of said norm. First, it will attempt to determine whether there is a difference in treatment that may
be discriminatory between different religions. Second, it will seek to establish whether the power of
religious communities to grant certificates of suitability, and more generally, to appoint religious
education teachers who teach in public schools, is in compliance with the American Convention. Third,
it will consider whether Decree 924 establishes any difference in treatment between persons based
on the categories protected by Article 1(1) of the American Convention, which may be discriminatory.
Finally, it will analyze whether it establishes procedures to protect and safeguard the rights of persons
against discriminatory or arbitrary acts contrary to the Convention.
94.
In relation to the first point, the Court notes that the content of this decree does not establish
differences in treatment between different religious dogmas or provisions for teaching a particular
religious creed. To that extent, the decree treats all religions equally. Regarding the second point, it
is important to recall that this Court has established that, according to Article 12 of the American
Convention, as well as in the international corpus iuris (supra paras. 73 to 83), the right to freedom
of religion is a right with an individual and a collective dimension, which includes several guarantees,
one of which is the right of parents and, where appropriate, guardians, to have their children or wards
receive the religious and moral education that is in accordance with their own convictions (Article
12(4)).
95.
With respect to the above, the expert witness Paolo Carozza referred specifically to the various
legal systems and legal traditions that offer very different constitutional models with respect to the
relationship between religion and the State. In particular, he indicated that:
The various legal systems and legal traditions of the states in the inter-American sphere offer very
different constitutional models with respect to the relationship between religion and the State [… ],
which will necessarily have an impact on how the State would fulfill its obligations under Article
12(4); in some States, such as Peru or Chile, this could mean the active provision of religious
instruction in public schools, while in others, such as Mexico or the United States, this would be
constitutionally inadmissible and the State’s obligation should be understood as having a rather more
indirect and passive content. However, and notwithstanding reasonable differences on the question
of how the State should fulfill its affirmative obligations under ACHR 12(4) [sic], it is clear that the
American Convention (consistent with other international human rights standards) allows States to
fulfill their obligations by supporting the direct teaching of religion in public schools. 140
96.
The existence of this right derived from Article 12(4) was also recognized by the expert
witnesses Estefanía Esparza 141 and Rodrigo Uprimny. 142 On this point, Rodrigo Uprimny considered
that the inclusion of optional religious education classes in public schools could be a way of complying
with the obligation established in Article 12(4) of the American Convention. In that sense, he
considered that the requirement of certification of suitability by the religious authorities and the
possibility that the latter should be the ones to select the persons who teach religious education, would
not be practices that in themselves are contrary to the American Convention and the principle of
equality and non-discrimination.
97.
Based on the foregoing considerations, in relation to the second point under analysis, this Court
understands that one of the guarantees of religious freedom, namely, the right of parents, and where
applicable, guardians, to have their children or wards receive the religious and moral education that
is in accordance with their own convictions, may imply - depending on the regulatory framework of
each State - that the religious authorities have the ability to select the teachers of religion who teach
classes on their doctrine. This authorization could be materialized through certificates of suitability,
as is the case in Chile. In this sense, the validity of Decree 924 is not per se contrary to the Convention,
and may even constitute one of the various ways of incorporating the provisions of Article 12(4) of
the Convention into domestic law.
140
Statement of Paolo Carozza rendered by affidavit (evidence file, folio 873).
141
Statement of Estefanía Esparza during the public hearing.
142
Statement of Rodrigo Uprimny during the public hearing.
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