So why are candidates for the Honduran Supreme Court using religious, not secular, grounds to make legal arguments in their public job interviews?
The Honduran Constitution is quite clear about the separation of Church and State. It states in Article 77 that
"[The Constitution] guarantees the free exercise of all religions and beliefs without the pre-eminence of any one of them, when not contravening the laws and public order. Ministers of the various religions may not hold public office or engage in any form of political propaganda by invoking religious motives or basing themselves in it, to the religious beliefs of the people.
Artículo 77. Se garantiza el libre ejercicio de todas las religiones y cultos sin preeminencia alguna, siempre que no contravengan las leyes y el orden público.
Los ministros de las diversas religiones, no podrán ejercer cargos públicos ni hacer en ninguna forma propaganda política, invocando motivos de religión o valiéndose, como medio para tal fin, de las creencias religiosas del pueblo."
Leonidas Rosa Suazo points out in his essay "Religion and the Contemporary Judicial System" that this principle has thus been encoded in a variety of Honduran laws, including the Ley de Codigo Penal (articles 210-213), the Ley de Policia y Convivencia Social (especially article 145, 149).
Likewise, there is clear juricial prohibition on the interaction of political parties and religion. Parties or movements within them cannot advocate for a particular form of religion.
There's clearly a tension between law and practice here. The Lobo Sosa government established, and later was forced to abolish, a Ministro de Culto as a cabinet level position. Lobo Sosa appointed the pastor of a specific evangelical church, Carlos Portillo, to the post. The Honduran Supreme Court ruled unconstitutional both that position, and an associated rule establishing what a "religion" was to be. Lobo Sosa was forced to fire his Minister.
As Rosa Sauzo points out, the Honduran state fails spectacularly when it comes to refraining from placing religious obligations on its citizens. The state assumes at times, that everyone is Catholic, or at least Christian, in the establishment of government holidays like Holy Week, and in the constant benedictions given at government and especially military ceremonies. Public national prayer meetings are common, both in the government, and in the military.
What Rosa Suazo doesn't address is the degree to which religion is the template and justification for legal reasoning, as manifest in the candidate interviews held this week.
The Nominating Commission, which will eventually give 45 names to the Honduran Congress to select 15 new Supreme Court Justices, held public hearings where it, and members of the public, questioned candidates for 20 minutes each on their ties to political parties and a variety of legal issues.
The list of candidates currently stands at 97 candidates. That list of 97 was whittled down from a larger list. Many didn't pass the lie detector and financial investigation portion of the preliminary investigation into candidates. Surprisingly, 10 candidates who failed that portion still are on the 97 person list. Of the 11 current members of the Honduran Supreme Court who are seeking re-election to the court, only 4 passed the first stage of screening.
The US government has intervened heavily in the selection process.
During the first phase, the US gave Honduras a list of 20 of the candidates that it argued needed to be eliminated from the list. They were.
During the current phase of candidate evaluation, the US government gave Honduras a list of 24 candidates that needed further investigation. The Nominating Committee has not decided what, if anything, it will do about the latest US intervention. Those candidates will be interviewed with the others remaining on the list.
In this context the public 20 minute interviews began. On the first day, 11 candidates were interviewed. The interviews were structured so that the candidate was given 3 minutes for an opening statement, 12 minutes to hear and answer questions from the Nominating Committee, and 5 minutes to hear and answer questions from the sparse audience.
First up was Celino Aguilera, currently a member of the Judiciary Committee, the committee that reviews judicial behavior and punishes Justices and Magistrates. Asked about same sex marriage, he replied that religious and juridical precedents establish that marriage is between a man and a woman.
Candidate Servando Alcerro Saravia, a lawyer with a masters degree in theology and a doctorate in divinity, was asked how he would resolve a hypothetical case in which the Honduran Congress had approved same sex marriage and it was being challenged in court.
He replied that the Honduran constitution doesn't allow same sex marriage, which is true. Article 112 establishes that a man and a woman have the right to contract marriage and be equal under the law. It specifically prohibits same sex marriages and excludes recognizing such marriages legally constituted in other jurisdictions that allow them.
However, he also said that he would have to take into account the universal guide that God established that marriage is between a man and a woman. Asked if being a minister was compatible with being a judge, he replied that "Jesus Christ was chief lawyer (abogado de los abogados)" and "Lawyering comes out of Christian principles".
We don't know how many of the other candidates were, or will be, asked about same sex marriage.
The prohibition was only put into the constitution in 2004-2005, so this is an issue that seems to have emerged in parallel with the global move towards legalizing marriage equality.
In the two cases where testimony was published in Honduran media, however, questioning about the issue is more illuminating the degree to which separation of church and state, called for in the Honduran constitution, has been eroded. It's one thing to cite Honduran law in support of a hypothetical legal decision. It is quite another thing to cite religion as the basis for possible action as a future Supreme Court justice.
And no matter what Servando Saravia thinks, the practice of the law in Honduras is not supposed to be based on "Christian principles". It is supposed to be based on legal precedent.