Religious Liberty and Cultural and Ethnic Pluralism in the Colombian Constitution of 1991

I. INTRODUCTION This paper reflects upon the conflicts that have arisen between the fundamental right of religious liberty and the right to ethnic and cultural pluralism, both of which are recognized in the Political Constitution of Colombia of 1991.1 Part II of this piece discusses the development of the fundamental right of religious liberty. Part III highlights the rights of indigenous peoples recognized in the new Constitution. Part IV addresses the conflicts between religious liberty and the rights of cultural or ethnic minorities. This paper concludes that by resorting to the Constitutional Court these two fundamental rights can potentially be harmonized. However, where harmonization is unsuccessful, the preservation of cultural and ethnic identity should trump the fundamental right to religious liberty. II. RELIGIOUS LIBERTY IN COLOMBIA A. Religious Liberty Prior to 1991 Religious liberty has achieved its full dimension in Colombia only since 1991. For centuries, the subject of religion has been marked by intolerance. With respect to religious matters, the nation was characterized by confessionality. This fact has been demonstrated by important and decisive historical events that have influenced the ideological foundations and doctrines of the political parties in various generations, including the current one. With limited exceptions, the political Constitutions, which the nation has known since its independence, established the undisputed religion of the majority-Catholicism-as the official religion. This had the effect of discounting other religious groups and denying these groups the possibility of vindicating their basic rights. The Constitution of 1886, which governed the nation for over one hundred years, recognized the Catholic church as the official religion of the Colombian nation, although it did guarantee liberty to all sects as long as they did not contradict Christian morals or the law. The State established agreements, or Concordats, with the Holy See which governed the relationship between the State and the Church. Under the Concordats only the Catholic Church was granted privileges in matters such as the civil status of persons, the evangelization of indigenous territories, and the financial contribution of the state to social, and above all, educational works. From the last decade of the nineteenth century until the late 1950s, the Catholic Church exercised such a vast monopoly in the Colombian culture that it could be regarded as a cultural dictator. The Concordat mandated the teaching of religion in schools, colleges, and universities, most of which were Catholic. The Catholic Church's control was even more important in the area of family law. Until 1975, no other marital union existed except the Catholic, and it was not until 1993 that the full power of the State to regulate all aspects of civil marriage was recognized. The establishment of confessionality in the nation encouraged a high degree of intolerance in religious matters. This and other factors converged to restrict Colombian democracy, creating tensions that became a fountain for diverse forms of violence. B. Religious Liberty in the Constitution of 1991 Colombia found itself within this rather anachronic frame in 1991, a year which undoubtedly signified, from the point of view of the constitutional structure, a true Copernican revolution. In a context of indiscriminate violence and debilitation of the state, a Constitutional Assembly was convened for the purpose of drafting a new constitution. The Assembly involved sectors which had previously been excluded from important political decisions. The involvement of such diverse interests in the search for peace promoted the establishment of a new constitution which, for the first time, would adequately assure the existence of fundamental rights for all citizens. All minority sectors that participated left their mark on this Constitution. …