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By reason alone: Catholicism, constitutions, and sex in the Americas

Julieta Lemaitre*
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Catholic backlash against the liberalization of abortion and same-sex marriage laws in the Americas has been gathering momentum through the use of constitutional and human rights arguments. While Bishops Conferences as well as individual priests and the Vatican itself continue to frame sexual and reproductive rights in the language of God and faith, lay Catholic lawyers have translated theology into constitutional and human rights arguments to halt and reverse liberal abortion and same-sex marriage laws. Their arguments invoke reason instead of faith, based on the claim that the right use of reason in legal arguments leads to the same conclusions as theological reasoning. This article examines the main arguments recently used by lay Catholic lawyers in the United States, Colombia, Mexico, and Brazil and relates them back to the Vaticans position on human life, religious freedom, and gender equality. This article examines these parallels, their implicit theological basis, as well as their tensions, both rhetorical and substantive, with mainstream constitutionalism.

In the last decade Catholic constitutionalism has spread across the Americas. Its constitutional and human rights arguments defend what the Catholic church considers the non-negotiable issues in public life: the criminalization of abortion, the creation of legal constraints on assisted reproduction and reproductive research, the prohibition of euthanasia and assisted suicide, and the limitation of marriage rights to heterosexual couples.1 While, unlike other forms of religious activism, this is an agenda common to several Christian churches, Catholic constitutionalism eschews

Associate Professor, Universidad de los Andes, Law School, Bogot, Colombia. LLB 1995, MA 1998, SJD 2007. jlemaitr@uniandes.edu.co. The author wishes to thank Reva Siegel for her help and encouragement in writing this paper, as well as Alejandro Madrazo, Monica Arango, and Katherine Romero, and the editors of this issue, for comments on previous drafts. She especially thanks Sonia Correa both for her comments and editorial generosity. The mistakes that remain are the authors alone. See, among other documents cited in this paper: Congregation for the Doctrine of the Faith, Doctrinal Note on Some Questions Regarding the Participation of Catholics in Political Life, November 21, 2002, available at http://www.vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_ doc_20021124_politica_en.html.

ICON (2012), Vol. 10 No. 2, 493511 0 No. 0, 119 ICON

doi: 10.1093/icon/mor060 doi:10.1093/icon/mor060

2 494 ICON 0 (2012), 119 ICON 10 (2012), 493511

appeals to scripture, religious authority or revelation, and instead claims to argue from the position of reason alone. Fittingly, its advocates are not the clergy but rather the lay faithful, often occupying public ofces or other positions of inuence. They believe that moral truths are inscribed in a universal natural law available to human reason, and therefore faith is not necessary to understand and support the teachings of the church on these issues. Instead, they appeal to constitutional and human rights law in courts and legislatures. In light of this trend the question must be raised whether these arguments can nd a home in contemporary constitutionalism, assuming that reason is the criterion that would allow them to do so. This article retraces some of the constitutional actions performed by the lay faithful in the United States, Colombia, Mexico, and Brazil. It also demonstrates how these legal arguments diverge from mainstream constitutionalism, in spite of their apparent convergence, and argues this divergence is substantial rather than simply rhetorical. An initial clarication is in order: it is a fact that at least in these countries, Catholic lawyers have used similar arguments. It is also a fact that many researchers draw connections between Catholic religious organizations (especially Opus Dei), antiabortion NGOs, individual Catholic actors, and the Vatican. However, close examination shows there is no denitive data on concerted legal action across jurisdictions. There are, however, very specic instructions from the Vatican to all Catholics calling upon them to actively oppose the legalization of abortion, stem-cell research, and same-sex marriage. Technically, these instructions are an important mandate for religious Catholics. It is also a fact that there are a number of global organizations engaged in this policy agenda, as well as numerous international meetings that discuss these matters. Moreover, there are many parallels between the arguments and actions of Catholic actors in different countries. This article examines these parallels, their implicit theological basis, as well as their tensions with mainstream constitutionalism. The social movement implications of these coincidences will be addressed in a following article.

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1. Catholic constitutionalism and its advocates

1.1. New natural lawyers in the United States
In November 2009 the New York Times called Robert P. George, a Princeton professor and activist Catholic lawyer, the most important contemporary conservative Christian thinker in the United States, heralding a growing Catholic inuence on conservative politics in the United States.2 This inuence is directly related to the revival of natural law based on Catholic arguments about human reason, explained by George in several books and articles. While Catholic leadership might be a new feature, the power and effects of conservative Christian activism characterize United States politics at least since the late
2

David Kirkpatrick, The Conservative Christian Big Thinker, N.Y. TIMES, December 20, 2009, available at http:// www.nytimes.com/2009/12/20/magazine/20george-t.html.

3 By By reason alone: Catholicism, constitutions, and sexthe the Americas 495 reason alone: Catholicism, constitutions, and sex in in Americas

twentieth century; arguably, the global conservative Christian revival originates there. It is also closely related to the ascendance of the Christian right in the Republican party since Ronald Reagan, and its powerful inuence in electoral politics. This inuence has spread across the globe as U.S. Christian churches lead an aggressive international agenda centered on the defense of traditional gender roles.3 But George heralds not only a new position of leadership for Catholicism in this scenario traditionally dominated by Protestant denominations; he also heralds a new form of Christian activism, less furiously anti-intellectual than the militant Christian right mobilized by the Republican Party in the last decades. This respectability is closely related to the appeal to natural law as the foundational premise of legal, or at least constitutional, arguments. This appeal eschews the authority of faith or revelation and aims to persuade through reason alone: its central claim is that humans qua creatures of God are endowed with the innate ability to distinguish right from wrongan ability that includes universal recognition of natural law. This reasoning can be used to reach across religious schisms: for example, it holds together the 2009 Manhattan Declaration promoted by a variety of Christian leaders and drafted by George.4 The Declaration defends three basic moral issues independently of religious afliation: human dignity connected to the right to life from conception, heterosexual marriage as a natural institution, and the defense and protection of religious freedom.5 These are the same issues Conservative Catholic lawyers defend in their briefs in various courts.6 While conservative Catholic arguments about natural law have had little echo in courts thus far, as the issue of same-sex marriage inches toward the Supreme Court, these arguments are growing stronger. They are being tested in state courts: in 2010 George and two Princeton students presented an amicus brief in defense of Californias proposition 8 arguing marriage is by nature geared toward biological reproduction, and hence solely heterosexual.7 In an article which is an extended version of the
3

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For U.S. participation in Vatican II and U.S. Catholicism generally, see JOHN COURTNEY MURRAY & WALTER J. BURGHARDT, WE HOLD THESE TRUTHS: CATHOLIC REFLECTIONS ON THE AMERCIAN PROPOSITION (2005). For Catholic participation in the U.S. Christian right in the international arena, see DORIS BUSS & DIDI HERMAN, GLOBALIZING FAMILY VALUES: THE CHRISTIAN RIGHT IN INTERNATIONAL POLITICS (2003). For its spread to Latin America, see JARIS MUJICA, ECONOMIA POLITICA DEL CUERPO LA REESTRUCTURACION DE LOS GRUPOS CONSERVADORES Y EL BIOPODER (Political Economy of the Body the Restructuration of Conservative Groups and Biopower) (Promsex, 2007); Roberto Blancarte, El porqu de un estado laico (Reasons for laicism), in FOMENTANDO EL CONOCIMINENTO DE LAS LIBERTADES LAICAS (Promoting Knowledge of Laic Liberties) 27 (George Lliendo, Violeta Barrientos, & Marco Huaco eds., Universidad de San Marcos / el Colegio Mexiquense, 2008). The Manhattan Declaration (2009) available at http://www.manhattandeclaration.org/the-declaration/ read.aspx. These issues are also presented with reference to God in two organizations afliated with George: the American Principles Project (http://www.americanprinciplesproject.org) and the National Organization for Marriage (http://www.nationformarriage.org, founded in 2007). For a sum and analysis of their arguments, see NICHOLAS BAMFORTH & DAVID A.J. RICHARDS, PATRIARCHAL RELIGION, SEXUALITY AND GENDER: A CRITIQUE OF NEW NATURAL LAW (2007) . Robert P. George, Sherif Girgis, & Ryan T. Anderson, Brief of Amici Curiae in Support of Reversal and the Intervening Defendants-Appellants, No. 10-16696, available at http://www.ca9.uscourts.gov/datastore/g eneral/2010/10/25/amicus12.pdf. These arguments, in an extended form, were published in a recent article in the Harvard Journal of Law & Public Policy, and the object of an op-ed debate with the NYU School of Law Professor Kenji Yoshino. See Robert P. George, Sherif Girgis, & Ryan T. Anderson, What is Marriage?

4 496 ICON 0 (2012), 119 ICON 10 (2012), 493511

brief, they argue this conjugal (rather than emotional) basis of marriage requires no appeal to religious authority because marriage is the type of social practice whose basic contours can be discerned by our common human reason. . . .8 Whether the Supreme Court accepts this interpretation or not, the appeal to universal human reason serves a political purpose: it helps overcome the tension between the religious right and libertarian, often secular, conservatives, giving Catholicism a more prominent role in the movement.9 It also signals a new trend in religious legal scholarship, which has been generally limited to less prestigious law reviews and forums.10 Furthermore, given the increasing presence of Christianity in Supreme Court decisions, and given four Catholic justices, natural law argument by reason alone has the potential to inuence future decisions.11 In this context, George becomes the harbinger of a legal form of argument which eschews religious references but not conservative-Christian goals in the U.S.: the dismantling of Roe v. Wade, the legal blockage of same-sex marriage, and complete parental control over information on sex and sexuality.12

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1.2. The Colombian Procuradura

Since 2009 the Procuradura General de Colombia (the Ofce of the Inspector General of Colombia), a powerful watchdog institution, has been headed by conservative

8 9

10

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34 HARV. J.L. & PUB. POLY 245 (2010). On the debate with Professor Yoshino, see Kenji Yoshino, The Best Argument Against Gay Marriage and Why it Fails, SLATE, December 13, 2010, available at www.slate. com/id/2277781. See also Patrick Lee, Robert P. George, & Gerry Bradley, Marriage and Procreation: The Intrinsic Connection, PUBLIC DISCOURSE, March 28, 2011, available at http://www.thepublicdiscourse. com/2011/03/2638. Proposition 8 was deemed unconstitutional in Perry v. Schwarzenneger, 704 F. Supp. 2d 921 (N.D. Cal. 2010) available at https://ecf.cand.uscourts.gov/cand/09cv2292/, following a series of cases in Massachusetts and New York that found the federal Defense of Marriage Act DOMA (Pub.L. 104199, 110 Stat. 2419, enacted September 21, 1996, 1 U.S.C. 7 & 28 U.S.C. 1738C) violates the federal constitution. Most analysts assume the issue will eventually be revised by the Supreme Court. See Commonwealth of Massachusetts v. United States Department of Health and Human Services, 698 F.Supp.2d 234, Mass. Dist. Ct. (2010), available at http://pacer.mad.uscourts.gov/dc/cgi-bin/recentops.pl?lename=tauro/pdf/commonwealthofmassachusettsvhhsjuly82010order.pdf; Pedersen et al. v. Ofce of Personnel Management; Windsor v. United States, No. 10-CV-1750, Conn. Dist. Ct. See George, Girgis, & Anderson, What is Marriage?, supra note 7, at 247. On Georges success, see Kirpatrick, supra note 2; Anne Morse, Conservative Heavyweight: The remarkable mind of Robert P. George, CRISIS, September, 2003, at 3642. For a debate on the vitality of religious legal scholarship, see David A. Skeel, The Unbearable Lightness of Christian Legal Scholarship, 57 EMORY L.J. 1471 (2008), and the rejoinder David S. Caudill, On the Rhetorical Invention of a Failed Project: A Critical Response to Skeels Assesment of Christian Legal Scholarship, 40 SETON HALL L. REV. 971 (2010). On the increased presence of Christianity in Supreme Court decisions, see Alex Shulman, Kulturkampf and Spite the Rehnquist Court and American Theoconservatism, 22 LAW & LITERATURE 48 (2010). A related issue is the introduction of human dignity as a key concept with distinct Catholic roots: see Reva Siegel in this issue. On anti-Catholic bias, see Patrick McKinley Brennan, Are Catholics Unreliable from a Democratic point of view?, Villanova Univ. School of Law Working Paper Series Paper 150 (2010). See Reva Siegel, Dignity and the Politics of Protection: Abortion Restrictions Under Casey/Carhart, 117 YALE L. J. 1694 (2008), and Reva Siegel, The Rights Reasons: Constitutional Conict and the Spread of WomanProtective Antiabortion Argument, 57 DUKE L.J. 1641 (2008).

5 By By reason alone: Catholicism, constitutions, and sexthe the Americas 497 reason alone: Catholicism, constitutions, and sex in in Americas

Catholics linked to the Opus Dei. Its most visible leaders are Inspector General Alejandro Ordoez and his delegate for womens rights, Ilva Myriam Hoyos.13 Ordoez, a former judge at the Consejo de Estado, was well known for his conservative Catholic decisions as well as for a book against gay rights.14 Hoyos, a long-time professor in Opus Deis Universidad de la Sabana, was previously the vocal president of the antiabortion NGO Red Futuro Colombia. Under their joint leadership, the Procuradura has used its capacity as a human rights monitor to promote a restricted interpretation and application of legal abortion.15 They have also promoted an ample interpretation of conscientious objection and pressured public health institutions that provide legal abortions with messages insisting they respect doctors conscientious objection.16 In his briefs before the Constitutional Court, Ordoez, appealing to reason alone, has also consistently and vigorously opposed marriage and adoption rights for same-sex couples as being against human nature.17 Ordoezs and Hoyoss lay Catholic activism is a new phenomenon in Colombia. While the country has been a confessional state through most of its republican existence, and the Catholic church has always maintained a powerful political presence, this inuence was limited to the clergy and especially to the National Conference of Bishops. During the last decade, however, the National Conference, as well other Catholic leaders, such as Jesuit provincials, have focused their attention on civil and political rights, paying less attention to issues of sexual morality.18 This apparent lack
13

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For an extensive articles about Ordoez and his link to conservative Catholicism, including the dissident branch of Lefebvristes, see Norbey Quevedo, El misterio de los lefebvristas [The mystery of Lefebvres followers] EL ESPECTADOR, February 20, 2010, available at www.elespectador.com/noticias/ investigacion/articulo188861-el-misterio-de-los-lefebvrista. ALEJANDRO ORDOEZ, HACIA EL LIBRE DESARROLLO DE NUESTRA ANIMALIDAD [Toward a Free Development of Our Animal Nature] (Universidad Santo Toms, 2003). The Constitutional Courts decision 355 (2006) allows for the liberalization of abortion, that is, the decriminalization of abortion in case of rape, threat to the health or life of the mother, or serious fetal defect making independent life impossible. For the Procuradura, this does not mean abortion may now be included in national health plans, and in fact it has insisted that health institutions need to ensure counseling for women who ask for legal abortion, as well as doctor and nurses right to conscientious objection. See Procuradura General de la Nacion, Informe De Vigilancia De La Sentencia 355-06 [Follow-up Report on Decision 355-06], August 15, 2010. On pressure on public ofcials, see Procurador instruye a funcionarios a que respeten el derecho de los mdicos de oponerse al aborto [Procurador instructs public ofcials to respect doctors right to oppose abortion], EL TIEMPO, May 14, 2009, available at http://www.eltiempo.com/archivo/documento/CMS-5186001; Exige vigilar si se est respetando el derecho a la objecin de conciencia; Procurador pide ms vas de control para la prctica del aborto [He demands protection of the right to conscientious objection; the Procurador asks for more controls on abortion], EL TIEMPO, May 15, 2009, available at http://www.eltiempo.com/archivo/ documento/MAM-3445011. Procuradura General de la Nacion, Concepto ante la Corte Constitucional 4876 (2010) and Concepto ante la Corte Constitucional 5110 (2011). For example, a full year elapsed after the Constitutional Courts 2006 decision liberalizing abortion before the church made a public pronouncement. See Jornada nacional del nio por nacer pide la Iglesia Catlica en mensaje de Semana Santa [The Catholic Church asks for a national day for the unborn child in its Holy Week message], EL TIEMPO, March 23, 2007, available at http://www.eltiempo.com/archivo/documento/ CMS-3490368; Mensaje de la Iglesia Catlica [Message from the Catholic Church against gay marriage], EL TIEMPO, April 7, 2007, available at http://www.eltiempo.com/archivo/documento/MAM-2438612.

6 498 ICON 0 (2012), 119 ICON 10 (2012), 493511

of interest on the part of the church hierarchy has been compensated by the activism of conservative lay Catholics who resort to high-impact litigation, lobbying in Congress, and the use of the internet to mobilize youth.19 In 2006, when the Constitutional Court issued Decision 355/06, liberalizing abortion, conservative lay Catholics contested the decision in forty separate lawsuits (many of which did not make any reference to religion). In 2008, another unsuccessful conservative attempt, this time before the highest administrative court, the Consejo de Estado, argued emergency contraception was illegal because it led to abortion.20 Without making appeals to religion, the brief argued that life begins at conception21 In 2009, another conservative lawsuit before the same court argued that the Ministry of Healths regulation of legal abortion was unconstitutional because the administration did not have the power to regulate an issue that impinged on the right to life.22 This time, they won the case, again without reference to religion.23 The actions performed by the Procuradura also reect the same pattern: its ofcials avoid religious arguments and resort to Constitutional premises to advocate for conservative positions on sexuality and reproduction. This is quite evident, for instance, in the content of the norms dened by Hoyos to guide mandatory counseling for women seeking abortions. They make extensive information on the adverse consequences of abortion central to informed consent, require parental consent, and establish that public ofcials have a constitutional right to conscientious objection.24 Other documents use a similar approach to attempt to exclude abortion from sexual education, as do their briefs against same-sex marriage and adoption rights for same sex couples.25 They have won no other cases; however, Ordoezs mandate is far from over.
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According to Sandra Mazo of Catholics for a Free Choice-Colombia, their Congressional watch reports these groups have silently adopted the same type of lobbying efforts used by feminist groups, including visiting congressmen, issuing press reports, etc. More effectively, they are using a ve minute video against abortion to convince Congressmen and Congressmens aides to support the antiabortion cause. See Interview with Sandra Mazo, Bogot, Colom. (May 7, 2010). In 2011 the Conservative Pary presented a bill to amend the constitution to include the phrase life begins at conception. The person who led the suit, Carlos Humberto Gmez, had led in 2001 an unsuccessful suit against the Criminal Code article that allowed a judge to suspend a sentence for abortion in certain cases. See Corte Constitucional [C.C.] [Constitutional Court], 2001, Sentencia C-647, available at http://www. corteconstitucional.gov.co/relatoria/2001/C-647-01.htm (Colom.). Consejo de Estado [C.E.] [Highest Court on Administrative Laws], June 5, 2008, Radicacin no. 11001 0324 000 2002 00251 01, Boletn C.E. no. 25 (June 16, 2008) (Colom.). The Consejo de Estado accepted instead the medical understanding of pregnancy as starting when the fertilized egg nestles in the uterus, twelve to fteen days after conception. Ministerio de la Proteccion Social [Ministry of Health], 2006, Decree 444 (Colom.). Consejo de Estado [C.E.] [Highest Court on Administrative Laws], October 15, 2009, Auto Provisional ordering the suspension of Decree 444 of 2006, File (Expediente) 2008 00256 00. Procuraduria General de la Nacion, August 15, 2010, Informe de vigilancia de la sentencia 355-06. Catholic backlash against this measure has been particularly erce; they dubbed the measure la ctedra del aborto, loosely translated as abortion education, a name that caught on in the press giving it negative publicity. See Enseanza sobre el derecho al aborto llegar a los colegios determina la Corte Constitucional [The Constitutional Court decrees abortion education to reach schools], EL TIEMPO, October 20, 2009, available at http://www.eltiempo.com/archivo/documento/CMS-6392647.

7 By By reason alone: Catholicism, constitutions, and sexthe the Americas 499 reason alone: Catholicism, constitutions, and sex in in Americas

1.3. Mexico: Catholic constitutionalism after a decade of PAN politics

In Mexico, throughout most of the nineteenth and twentieth centuries, the Constitution and the ruling party established a secular government, while Catholicism dominated popular culture.26 Liberal and revolutionary constitutional reforms took explicit measures to contain the Catholic churchs power, for example, denying churches legal personhood, barring them from owning property, limiting worship to private public spaces, banning the wearing of religious clothing and the display of religious signs in public spaces, banning political parties afliated to religious organizations, and banning the participation of priests in political activities and public (but not private) education.27 It also explicitly forbade the ministers of any cult from speaking publicly against the government or existing laws.28 After the Cristeros rebellion of the 1930s, however, the status quo implied little to no enforcement of these norms, which maintained a mainly symbolic importance. These measures were gradually eroded in the late twentieth century, already under the leadership of the Institutional Revolutionary Party (PRI), but especially after its defeat in 2000, which led towards the increase in power of the National Action Party (PAN)a party that originated in the Cristeros war and today has a strong Catholic right-wing faction.29 By 2010 conservative PAN Catholics have expanded their presence at all levels of the administration, including at decision making posts.30 In the same period, conservative Catholic civil society organizations have multiplied, and most have as their explicit aim the advancement of the Vaticans agenda on sexuality and reproduction. Some of these organizations have direct links to international networks of catholic pro-life activists, especially to the U.S.-based Human Life International, but also to right-wing Catholic organizations such as Opus Dei and Legionnaires of Christ.31 In 2008, two conservative Catholics occupied key positions in the state apparatus: Eduardo Medina as Attorney General and Jos Luis Soberanes as director of the National Human Rights Commission. Separately, they launched legal proceedings against Mexico Citys 2007 liberal abortion legislation, but the Mexican Supreme

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31

The ruling party until the late nineties was the Partido Revolucionario Institucional (Institutional Revolutionary Party) known as the PRI. On secularism and Catholic inuence in Mexico, see Roberto Blancarte, The Changing Face of Religion in the Democratization of Mexico, in RELIGIOUS PLURALISM DEMOCRACY AND THE CATHOLIC CHUCH IN LATIN AMERICA 225 (Frances Hagopian ed., 2009); Roberto Blancarte, Churches, Believers, and the State in Mexico, in MEXICOS DEMOCRATIC CHALLENGES 785 (Andrew Seele & Jacqueline Peschard eds., 2010). Some of these principles were already in the liberal constitution of 1857 but especially developed in the revolutionary constitution of 1917. Constitucin Poltica de los Estados Unidos Mexicanos [C.P.], as amended, Diario Ocial de la Federacin [DO], 5 de Febrero de 1917, article 130 (Mex.). See also id. article 3 (laic education), article 24 (freedom of religion), and article 27 (limitation on property rights for the church). See ALVARO DELGADO, EL YUNQUE LA ULTRADERECHA EN EL PODER (Anvil the Extreme Right in Power) (2003). For more on these transformations, see Mujica, supra note 3. See also ELIZABETH PLACIDO, CHALLENGING RELIGIOUS FUNDAMENTALISMS IN MEXICO THE SEPARATION OF CHUCH AND STATE AND REAFFIRMATION OF WOMENS SEXUAL AND REPRODUCTIVE RIGHTS (2010). See references infra note 33.

8 500 ICON 0 (2012), 119 ICON 10 (2012), 493511

Court upheld the law.32 In 2010, the subsequent Attorney General and a conservative Catholic, Arturo Chavez, initiated legal proceedings against Mexico Citys 2009 same-sex marriage law, but the Supreme Court of Justice again ratied the law.33 In both cases several of the briefs used lay Catholic arguments, particularly the claim that human life begins at conception, without making reference to scripture or revelation.34 Catholic activists around the country instigated modications to several state constitutions to declare that life begins at conception, thus effectively barring any change in abortion laws.35 At the federal level, there is an even more signicant struggle for the Constitution. Two separate bills propose to add to the Constitution the phrase that Mexico is a secular state and that the church and the state must be kept separate. At the same time, conservative Catholics, represented by Federico Dring, a PAN Congressman in the Chamber of Deputies, have presented another bill aimed at replacing the constitutional language on freedom of conscience with religious freedom, the latter implying stronger protection for churches than the former.36 This change would grant the faithful the right to actively pursue and defend religious objectives in public life. When tabling the proposal at the Congress plenary, Dring did not use religious arguments but spoke of the human right to religious freedom. In 2011, the debate continues, as the hundredth anniversary of the Mexican revolution is a memorable occasion for both conservative Catholic efforts to completely dismantle Mexicos estado laico, as for liberal attempts to defend it.37

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The Mexico City law allows abortions to be performed in the rst twelve weeks of pregnancy. Both actions were accumulated into one and the Mexican Supreme Court decided in 2008. For the cumulative actions see Suprema Corte de Justicia de la Nacin, Engrose, Accin De Inconstitucionalidad 146/2007 y su acumulada 147/2007. Promoventes: Comisin Nacional de Losderechos Humanos y Procuradura General De La Repblica. Ponente: Ministro Sergio Salvador Aguirre Anguiano. Encargado Del Engrose: Ministro Jos Ramn Cosso Daz, Mxico, Distrito Federal, August 28, 2008. On le with author. I thank Alejandro Madrazo Lajous for providing me with copies of the aforementioned actions and the cumulative document (engrose). For a prole of Soberanes highlighting his Catholicism, see Liliana Alcntara, Los virajes de Soberanes [Soberanes changes of route], EL UNIVERSAL, June 03, 2007, available at: http://www. eluniversal.com.mx/nacion/151489.html. Chvez has been linked by investigative reporter Alvaro Delgado, to El Yunque (the anvil), the alleged secret organization whose goal is to reposition Catholicism as a political force in Mexico. On this story see Arturo Vega, Yunque, la organizacin secreta [Anvil, the secret organization], EL UNIVERSAL, January 9, 2011, available at http://www.eluniversal.com.mx/notas/735945.html. Chavezs arguments against abortion are transcribed in the Mexican Supreme Courts decision: Suprema Corte de Justicia de la Nacin, Accin de Inconstitucionalidad 2 de 2010 (Mex.). See PLACIDO supra note 30. See also ESTEFANIA VELA, CURRENT ABORTION LEGISLATION IN MEXICO (2010), available at http://www.cide.edu/publicaciones/status/dts/DTEJ%2050.pdf. Federico Dring, Propuesta que reforma el primer prrafo y deroga el prrafo tercero del artculo 24 de la Constitucin Poltica de los Estados Unidos Mexicanos [Proposal to reform the rst paragraph and eliminate the third paragraph from artcle 24 of the Constitution of the United States of Mexico], GACETA PARLAMENTARIA, January 4, 2006, available at http://gaceta.diputados.gob.mx/Gaceta/59/2006/ene/20060104.html. For a recent attempt by another PAN senator Alejandro Zapata, see Senado de la Repblica (Mex.), Iniciativa del Senador Alejandro Zapata, GACETA DEL SENADO, March 17, 2011, available at: http://www.senado. gob.mx/index.php?ver=sp&mn=2&sm=2&id=7793&lg=61.

9 By By reason alone: Catholicism, constitutions, and sexthe the Americas 501 reason alone: Catholicism, constitutions, and sex in in Americas

1.4. Brazil: Conservative Catholic pressure on the ruling left party

In Brazil, as in other countries of the region, the Catholic church has remained strongly inuential throughout the countrys political history. In spite of the anti-clericalism of many of the founders of the Brazilian republic in 1889, and of the secular rule of separation between state and church, these rules were never strictly nor consistently implemented. Church hierarchy retained direct access to key state actors, or else operated as a key mediator in circumstances of political strife. Furthermore, in the last three decades Evangelic churches have rapidly expanded. Evangelic pastors and lay leaders have intensively engaged with politics at all levels, and today the Evangelic caucus in Congress constitutes one the more powerful groups. Their alliance with Catholic politicians on advancing a conservative Christian agenda has kept the debate more closely tied to religious arguments than in the other countries studied in this article, just as it has reinforced Catholic inuence on the ruling leftist party. The ascendance of Christian references in political discourse is also related to the attitude of the Workers Party (PT) in power since 2002. While the party has been historically an outspoken defender of human rights, including womens rights, it has also had a history of alliances with the left wing of the Catholic church, dating back to the struggle against the dictatorship. Not surprisingly, the PT administration has consistently avoided confronting the Catholic and Evangelic churches. It even signed an agreement with the Holy See providing the Catholic church a number of privileges extended by Congress to all churches.38 This has had a direct effect on sexual and reproductive health policies. For example, in January 2010 when the Catholic church publicly opposed the draft of the III National Human Rights Plan (which included the decriminalization of abortion, provisions for same-sex couples, and a prohibition on the public display of religious symbols), the government quickly withdrew the offending articles.39 In 2010, for the rst time in Brazilian political history, abortion appeared as a central issue in the debates leading towards general elections. On at least two occasions Dilma Roussef, Lulas candidate and now the president of Brazil, had publicly declared that she considered abortion a matter of private decision, a major public health issue, and that it should be decriminalized. However, under the strong pressure of conservative Catholic bishops and Evangelical pastors, she retreated from this position during the campaign.40
38

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39 40

Other religious sectors, especially Evangelical leaders protested against these privileges gained by the church and in order to appease these forces the Congress approved as well a General Act on Religions which gave other churches the same treatment. For a short presentation of these events, see KAUARA RODRIGUES, JULIANO ALESSANDER, NATALIA MORI, & SORAYA FLEISCHER, RELIGIOUS AND POLITICAL FUNDAMENTALISMS AS A THREAT TO WOMENS RIGHTS: CHALLENGES IN THE LEGISLATURE IN BRAZIL (2010). Id. For the Marie Claire interview, see Carla Gullo & Maria Laura Neves, A Mulher do Presidente, 217 MARIECLAIRE, April 2009, available at http://revistamarieclaire.globo.com/Marieclaire/0,6993, EML16978261739,00.html. For her position as a candidate, see the TV debate on abortion in which Rousseff says she is personally against abortion, available at: http://noticias.uol.com.br/ultnot/multi/2010/08/18/04021 93668E49913C6.jhtm?debate-folhauol-nao-ha-mulher-a-favor-do-aborto-diz-dilma-0402193668E4 9913C6.

10 502 ICON 0 10 (2012),19 ICON (2012), 1 493511

The PTs deference to the Catholic church and Evangelic sectors can be interpreted as electoral pragmatism but it is also the result of increasing lay conservative activism, red up by the popes visits in 1997 and 2007.41 Since 2007 there has also been an upsurge in legislative proposals against legal abortion, including the controversial statuto do nasciturostatute of the unborn which grants rights to fetuses and embryos.42 Its goals echoed the 2008 annual Fraternity Campaign promoted by the National Conference of Brazilian Bishops on the right to life; the Campaign materials and events focused centrally on attacking abortion, stem-cell research, assisted reproduction, and euthanasia. Catholic constitutional arguments of the type described in this article are also on the rise. A good example is the lawsuit against the Bioseguranza (Biosecurity) law that was taken to a higher court by conservative Catholic Claudio Fonteles, the First Federal Attorney of Lulas government, who contested the possibility granted by the law for stem-cell research to use embryos. Fonteles contested the constitutionality of the law with the request to the Federal Supreme Court to limit the scope of the law to embryos that could not produce life or that had been frozen three years prior to the adoption of the law.43 The Supreme Court called public audiences to discuss the matter in which a wide range of experts were invited to give their views, including well known scientists, as well as conservative Catholic voices. One of these expert witnesses was the lawyer Ives Gandra Martins who is known for having close links with Opus Dei. Neither Fontelles nor Martins appealed to religious texts or Catholic teachings.44 Their arguments were mainly constructed in constitutional terms because, in their view, the law violates the constitutional protection of the right to life and human dignity. They also strongly defended the idea that life begins at conception and, to prove that, they produced declarations signed by various scientists emphasizing the genetic singularity of the zygote and drawing an analogy to the individuality of human life.45 The Court, however, did not concur. The next section of this essay examines arguments used by George, Ordez, Chvez, and Fonteles, as well as by the other lay Catholic lawyers in the different briefs mentioned above. It identies the common points, and traces their origin to Catholic

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41

42

43 44 45

See Washington Castilhos, La visita del Papa a Brasil, contexto y efectos, SPW Working Papers No. 5, July 2008, available at http://www.sxpolitics.org/es/wp-content/uploads/2009/04/wp_2008_esp-nal.pdf. In 2007 lay Catholic activism also showed its hard-line position with the mass prosecution of 900 women for abortion. Traditionally, abortion has been very rarely prosecuted in Brazil. Cf. Rodrigues et al, supra note 38, at 4. Proyecto Legislativo (P.L.) 478 (2007) (Braz.) which also establishes abortion as a crime against humanity without exceptions; P.L. 489 (2007) (Braz.) eliminates the rape exception from criminalization of abortion and creates grants for raped women who raise the resulting child. Supremo Tribunal Federal (S.T.F.), May 15, 2005, Acao Direta de Inconstitucionalidade No. 3510 (Braz.). Id. Id. Press articles around this issue reproduced and analyzed in Jose Aparecido de Oliveira, Zeus Versus Prometeu o Embate Discursivo Nos Artigos Opinativos Favorveis e Contrarios Pesquisa con Clulas Tronco Embrionrias [Zeus against Prometheus: The argumentantive thrust of opinions for and against stem cell research], 1925 (February 2008) (unpublished MA Thesis, Universidade Methodista do Brasil, available at http://ibict.metodista.br/tedeSimplicado/tde_busca/arquivo.php?codArquivo=1246.

By reason alone: Catholicism, constitutions, and sex the Americas 11 By reason alone: Catholicism, constitutions, and sex inin the Americas 503

theology, particularly to its conservative version promoted by Joseph Ratzinger (Benedict XVI). The essay goes on to show the theological importance of the premises that uphold these arguments, as well as their tensions with mainstream constitutionalism.

2. The arguments
2.1. Constitutional and human rights law reects an objective moral order
The briefs examined in the previous section, as well as related articles and books by the same authors, often refer to the link between human rights and natural lawa specic type of natural law framed in terms of virtue. It is in essence Thomas Aquinass medieval version of natural law, grounded in two core premises. The rst is that humans are created by God according to a divine plan; the second that humans qua creatures are, at least in part, an image or reection of God and as such share some of his qualities, including reason. In other words, every human life has a purpose (Gods plan) and a nature (a reection of his image). Gods plan requires that we be virtuous; our nature enables us, through reason, to gure out how. For Catholics, God wanted humans to understand their purpose and nature, and act accordingly. This is why he endowed us all with reason which, used correctly, will lead to virtuous action regardless of religious conviction. Natural law is precisely the aspect of virtue which is accessible to all through reason alone, without the need of faith or revelation.46 This is but one philosophical version of natural law, which is of course central in the history of liberal democracies. However, in liberal political thinking natural law is not necessarily geared to virtue, and even if and when it is virtuous, its virtue is not related to the rational knowledge of Gods will. For example, Hobbess conception of natural law/right reects a notion of human nature that is essentially geared toward survival and self-interest (the state of nature). More importantly, Kants understanding of the possibility of individuals to reach ethical knowledge through reasoning is founded on the assumption that it is not possible to know God and Gods will and plans. Most Enlightenment philosophers opposed the idea that humans can achieve knowledge of transcendental truths about morality, and thus opposed Aquinass version of natural law. Thinkers as diverse as Burke (in Reections on the Revolution in France) and Bentham (in Anarchical Fallacies) considered the French Declaration of the Rights of Man, and its appeal to natural rights, a logical error or, to quote Benthams famous dictum, nonsense upon stilts. The Catholic church, however, insists on its own pre-Enlightenment version of natural law even when it accepted in Vatican II the political implications of Enlightenment, especially the existence of secular, democratic states. Aquinass philosophy was rekindled by the nineteenth-century revival known as neo-scholasticism. Based on medieval philosophical ideas about the world, its main conclusion was that the myriad manifestations of being do not deny the truth of the oneness of being, or of
46

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THOMAS AQUINAS, SUMMA THEOLOGIAE, at 1a2ae, 91.2.

12 504 ICON 0 10 (2012),19 ICON (2012), 1 493511

its participation in transcendental being (in other words, God). In twentieth-century terms, this means that the varied claims made by science, which seem to deny religious truths (especially claims about the evolution of the species), merely show variations in forms of life (being) that do not change the essential truth of creation.47 The former relate to the existence of the world, the latter to its essence. Thomistic reasoning, and its claims of universal moral truth, is at the root of Catholic claims of the essential nature of humans and constitutional rights. For the faithful, these rights pertain to the essence of humanity (and are hence eternal and universal) while their concrete historical and political manifestations are part of the myriad manifestations of being. If there is a single transcendental (and therefore universal) moral truth, it must be reected in a correct interpretation of human and constitutional rights. The core of the divergence between Catholic constitutionalism and what, in the absence of a better term, I call mainstream constitutionalism, lies in the Catholic concept of a universal moral order, not in the more familiar problem of using religious arguments in the public square. In fact, Catholic constitutionalists preempt arguments aimed at limiting the use of religious arguments by insisting they can, and will, argue by reason alone. This claim, however, does not address the contemporary constitutional cultures difculty to fully embrace the idea of a universal moral ordera premise of Catholic constitutionalism. Clearly, even when it is possible to nd occasional references to self-evident truths in constitutional discourse, these references are generally made in reference to historical and political contexts. In contrast, Catholic natural law neither depends on nor takes political contexts into consideration. Furthermore, Catholic constitutionalisms persistent appeal to a higher truth, accessible to nonbelievers by reason alone, is the ground for the churchs moral superiority and its unwillingness to accede to political debate on moral issues. This is basically an antidemocratic conception of the content of constitutional and human rights, and is at odds with the core premises of mainstream constitutionalism, especially in respect to its foundational understanding of the contingent nature of truths resulting from political debate.

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2.2. The right to religious freedom trumps other constitutional values

The Catholic churchs articulation of the right to religious freedom must be understood in the light of its historical rejection of secular states. The Vaticans recognition of religious freedom and the abandonment of its promotion of confessional states

47

For contemporary Catholic understanding of the tension between faith and reason, see the Vaticans position in Pope John Paul II, Fides et Ratio (Encyclical), September 15, 1998, available at http://www .vatican.va/edocs/ENG0216/_INDEX.HTM, and Pope John Paul II Veritatis Splendor (Encyclical), June 8, 1993, available at http://www.vatican.va/edocs/ENG0222/_INDEX.HTM.

By reason alone: Catholicism, constitutions, and sex the Americas 13 By reason alone: Catholicism, constitutions, and sex inin the Americas 505

occurred quite late in the nineteenth century.48 Within the church, many opposed churchstate separation on the grounds that Catholicism represented the manifestation of Gods truth on earth and that it expressed the knowledge of an objective moral order. To separate this moral knowledge from the stewardship of human destiny was to deny its objective nature and to accept a state that would be indifferent to this truth (moral indifferentism), or claim there are various truths (moral relativism).49 Both are considered serious errors. In Vatican II, however, the church reconciled the acceptance of secularism and the belief in its own moral superiority by linking the emerging institutions and discourses of international human rights law to its own denition of natural law.50 Pro-secularist leaders argued that, since both faith and reason lead to the knowledge of the objective moral order, the incorporation of human rights in state procedures and actions could lead secular states through reason to a morality that did not need to be narrowly Catholic.51 They also insisted that the secular state could guarantee church independence based on religious freedom in a way that historically confessional states had not.52 The latter argument meant that the churchs acceptance of a secular state depended on the existence of a generous right to religious freedom, including the right to preach and teach; the right to worship; the right of the church to establish its own rules and authorities; to pass moral judgment in temporal matters; to form educational, cultural and other associations; to own property and to use its property as it sees t.53 In other
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In confessional states the relationship between church and state has been one of cohabitation, not separation, even when the balance of power has not always beneted the church. In Spain and its colonies the state had to approve of priests assigned to national parishes and could veto them. Throughout the nineteenth century, various popes adopted ofcial positions rejecting liberalism and secularization. See correspondence between the popes Gregory XVI and Pius IX: letters Mirari vos (1832), Singulari nos (1834), Quanta cura, and Syllabus (1864). Leo XIII also condemned the separation of church and state and freedom of religion, insisting the state in historically Catholic countries had to be a Catholic statea position maintained by his successors: Pius X (see Vehementer nos (1906), still insisting on the falsity of the liberal creed of separation of church and state), Benedict XV, Pius XI, and Pius XII. In contemporary Catholic doctrine, separation of church and state hinges on each being a distinct and independent political entity. The church understands itself as an independent political entity (and a societycomposed of the clergy and the faithful), with legal relationships with the State, mediated by international treaties. These treaties generally grant the church privileges, such as tax exemption. Church independence is also manifested in that it has its own laws (canonic law) regulating not only internal affairs, but also issues having to do with the faithful (for example, marriage and divorce), as well as the churchs relationship with the state. For the churchs perspective on this issue, see VICENTE PRIETO, RELACIONES IGLESIA ESTADO: LA PERSPECTIVA DEL DERECHO CANONICO (2005). On the role of church in the rise of international human rights, see SAMUEL MOYNE, THE LAST UTOPIA: HUMAN RIGHTS IN HISTORY (2010). The main Vatican II document that articulates this position is Pope John XXII, Pacem in Terris (Encyclical), 11 April, 1963, available at http://www.vatican.va/holy_father/john_xxiii/encyclicals/documents/hf_jxxiii_enc_11041963_pacem_en.html. Pope Paul VI, Dignitatis Humanae (Encyclical), December 7, 1965, available at http://www.vatican.va/archive/ hist_councils/ii_vatican_council/documents/vat-ii_decl_19651207_dignitatis-humanae_en.html. This rights are also in canon law: see, e.g., Can. 747 which establishes that the church has the right and duty, independently of any human authority, to preach the gospel to all peoples as well as to proclaim moral principles, even those referring to temporal matters, and pass judgment on human business if human rights or the salvation of souls demand it.

14 506 ICON 0 10 (2012),19 ICON (2012), 1 493511

words, the argument implies the separation between church and state in conjunction with the existence of a strong and free church, and it insists this is a matter of natural, not positive law. The Vatican II model of church and state separation has a further particularity: while the church, as an institution with its hierarchies and laws, accepts to be separated from the hierarchies and laws of the state, Catholics themselves are not. The Catholic laity is called to sanctify the state through their actions, presence, and participation, as a means to materialize the objective moral order in the state.54 The tension between the independence of the temporal order and the sanctication of political life is not easily resolved through the distinction between temporal and divine matters, as epitomized in the maxim render unto Caesar.55 Catholics are, in fact, supposed to participate in political life with a deeper commitment to God than to the State and to resist and disobey laws that may go against their conscience.56 Religious freedom, when interpreted in these terms, sustains the claims of lay Catholic lawyers, particularly their expansive understanding of conscientious objection which ensures that, for example, individual doctors and nurses as well as Catholic health services cannot be forced to provide abortions or contraception or to hire gay health workers. It also means that Catholic teachers and schools cannot be forced to teach sexual education or hire gay teachers, and Catholic judges cannot be forced by law to decide against their conscience. This right to religious freedom consistently trumps other constitutional protections. Central constitutional values, such as equality, pale in comparison to religious freedom thus dened, creating many and difcult problems for mainstream liberal constitutionalism which fundamentally balances individual freedoms (including freedom of consciousness and religion) with other collective and individual goods.
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Another Vatican II document elaborates the concept that men must sanctify the temporal order. See Pope Paul VI, Apostolicam Actuositatem (Encyclical), November 18, 1965, available at http://www.vatican. va / archive / hist_councils / ii_vatican_council / documents / vat - ii_decree_19651118_apostolicam actuositatem_en.html. Render unto Caesar in Matthew 22:21; Mark 12:17; Luke 20:25. On the importance of obeying political authorities, see Romans 13:17 (there is no authority that does not come from God) and 1Peter 2: 1314 (one must be humble on account of the Lord). Acts 5:29: obey God before men. Beyond the possibility of civil disobedience, the separation of what the church considers strictly moral issues (requiring Catholics to be politically active in defense of the objective moral order) and political issues has been problematic in recent church history. In the twentieth century some national churches and individual priests took strong positions in favor of the poor and the disposed, termed the preferential option for the poor of the liberation theology. This position, however, was deemed a theological error by the Vatican since it emphasized concern over temporal matters to the detriment of concern for salvation. See Congregation for the Doctrine of the Faith, Libertatis conscientiae, March 22, 1986, available at http://www.vatican.va/roman_curia/congregations/cfaith /documents/rc_con_cfaith_doc_19860322_freedom-liberation_en.html. Cf. Congregation for the Doctrine of the Faith, Doctrinal note on some considerations regarding the participation of Catholics in Public Life, November 24, 2002, available at http://www.vatican.va/roman_curia/congregations/cfaith/documents /rc_con_cfaith_doc_20021124_politica_en.html. See also Congregation for the Doctrne of the Faith, Considerations regarding proposals to give legal recognition to unions between homosexual persons, June 3,2003,availableathttp://www.vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_ doc_20030731_homosexual-unions_en.html.

By reason alone: Catholicism, constitutions, and sex the Americas 15 By reason alone: Catholicism, constitutions, and sex inin the Americas 507

2.3. Right to life means life as essence, not as existence

Catholic constitutionalism has a particular understanding of the right to life. Human life is an essence independent from both its material form and material capabilities such as brain functions. As mentioned above, for neo-scholasticism essence is reality, more so than contingent existence. Therefore once human life is present its shape, or form, is irrelevant to its full presence: it is in essence a human person. This doctrine, when applied to human reproduction, is expressed in the phrase human life begins at conception. It means that humanity is equally present in a zygote and in a person. In the views of Catholics who defend this position, a fertilized egg is a person with full legal and constitutional rights. This denition of life lays the ground for yet another source of tension between Catholic and mainstream constitutionalism. The latter generally denes life in terms of a material body with human capabilities and functions which are the foundation of the individual autonomy and of individual choices that give meaning to the right to life and to other individual rights. Therefore, the right to life means not only that a person has the right to a biological life, but the right to enabling circumstances to make her own choices. In Catholic doctrine, however, human life implies not only the right to exist, regardless of the conditions of existence, but also the implicit duty to exist. This duty is not suspended even in the circumstances of prolonged agony resulting from disease or of the bare existence of an anencephalic fetus. At the core of this denition of life is Gods will that life exist or cease to be. This implicit reference to Gods will gives Catholic constitutionalism a transcendental dimension independent of empirical conrmation or political consensus. It is difcult to articulate this premise within the frame of mainstream constitutionalism which generally accepts as its foundation the political will and consent of adult citizens, and not a transcendental truth. Incidentally, the implicit recourse to Gods will, inscribed in the Catholic conception of life also explains why the right-to-choose argument does not thwart antiabortion convictions. In Catholic constitutionalism the right to autonomy and freedom is not dened by the harm principle but rather by aspiration to virtue. Human beings therefore cannot choose freely not to be virtuous because not being virtuous is not available in this denition of freedom. When presented in nonreligious language, this line of argument turns virtue into a constriction of freedom, and denes freedom and autonomy in exclusively moral or virtuous terms. Therefore, the choice to terminate a pregnancy cannot be constitutionally protected as an exercise of autonomy because (as explained above) the product of conception is always dened as human life.

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2.4. Legal recognition and protection can only be given to heterosexual relations
The goal of virtue inscribed in human and constitutional rights also curtails legal protection for sexuality that is not reproductive. If rights are essentially natural law, and natural law is another word for the will of God, then rights must sponsor virtue. When the matter at hand is sex, the question is: what kind of sex is virtuous? After centuries

16 508 ICON 0 10 (2012),19 ICON (2012), 1 493511

of controversy, the Catholic church concluded that only reproductive sex within marriage can be virtuous.57 Since God mandated humans to reproduce (go forth and be fruitful), reproductive sex is in fact a core element of Gods plan for humankind, and therefore a common human good.58 But other forms and expressions of sexuality, such as sex without vaginal intercourse, same-sex relations, and sex outside of marriage are not. Rights cannot protect these choices because rights cannot contradict natural law; they are not legitimate exercises of freedom. Incidentally neither is contraception (God wants us to reproduce) nor assisted reproduction (but only naturally). The Catholic understanding of sex as essentially procreative is intimately related to a particular understanding of sexual difference of profound theological importance. Men and women are essentially different beings, whose differences, determined by nature, hinge on womens singularity: womens essence is dened as loving and giving, while male essence is not explicitly dened qua male. The purpose of womens life, their dignity, lies in the realization of this essence by existing for the other.59 This must not be confused with male dominationa direct result of original sin and not of Gods will. Before the Fall, mutuality or reciprocity existed between male and female, as both man and woman existed for the other. But Gods punishment for sin was different for each sex, and in womens case it included male domination.60 As a consequence, redemption for women is deeply connected to the fulllment of the call to motherhood and family life in service and sacrice.61 Traditional gender roles are thus linked to salvation.62 This explains why the Vatican systematically argues that feminist theories and politics misunderstand natural gender roles.63 For the church sexual difference entails gendered roles which are not cultural, and instead part of the salvational narrative.64 Sexual difference also has an important role in salvational economy beyond redemption from original sin. In Catholic theology, coitus is a metaphor for the productivity of Gods love.65 Human sexual love in marriage is patterned after the hierarchical relations between God (male) and his church (female) and between Jesus (male) and the Christian mystic (female in spirit). These various pairs are described as profoundly
57

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59

60 61

62 63

64 65

Pope John Paul II, Evangelium Vitae (Encyclical), March 25, 1995, available at http://www.vatican.va/ holy_father/john_paul_ii/encyclicals/documents/hf_jp-ii_enc_25031995_evangelium-vitae_en.html. Pope Benedict XVI, Deus Caritas Est (Encyclical), December 25, 2005, available at http://www.vatican. va/holy_father/benedict_xvi/encyclicals/documents/hf_ben-xvi_enc_20051225_deus-caritas-est_en.html. Pope John Paul II, Mulieris Dignitatem (Encyclical), August 15, 1998, available at http://www.vatican. va/holy_father/john_paul_ii/apost_letters/documents/hf_jp-ii_apl_15081988_mulieris-dignitatem_en.html. See also Pope Benedict XVI, Deus Caritas Est, supra note 58. Your desire shall be for your husband and he shall rule over you (Genesis 3:16). Congregation for the Doctrine of the Faith, On the Collaboration Between Men and Women in the Church and in the World, July 31 2004, available at http://www.va/roman_curia/congregations/cfaith/documents/rc_ con_cfaith_doc_20040731_collaboration_en.html. Id. See, proposing a charter of rights of the family, Pontical Council for the Family, The Family and Human Rights, November 21, 2000, available at http://www.vatican.va/roman_curia/pontical_councils/family/ documents/rc_pc_family_doc_20001115_family-human-rights_en.html. Id. Pope Benedict XVI, Deus Caritas Est, supra note 58.

By reason alone: Catholicism, constitutions, and sex the Americas 17 By reason alone: Catholicism, constitutions, and sex inin the Americas 509

loving relationships in which love is essentially life-giving both literally and metaphorically. This overarching denition entails the rejection of homosexual intercourse as well as of extra-marital sex, contraception, assisted reproduction, and divorce, all of which are contrary to the literal productivity of love thus comprehended. It also explains why, for Catholicism, same-sex sexual desire is an inclination to sin, and can never be natural.66 This understanding of sexual difference explains the attachment to and defense of lifelong heterosexual marriage, the rejection of homosexuality, the negative views on non-procreative sexuality, and the defense of traditional gender roles. These are all issues that the Catholic church considers non-negotiable, issues which the faithful must oppose through legal and political activism.67 Once again these premises of Catholic constitutionalism are in tension with mainstream denitions of rst, equality between the sexes and second, personal autonomy as exclusively limited by the harm principle. However, they coincide with mainstream constitutionalisms historical indifference to male domination or to heteronormativity; it is only quite recently that it has been forced to deal with the contradiction between this indifference and its nominal commitment to equality and individual autonomy. Ironically, it seems its defense of these principles has red the reaction of different forms of religious activism.

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3. Conclusion: The limits of Catholic constitutionalism in constitutional democracies

The assessment of press materials, public debates, legislative outcomes, and court decisions in the U.S., Colombia, Mexico, and Brazil reveals the expansion of conservative Catholic initiatives to reframe the interpretation and application of human and constitutional rights. Catholic lawyers use similar arguments across jurisdictions and constitutional cultures, appealing to reason without reference to faith or scripture. Their appeal requires an implicit understanding of reason as an equivalent to faith in its capacity to reveal an objective moral order. The appeal to an objective moral order which limits personal autonomy is an important point of tension between Catholic and mainstream constitutionalism. Contemporary constitutionalismdespite republican aspirations to civic virtuedoes not conceive virtue as the end point in the exercise of constitutional liberty. Rather it takes liberties to be ends in themselves. A second point of tension is the metaphysical foundation of Catholic natural law, which imbues Catholic constitutionalism with the language of essence and
66

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Catholic Catechism CEC 2357-2359; Congregation for the Doctrine of the Faith, Letter on the Pastoral Care of Homosexual Persons, October 1, 1986, available at http://www.vatican.va/roman_curia/congregations /cfaith/documents/rc_con_cfaith_doc_19861001_homosexual-persons_en.html. Congregation for the Doctrine of the Faith, Considerations Regarding Proposals to Give Legal Recognition to Unions Between Homosexual Persons, supra note 56. Congregation for the Doctrine of the Faith, Note on Some Questions Regarding the Participation of Catholics in Political Life, supra note 1.

18 510 ICON 0 10 (2012),19 ICON (2012), 1 493511

substance. Even when it resorts to abstractions to voice its aspirationsjustice, democracy, life, equalitycontemporary constitutionalism does not deduce their content from a-priori essences but rather connects their meanings to concrete manifestations and experiences. In other words, contemporary constitutionalism does not generally accept arguments about rights that link the aspiration of justice to a metaphysical essence of phenomena, such as life, marriage, or religious freedom, but rather links these aspirations to concrete historical (and changing) manifestations.68 A third problem concerns the question of the power of the Catholic church, which for Catholic constitutionalism is protected by the right to freedom of conscience and religion. Its understanding of separation of church and state is based on an expanded version of religious freedom which thrives best in the U.S. constitutional tradition, where the non-establishment clause only demands the State to treat all religions equally. But in Latin American constitutionalism separation between the church and the state often limited the power of the church (not of the state) as a way to overcome the biases of confessional states that have historically prevailed in the region. The challenges posed by the role and the power of the Catholic church to contemporary constitutionalism are not exhausted by the application of the principle of state neutrality, or even by procedural rules that exclude certain appeals to religion from public discourse. These principles do not provide democratic controls to the church as a wealthy and politically powerful institutionan issue that remains to be further debated in the expansion of global constitutionalism. A fourth problem of Catholic constitutionalism is its position on gender equality and nondiscrimination on the basis of sexual orientation and identity. As we know, mainstream constitutionalisms promise of equality remains unfullled in this particular domain. But whatever the difculties in fullling the promise may be, the fact remains that equality is a foundational commitment of most contemporary constitutions. In contrast, when closely examined, Catholic constitutionalisms claims in relation to gender equality are shaped by its attachment to a theological conception of family in which women assume a traditional role. Likewise its insistence on marriage as intimately linked to the biological possibility of procreation implies the exclusion of samesex couples. These constraints to equality in the spheres of gender and sexuality are also limitations on personal autonomy which relate uncomfortably to mainstream constitutionalisms formal commitment to equality and liberty. As Catholic constitutionalism continues to spread across the Americas, the question remains whether its interpretations can nd a home in democratic courts and polities. It is a fact that Catholic reason is strongly dependent on deeply religious premises that are not shared by mainstream constitutionalism. These premises challenge the logic of the arguments by begging the question of existence of an objective moral orderone that is transcendental, independent from political consensus and historical context, and whose existence ultimately depends on the existence of the Christian God. This petitio principia is a logical fallacy that seriously undermines the lay claim
68

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In Kantian terms, while constitutionalism might be transcendent, it is certainly not transcendentaland Catholic natural law, whatever its claims to reason, is transcendental.

By reason alone: Catholicism, constitutions, and sex the Americas 19 By reason alone: Catholicism, constitutions, and sex inin the Americas 511

to reason alone, unless this claim is interpreted to mean reason in Aquinass terms, that is, a reason that necessarily leads to the knowledge of God and virtue. The question remains whether this logical fallacy affects the substantive claims made by conservative Catholics, namely the constitutionality of a complete prohibition of abortion and of same-sex marriage, and the provision of extensive rights to conscientious objection. Could strictly secular arguments lead to the same conclusions? As shown above, there is an important tension between these substantive goals and constitutional commitments to sexual and gender equality and individual liberties. In terms of abortion, for example, constitutional courts generally engage with this tension by balancing womens rights with a constitutional interest in the protection of human life. They have not, however, considered human life to be an essence, equally present in a zygote as in a fully developed human being. Neither do they give full rights to the product of conception, as Catholic doctrine would have it. More generally, secular arguments generally accept that political and historical contexts shape constitutional values and interpretations. Likewise, mainstream constitutional reason resists claims to objective moral truths and instead nds virtue in balancing opposing considerations and interests. As argued above, the current arguments advanced by the lay faithful are not as conclusive as they would have them, and ultimately depend for their force on the existence of a God whose will is knowable to human reason. If this assumption is suspended, then their arguments are not particularly convincing, neither rhetorically not substantively. In fact, one is hard pressed to nd secular arguments consistent with mainstream constitutionalism that support the total prohibition of abortion or same sex marriage, or even the existence of the kind of ample right to conscientious objection the lay faithful strive for. Having said that, it is important to note that the logical integrity of arguments will probably not be the deciding criterion in courts and legislatures, nor will rational inconsistency in relation to preexisting normative frames preempt Catholic arguments. Instead, it is a deeply political matter. An example of this is the wave of constitutional reforms in the United States and Mexico at the state level, which propose to add the phrases that marriage is between a man and a woman or that life begins at conception. The spread of this kind of actions, and the arguments that support them, is the effect of the political power of the organized lay faithful, and particularly of the power of educated and well connected leaders and their organizations, such as George, Ordez, Soberanes, or Fonteles. Their strength and numbers will, as they themselves probably anticipate, be tested in the years to comea phenomenon that calls for further study of the relation between social movements and legal activism, at least as much as of the doctrinal study of arguments and their premises.

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