Religião e Legislação no Brasil
A Constituição Federal de 1988 assegura que todos são iguais perante a lei, sem distinção de qualquer natureza, dispondo ainda no art. 5º, inciso VI, que “é inviolável a liberdade de consciência e de crença, sendo assegurado o livre exercício dos cultos religiosos e garantida, na forma da lei, a proteção dos locais de culto e suas liturgias”. Tal princípio engloba a liberdade de consciência, a liberdade de crença e a liberdade de culto.
O direito à liberdade de religião é inerente à condição humana e a religiosidade é um fenômeno sociológico que ganha importância jurídica, graças aos princípios constitucionais de liberdade. Com efeito, a inviolabilidade da liberdade de consciência, de crença e de culto constitui a resposta política adequada aos desafios do pluralismo religioso, encontrando ainda resposta no comando constitucional, no artigo 5º, inciso IV, ao dispor que “é livre a manifestação do pensamento, sendo vedado o anonimato”.
De igual modo a Carta Magna protege a escusa de consciência, em seu art. 5º, VIII, ao afirmar que “Ninguém será privado de direitos por motivo de crença religiosa ou de convicção filosófica ou política, salvo se as invocar para eximir-se de obrigação legal a todos imposta e recusar-se a cumprir prestação alternativa, fixada em lei.”
A liberdade religiosa, expressão que abrange as liberdades de culto e de crença, está presente também em diversas Convenções e Tratados internacionais. Assim, o Brasil ratificou, dentre outros, a Declaração Universal dos Direitos dos Homens e o Pacto de São José da Costa Rica, onde há uma ampla proteção às liberdades do homem, incluindo a religiosa.
Nos termos do art. 12. I, do Pacto de São José da Costa Rica, “Toda pessoa tem direito à liberdade de consciência e de religião. Esse direito implica a liberdade de conservar sua religião ou suas crenças, ou de mudar de religião ou de crenças, bem como a liberdade de professar e divulgar sua religião ou suas crenças, individual ou coletivamente, tanto em público como em privado.”
O art. 18 da Declaração Universal dos Direitos Humanos determina que “Todo o homem tem direito à liberdade de pensamento, consciência e religião; este direito inclui a liberdade de mudar de religião ou crença e a liberdade de manifestar essa religião ou crença, pelo ensino, pela prática, pelo culto e pela observância, isolada ou coletivamente, em público ou em particular.”
A proteção estatal à liberdade religiosa possibilita, dessa forma, tanto a mudança de religião conforme as preferências pessoais dos indivíduos, quanto a formação de novos grupos religiosos. O indivíduo passa a ter o direito legal de construir sua identidade religiosa como bem entender, premissa fundamental para a compreensão do que se chama “sincretismo religioso no Brasil”.
No Brasil, o artigo 208 do Código Penal define como crime o ato de “escarnecer de alguém publicamente, por motivo de crença ou função religiosa; impedir ou perturbar cerimônia ou prática de culto religioso; vilipendiar publicamente ato ou objeto de culto religioso.”
Ainda no âmbito criminal, a Lei nº 7.716/1989, que define os crimes resultantes de preconceito de raça ou cor, prevê punição para os crimes cometidos por motivos de religião.
O Código Civil Brasileiro, no § 1º do art. 44, incluído pela Lei n.º 10.825, de 22.12.2003, disciplina a criação de associações religiosas, nos seguintes termos: “São livres a criação, a organização, a estruturação interna e o funcionamento das organizações religiosas, sendo vedado ao poder público negar-lhes reconhecimento ou registro dos atos constitutivos e necessários ao seu funcionamento”.
A imunidade tributária, na qual o artigo 150, inciso VI, alínea “b”, refere-se, é destinada aos cultos religiosos propagados dentro dos templos, já que as igrejas, teoricamente, não são fontes produtoras de lucro, devendo suas atividades estarem ligadas à parte espiritual do ser humano.
No campo educacional, nas escolas públicas de ensino fundamental o ensino religioso é disciplina facultativa, sendo ela inserida nos horários normais escolares. O artigo 210, parágrafo 1º da nossa Carta Maior prevê que “O ensino religioso, de matrícula facultativa, constituirá disciplina dos horários normais das escolas públicas de ensino fundamental.”
A Constituição Federal, no art. 19, inciso I, estabelece veda à União, aos Estados, ao Distrito Federal e aos Municípios “estabelecer cultos religiosos ou igrejas, subvencioná-los, embaraçar-lhes o funcionamento ou manter com eles ou seus representantes relações de dependência ou aliança, ressalvada, na forma da lei, a colaboração de interesse público;”
Portanto, conclui-se que, levando-se em consideração que o Estado brasileiro é laico, a liberdade religiosa deve ser garantida e o poder público deve manter-se independente em relação aos cultos religiosos ou igrejas, protegendo e garantindo o livre exercício de todas as religiões, sempre com vistas ao alcance do interesse público.
Com efeito, o Estado também não pode obstar uma prática religiosa ou discriminar alguém por motivos religiosos, pois a laicidade do Estado, proclamada desde a instauração da República, tem o objetivo de ampliar o espaço conferido ao fenômeno religioso, sempre que forem invocadas pelos cidadãos as garantidas legais.
Por Fábio Dantas de Oliveira
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