyond the legislative and executive houses, the justice system itself. They have their truth, which is considered unappealable, because it comes from faith. The rest is useless, whether that “rest” is the rights and precepts of the republican order.

* Sandra Bitencourt is a journalist, PhD in Communication and Information, researcher at NUCOP/PPGCOM-UFRGS.

*Tarsus in law is a lawyer and former Minister of Justice.

 

Notes


[I] https://www.facebook.com/cdbosco/

[ii] https://catolicas.org.br/nossa-historia/

[iii] Neoconstitutionalism/Coordinators: Regina Quaresma, Maria Lúcia de Paula Oliveira and Farlei Martins Riccio de Oliveira; 1. Ed-Rio de Janeiro: Forense, 2009.

[iv] https://www.youtube.com/watch?v=8azyUmgPSWY.

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