—Jorge González, Pontificia Universidad Javeriana (Bogotá)
Since a 2006 ruling, the Colombian Constitutional Court has pushed towards the legalization of abortion. However the implementation has had its difficulties partly in light of the interpretation of the three cases in which abortion is permitted: when the mother’s health or life is in danger as a result of the pregnancy, when there is a serious condition of the fetus that makes his/her life untenable or when the pregnancy is a result of sexual abuse or assault, incest or a non-consensual artificial insemination. The Court has also taken steps giving rights to same-sex couples, for example by extending social security rights to same sex couples and permitting these couples to file for adoption. Currently Colombians are awaiting a final decision by the Constitutional Court on the legalization of same sex marriage.
These developments have been fiercely opposed by conservative Catholics. For instance, the Church has told Catholic doctors and hospitals to refrain from performing abortions and Catholic groups also picket outside legal abortion centers, where they pray for women who are aborting holding pictures of dismembered fetuses highlighting that abortion is a sin. They asked one of the biggest private (and Catholic) universities of the country to abstain from holding a debate about abortion and the University largely endorsed the request arguing that from now on they would review who are the speakers in panels about this (and other topics) in order to guarantee a “real” academic and “balanced” conversation around these polemic issues. On the rights of same-sex couples, the panorama is similar: Catholics forced the same University to abstain from holding in campus a yearly gay cinema show, the “Ciclo Rosa”. Further, the church has insisted that heterosexual and gay marriage cannot be equated, and are wary about the education of children of same sex couples.
The legal crystallization of the Catholic view has come, surprisingly, from the state. Currently, the Public Ministry is headed by conservative Catholic, Alejandro Ordóñez. According to article 277 of the 1991 Constitution, the Head of the Public Ministry is in charge, among other things, of protecting human rights, overseeing law enforcement and defending the interests of society. He intervenes before the Constitutional Court on every abstract judicial review case. He was elected by the Senate in 2008 and reelected in 2012. His credentials as a militant Catholic were no secret, as he had already published books in which he stressed Catholic faith as the only source of morality. However, what has been interesting about his performance as a public official is that when the Public Ministry renders an opinion about issues such as abortion or same sex marriage, explicit Catholic arguments disappear under a set of technical and formalistic arguments that nonetheless support the Catholic perspective. In sum, legal formalism, and not open religious debate, apparently dictates Ordóñez’s conclusions. Thus, the Public Ministry argues that they are neutrally interpreting the law, rather than pushing a religious perspective.
How can we explain the paradox of the reemergence of Catholicism through secular discourse? A historical argument seems most relevant. One of the many innovations of the 1991 Constitution was to downplay the influence of Catholicism in Colombian political debate. The preamble of the previous 1886 Constitution established that God was the “supreme source of all public power”; moreover, the 1957 constitutional reform that was approved through a plebiscite and inaugurated a period called the National Front, leading to the power sharing of public offices between the two traditional parties, established that Roman Catholicism was fundamental to the pursuit of national unity. Additionally, Colombia signed a Concordat with the Vatican state in 1887; a new one was signed in 1974 and stated that Roman Catholicism was a “basic element of the common good and the integral development of the national community.” Article XI of the 1974 Concordat established that the government would partially fund Catholic educational institutions and Article XII stated that Catholic families had the right to receive this type of education, thereby conferring on the Catholic Church the power to organize the curriculum of religious studies in public schools. Though the 1886 Constitution established freedom of religious conscience, Catholicism enjoyed a privileged position.
The debates within the Constituent Assembly of 1991 around this issue reflected a battle between three distinct views: conservatives who wanted to maintain the role of Catholicism, some groups (including indigenous communities) which wanted to eliminate references to religion, especially to Catholicism, and a third group which was something of a compromise position. The third group largely prevailed. Thus, the 1991 Constitution softened the role of God in the preamble and committed to religious freedom and to equality of all religions. The preamble did not acknowledge that God was the source of all authority; the constituents “merely” “called upon the protection of God” but acknowledged that the people were the source of all political power. Additionally, the constituents did not mention Catholicism at any point of the constitutional text and established religious liberty and the equality of all cults and congregations in article 19. The result could be read as a triumph for those seeking to secularize the State, but it also contained a tension since a monotheistic vision of the divinity was still imbued in the Constitution.
The tension would become evident in some of the decisions that the Constitutional Court issued during the 1990s. Although most decisions defended secularization and religious liberty and equality, there were also some opinions that reflected the continuing influence of Catholicism. The decisions about abortion during the 1990s were particularly symptomatic of the issue of secularization. One of the first decisions where the Court addressed abortion argued that the Colombian legal system, in the Civil Code, protected the right to life of the fetus. The decision stated that abortion’s punishment did not violate religious liberty to the extent that the exercise of rights had limits, in this case the right to life of the fetus.
In 1997 the Court rendered a decision that reached similar conclusions but contained problematic religious language. In this decision the Court called upon Congress to regulate the issue; it was not an order to legalize abortion but at least to establish some mitigating circumstances for those participating in this “offense.” The majority opinion quoted from two papal Encyclicals asserting the sacred character of the right to life in Catholic thought and the complex circumstances of the modern world that led many people in anxious circumstances to make decisions -such as abortion- that radically contradicted “the rights of man.” This led a minority of the justices to sign a dissenting opinion in which they harshly criticized the judgment on the grounds that it was imposing a Catholic idea about life, thus violating principles of religious neutrality enshrined in the 1991 Constitution.
Theological sources disappeared after this 1997 decision. Catholic conservatives learned a lesson: the 1991 agenda would not permit explicit religious arguments in public discussions. But the actions of the Public Ministry show that Catholicism is still having an influence disguised as a pseudo-secular perspective: last February, for example, the Constitutional Court joined the opinion of Catholics and the Public Ministry holding that sex education was not compulsory for elementary school students. The Court considered that compulsory sex education should be mandatory only for students over age fourteen, thus implying that a specific course on this subject was not entirely justifiable in elementary schools. Catholics and the Public Ministry argued, respectively, that children under fourteen should receive sex education from their families and not from “strangers” at school and that such a course could encourage sexual behaviors that would increase the risk of teenage pregnancies and sexually transmitted diseases. The decision was a victory for conservative Catholics and a defeat for progressives.
This decision, rendered only a month ahead of the same sex marriage judgment, shows a difficult agenda for sexual and reproductive rights’ activists. Even if the Court declares that same sex marriage is constitutional, the Public Ministry and its Catholic agenda have contributed to the creation of a conservative momentum in issues surrounding sexual and reproductive rights. As of 2015, Colombian public opinion appeared to be against the legalization of abortion and same sex marriage.
Twenty-five years after the promulgation of the 1991 Constitution and its secularizing agenda, Catholicism is back and is actively working against progressive realizations of sexual and reproductive rights. This has happened despite the fact that public discourse, including judicial decisions, is not explicitly religious. The secularization of constitutional reasoning through a commitment to public reason has not been an effective tool to combat the return of Catholicism to public debate. The current question for constitutional theorists is if we prefer to keep arguing as if religious conscience was absent from public debate, or if we need to rethink our assumptions and restructure our terms of debate to candidly include religious arguments. The latter option might open a culture struggle. But Colombians may already be living in one while explicit constitutional discourse seems to ignore it.
Suggested citation: Jorge González, Catholicism strikes back? The Problematic Secularization of Colombian Constitutional Discourse, Int’l J. Const. L. Blog, Mar. 23, 2016, at: http://www.iconnectblog.com/2016/03/catholicism-strikes-back-the-problematic-secularization-of-colombian-constitutional-discourse/
 Corte Constitucional, C-355/2006, Jaime Araujo & Clara Inés Vargas.
 Corte Constitucional, T-349/2006, Rodrigo Escobar
 Corte Constitucional, C-683/2015, Jorge Iván Palacio.
 See the campaign at: http://www.citizengo.org/es/sy/30780-cancelen-foro-sobre-aborto
 WRadio, Rector de la Universidad explica suspensión del debate sobre aborto, November 13, 2015, available at: http://www.wradio.com.co/escucha/archivo_de_audio/rector-de-la-universidad-javeriana-explica-suspension-de-debate-sobre-el-aborto/20151113/oir/2996826.aspx
 El Tiempo, Cancelan Ciclo Rosa en la Javeriana por presiones del catolicismo, Agosto 13, 2013, available at: http://www.eltiempo.com/archivo/documento/CMS-12990512
 See: Mauricio Albarracín, El Manuscrito de Juventud del Procurador, October 3, 2013 at: http://lasillavacia.com/elblogueo/blog/el-manuscrito-de-juventud-del-procurador-45785
 See, for example, on same sex marriage: Procuraduría General de la Nación, Concepto 4876, 6 de julio de 2010.
 For example, an opinion about the constitutionality of an 1887 statute that stated that custom could be a source of law if it embodied a practice that was coherent with “Christian morals.” (Corte Constitucional, C-224/94, Jorge Arango).
 An interesting review of the decisions about secularization and religious liberty is Leonardo García Jaramillo, El Influjo del Principio de Laicidad en el Constitucionalismo Colombiano, 11 Estudios Constitucionales 425 (2013).
 Corte Constitucional, C-133/94, Antonio Barrera.
 Corte Constitucional, C-013/97, José Gregorio Hernández.
 Paul VI, Humanae Vitae (1968) and John Paul II, Evangelium Vitae (1995).
 Corte Constitucional, C-013/97, Salvamento de Voto: Alejandro Martínez, Eduardo Cifuentes, Carlos Gaviria.
 Corte Constitucional, Comunicado 7, Febrero 24, 2016, available at: http://www.corteconstitucional.gov.co/comunicados/No.%2007%20comunicado%2024%20de%20febrero%20de%202016.pdf
 See: RCN Radio, La Iglesia Califica de Positivo que se haya Frenado Cátrdra de Educación Sexual para Preescolar y Primaria, Febrero 24, 2016, available at: http://www.rcnradio.com/nacional/iglesia-califica-positivo-se-haya-frenado-la-catedra-educacion-sexual-preescolar-primaria/
 Caracol Radio, No hay que dar Clase de Educación Secual en Prescolar y Primaria: Procurador, Febrero 17 de 2016, available at: http://caracol.com.co/radio/2016/02/17/judicial/1455742448_970938.html
 On abortion, See: Mauricio García VIllegas, El Aborto y la Opinión Pública, in El Espectador, 18 de septiembre de 2015, available at: http://www.elespectador.com/opinion/el-aborto-y-opinion-publica; and on same sex marriage see: El Tiempo, Respaldo Oficial a Matrimonio Gay no tiene Apoyo en el Congreso, Agosto 2 de 2015, available at: http://www.eltiempo.com/politica/congreso/matrimonio-de-parejas-del-mismo-sexo-en-colombia/16181635
 On public reason, see: John Rawls, Political Liberalism (1993)