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Freedom of Religion and Public Worship in Mexico: a Legal Commentary on the 1992 Federal Act on Religious Matters Jorge A

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Freedom of Religion and Public Worship in Mexico: a Legal Commentary on the 1992 Federal Act on Religious Matters Jorge A BYU Law Review Volume 1998 | Issue 2 Article 6 5-1-1998 Freedom of Religion and Public Worship in Mexico: A Legal Commentary on the 1992 Federal Act on Religious Matters Jorge A. Vargas Follow this and additional works at: https://digitalcommons.law.byu.edu/lawreview Part of the Comparative and Foreign Law Commons, Constitutional Law Commons, Human Rights Law Commons, and the Religion Law Commons Recommended Citation Jorge A. Vargas, Freedom of Religion and Public Worship in Mexico: A Legal Commentary on the 1992 Federal Act on Religious Matters, 1998 BYU L. Rev. 421 (1998). Available at: https://digitalcommons.law.byu.edu/lawreview/vol1998/iss2/6 This Article is brought to you for free and open access by the Brigham Young University Law Review at BYU Law Digital Commons. It has been accepted for inclusion in BYU Law Review by an authorized editor of BYU Law Digital Commons. For more information, please contact [email protected]. D:\ 199 8-2\ FI NAL \ VAR-F IN .WP D Ja n. 8, 2001 Fr eedom of Religion and Pu blic Worship in Mexico: A Legal Commentary on the 1992 Federal Act on Religious Matters Jorge A. Vargas* I. INTRODUCTION Mexico is a land of contrasts. Discovered and initially popu- lated by t he Spa nia rds in 1519, wh en Sp ain wa s a bou t to rea ch its peak as t he world’s major polit ica l, economic, and military power, Mexico h ad n o choice b ut to become a Ca tholic n ation . Under the laws of Cast ille in force a t that tim e, b y m anda te of King Charles V, no exploration, discovery or possess ion of an y land in the n ame of t he Spa nish Cr own wa s t o take effect any- where in the pla net wit hout the dir ect in volve men t of the Cath- olic Church.1 Placed at the same level as kings an d em per ors, a nd recog- nized as occupying a superior rank on spiritual matters, the Cat holic Chu rch prepa red its pr iest s to serve not only as bril- liant navigators and cosmographers2 but, more importantly, as inspired missionaries and devoted promoter s of the Cat holic religion on a global scale.3 The sixteenth and seventeenth cen- turies formed part of an era when explorations for wealth, * Pr ofess or of Law, Universit y of San Diego Sch ool of Law. Yale Law Sch ool, LL.M. (1969), J.S.D. candidate (1972); LL.B., summa cum laude, Mexico’s National Autonomous Universit y School of Law (UNAM), Mexico City, 1964. F orme rly a law pr ofess or at UNAM, Iberoamericana and Anáhua c Universities, Mexico City. The author verifies the accuracy of all English translations. 1. In 1492 , Kin g Ch ar les V decr eed th at an y exp edi tion au th oriz ed t o explore the New World had to includ e religious mis siona ries w ith th e pur pose of “introdu cing and propa gat ing the Ca th olic faith a mong t he n at ur als in th ose lan ds.” LUIS WECK MAN , THE MED IEVAL HERITAGE OF MEXICO 184 (Frances M. López-Morilla s tr an s., 199 2). 2. See generally ALVARO DEL PORT ILL O Y DÍEZ DE SOLANO, DESCUBRIMIENTOS Y EXPLORACIONES EN LAS COSTAS DE CALIF ORN IA (2d ed. 1980 ); HENRY R. WAGNER, SPANISH DISCOVERIES IN THE SOUTHWEST OF THE UNITED STATES IN THE 17TH CENTURY (193 7). 3. See WITNESS: WRITINGS OF BARTOLOMÉ DE LAS CASAS 66 (George Sa nder lin tr an s., 1992). 421 D:\ 199 8-2\ FI NAL \ VAR-F IN .WP D Ja n. 8, 2001 422 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998 knowledge, and souls were a common occurrence.4 With a populat ion approaching 100 million, of which eighty-nine percent are Roman Catholic, 5 Mexico is the lar gest Cat holic country in the world. However, many international observers have been unaware that official rela tion s bet ween the gover nmen t of Mexico a nd the Catholic Church over the last 140 years h ave been seeded with mu tu al suspicion, loaded wit h chronic ten sions, and marked with severe an d violent confrontat ions. Therefore, it is ironic th at in the world’s largest Ca th olic country t he r elat ions between the government and the Catholic Church have been severely strained. In general, the antagon ism between the Mexican government and t he Ca tholic Ch urch origin ated beca use of th e immense wealth and unequal political power a cquir ed by t he Church over the first three centuries of Mexico’s existence as a nation. The Church’s wealth and political power became so great that it first challenged, and lat er openly opposed, th e public policies advanced by the government, including its own constitutional nature as a republic, as establish ed by M exico’s Federal Con st it ution of 1857.6 The confrontat ion between these two forces finally culmin at ed in a m ilitary ca mpaign in which the Catholic Church and a group of conservatives, with the support of Napoleon III, embraced the establishment of a monarchy in Mexico. This regime was t o be headed by Maxim ilian of Hapsburg, instead of t he republican government then led by Presiden t Benito Ju árez. Yet the republican forces, with th e political and military support of President Abraham Lincoln, defeated the French invading forces and the 4. For a b ri ef h ist ori c re lation of thes e th ree t ypes of Span ish exp lorat ions in Mexi co, see Jorge A. Vargas, U.S . Marine Scientific Research Activities Offshore Mex ico: An Ev aluation of Mexico’s Recent R egulat ory Legal Fram ework, 24 DENV. J. OF INT’L L. & POL’Y 1, 7-18 (199 5). 5. See U.S. DEP’T OF STATE, BACKGROUND NOTES: MEXICO (199 7). 6. Article 40 of the Federal Constitution of 1857 provided: “[I]t is t he will of the Mexican people to constitute themselves into a federal, democratic, representative Repu blic composed of free and sovereign Sta tes in all that concerns their internal affairs but un ited in a F eder at ion est ablish ed accordin g to th e prin ciples of this Fundamental law .” The te xt of Ar ticl e 40 re ma ins th e sa me in t he Con st itu tion of 1917. S ee F ELIPE TEN A RAMÍREZ, LEYES FUNDAMEN TALES DE MÉXICO, 1808-1991, at 613 (199 1). D:\ 199 8-2\ FI NAL \ VAR-F IN .WP D Ja n. 8, 2001 421] RELIGION AND PUBLIC WORSH IP IN MEXICO 423 conser vat ive ar my support ed by the Ca th olic clergy. This defeat, epit omized by the t ragic ep isode of Cerro de las Campanas in wh ich Maximilian a nd his generals Miramón and Mejía were shot in Quer étaro in 1867, reestablished the Republic throughout the nation, led by t he gover nmen t of Pr esident J uá rez. It was durin g this per iod that Pr esident Juárez enacted the Reformation Acts (Leyes de Reforma).7 These legislat ive enactment s wer e designed to depr ive the Cat holic Church of its immense wealth an d politica l for ce. This wa s d one by m ea ns of a series of decrees which, inter a lia, nat ionalized all eccle siast ica l assets, placed acts per ta ining to the civil status of individua ls—civil mar ria ges in particular—under the control of public au th orities and public law, regula ted cemet eries and interments, an d bann ed all religiou s orders.8 As a direct result of th e Reformat ion Acts, the cont ent of which was reproduced in its ent iret y in Mexico’s Feder al Constitu tion of 1917, a clearly anticlerica l legal regime was formulat ed. This regime imposed severe restr ictions on th e Cath olic Church an d est ablished an extrem e sepa ra tion between church an d st at e. It is a regim e that, despite t he loud and persist ent protest s advanced by th e Vatica n since its enactment, rem ained in force until 1992. The constitutional am endmen ts ma de in 1992 to Articles 27 and 130 represent a profound change in the content and scope of th e former legal regime.9 From a substantive viewpoint, these changes are so deep in their legal ph ilosophy that observers have character ized t hem as s urpr isin g, u npr ecedented, and dramatic.10 Yet the antagonism between the Mexican government and the Roman Catholic Church has existed for so long that even today, notwithstanding the Act of Religiou s As sociation s a nd Pu blic Worship of 1992,11 which made unprecedented changes 7. See Pr esiden t C. Ben ito J ua rez, “Man ifiesto del Gobier no Const itu cional a la Nación [Public Manifest of the Constitutional Government to the N ation],” July 7, 1859, reprinted in RAMIREZ, supra note 6, at 634-37. 8. See “Leyes de Refor ma [R efor ma ti on Acts ],” (185 9-63 ) reprinted in RAMIREZ, supra note 6, at 638-67.
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