Separation of Church and State?

The Honduran constitution establishes Honduras as a secular nation, and calls for its elected and high government officials to be secular. 

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.

Churches

The concept of a church and how to define one is hard for Honduran legislators to grasp.

For most of Honduras' history, you needed to have a formal act of Congress declaring your organization a religious entity to officially be considered a church. Until now, only the Catholic Church had been declared a "church" by Congress.

Instead, most churches in Honduras today operate as the Honduran equivalent of 501(c)(3) civil non-governmental organizations.

Why, exactly, is the Honduran government in the business of deciding what's a real church?

The Honduran constitution establishes Honduras as a secular state with freedom of religion and the separation of church and state. In Article 77, on the topic of religion, it states:

The right to exercise any religion or worship is guaranteed without any precedence (for one over the others) as long as they don't go against the public order. Ministers of the many religions may not hold public office, nor promote political materials, even by invoking religious principles or values as a means to that end.

Honduras has signed international treaties relevant to religious freedom, such as the International Declaration of Human Rights (articles 2, 18 in particular), the Interamerican Democratic Letter (article 9), and the American Convention on Human Rights (article 12).

The Honduran Penal Code enshrines the right of religious freedom by making it a crime to interfere with someone's religion (articles 210-213).

Honduran law also addresses the separation of church and state. The Law of Political Organizations imagines that political entities should be divorced from subordination to or dependency on ministers of any religion or sect. Political parties are prohibited from using religious symbols (article 80). It is illegal to tell someone to join or leave a political party for religious beliefs or reasons (article 104).

The treaties, constitution, and law are pretty clear. All religions are permissible; church and state are separate; and no religion should be favored.

But in practice, Honduras favors two religious groups in particular in its government. The Catholic Church and the Confraternity of Evangelical Churches are asked for input by all government commissions. They hold reserved seats in some government commissions, involvement not extended to other religions. By having a position on the nominating committee they influence the selection of candidates for the Supreme Court.

That existing favoritism and involvement of these two church bodies makes it not particularly surprising that Congress in 2010 passed the Ley Marco de la Íglesia Evangelica de Honduras (decreto 185-2010) to give a blanket declaration of juridical personhood to any church that was a member of the Confraternity of Evangelical Churches.

Passage of this law was set against a background of threats by Africo Madrid, Interior Minister, to review every NGO in the country and deny many of them NGO status, particularly religious ones that he felt were "fringe". The law transformed evangelical churches from NGOs with a religious and charitable mission, to churches with juridical personhood, no longer NGOs, no longer under threat from the particular prejudices of one government minister.

Article 2 of the law says that an Evangelical Church bases its actions in the teachings of Jesus Christ and the sacred writings of the Bible. Article 3 shares with us the values of an Evangelical Church:

1. Respect for life and the gift of God, his preservation and dignification.
2. Integrity based on truth, sincerity, rectitude and compromise.
3. Unity, based in the love of God and one's fellow mankind in total respect of their denominations and doctrinal convictions.
4. Fidelity to the eternal principles contained in the word of God and the Church and the body of Christ.
5. The family as the basis of the church, Society, and the Nation; its integration, harmony, solidarity and stability.
6. Social responsibility, as the human being is indivisible, requires material and spiritual solidarity, giving it dignified housing, food, clothing, health and basic education.
7. Sociopolitical responsibility, the church submits itself to authority, respecting the law, because there is no authority except on the part of God and those that have it, have been established by God.
8. Only god is just and has permitted that people exercise justice to punish and instill fear of those that do bad and not of those who do good, as a path to achieve peace, security, and the prosperity of the Nation.
9. Excellence: all the actions of the Evangelical Church of Honduras are done as if for God, characterized by searching and finding the best results for people and the Country, optimizing with wisdom the resources of the faithful, and
10. Leadership: the Evangelical Church of Honduras promotes and makes clear the wise and good administration of all of the assets and talents which God has placed under his administration, along with the spiritual and material resources.

See the problem? Its not that all these principles are bad; any religion might conceivably adopt them, although we find the claim of divine authority for the political authorities (point 7) somewhat disturbing for a secular state.

But the biggest problem is that Congress, in this law, is making these principles of church behavior into legal norms. Congress was never granted the power to codify the religious beliefs of its citizens. This violates Article 77 of the constitution; it is government establishment of religion, pure and simple.

And of course, there is the glaring fact that the law restricts the definition of evangelical church to those that adhere to these beliefs and practices and are members of a specific organization, the Confraternity of Evangelical Churches. Remember that in the background Africo Madrid was threatening to remove the NGO status of religious NGOs he felt were "fringe": these were not members of the Confraternity.

The Confraternity, a constellation of evangelical churches in Honduras, does not represent all evangelical churches. There are evangelical churches that don't belong to the Confraternity either because they don't want to, or they don't share some of the required beliefs for membership.What happens with this law: are they suddenly not evangelical churches? Congress has established a religion that includes some and excludes others.

Article 6 gives the Confraternity the sole right to represent the evangelical church before the government and to communicate with the government. Article 7 says that to convert an existing organization from a civil NGO to a religious organization, the Evangelical Confraternity of Honduras must petition the Interior Minister (Africo Madrid, remember) to change their status.

Article 8 says the Evangelical Confraternity can exclude any organization that violates the norms included in this law, as well as its own regulations. By membership in the Confraternity, churches get exoneration from all taxes and surcharges, including the free importation of goods and services (Article 4, clause 11).

Any church that calls itself evangelical must get the permission of the Evangelical Confraternity to call itself "evangelical" whether it wants to be an NGO or considered a "church", just as a church needs the permission of the Catholic church to call itself "catholic".

It is implicit in the text of Article 7 that evangelical organizations should associate with the Evangelical Confraternity. It's only through petitions from the Confraternity that they may convert themselves from civil to religious legal entities. This probably violates the legal right to free association.

Should a government be able to set up a particular organization as the sole way to petition or communicate with the government and government officials?

It's not particularly surprising that the Sala Constitucional of the Supreme Court found the law unconstitutional. It was challenged by evangelical churches that were not part of the Confraternity, either because they did not want to be members or because of their beliefs. The Public Prosecutor filed a report with the Court finding the law unconstitutional, and the Sala Constitucional of the Supreme Court concurred.

So now pressure is being exerted by both the leadership of Congress, and Porfirio Lobo Sosa for the full Supreme Court to reverse the decision of the Sala Constitucional.

Here's to the constitutional separation of church and state and the protection of religious freedom in Honduras today.