Cases involving two Brazilian Seventh-day Adventist educators—one seeking to take a placement examination on a day other than the Sabbath, or Saturday and the other who’d been penalized for observing the Sabbath—are expected to be heard by the full Federal Supreme Court on November 25.
Initial assessments of each case took place on November 19, resulting in a split decision. Supreme Court president José Antonio Dias Toffoli said requiring an exam on the Sabbath does not characterizer a violation of the right to worship. But Justice Luiz Edson Fachin said even probationary employees deserve to have their religious exercise respected and protected.
Court president Toffoli offered his report in the case of Geismario Silva dos Santo, a teacher employed in São Paulo State who was disciplined for not working on Friday evenings. Seventh-day Adventists believe the Sabbath begins at sunset on Friday and concludes at sunset on Saturday, meaning he could not work at the municipal public school during those hours.
Geismario, a resident of Pará, spent years of preparation for the position, but was unable to continue because of the recorded absences.
According to Toffoli’s report, “although protecting the freedom of belief and conscience and the principle of the free exercise of religious practices, the [Brazilian] Federal Constitution does not prescribe, at any time, the state … to promote conditions for the exercise or access to the determinations of each [faith community].”
What’s more, Toffoli argued that making such religious accommodations would disadvantage members of other religions, and those who practice no faith at all: “Admitting the creation of special conditions for the exercise of legal faculties based on religious belief would mean establishing a privilege that cannot be extended to those who have other beliefs or simply do not believe,” the court president stated.
Featured religious freedom
José Levi Mello do Amaral Júnior, Brazil’s attorney general, stressed in his comments to the court that religious freedom is the mother of all freedoms. This was also echoed in the oral argument of lawyer Maria Claudia Bucchianeri Pinheiro, Geismario’s attorney.
"Freedom of religious belief is a fundamental right that is at the root of all others," she said.
For the attorney, the Brazilian public authority has a duty to offer alternative services to those who have the belief in the Sabbath, as is the case of Seventh-day Adventists and Jews. Maria Claudia considers that this is not a favor, but an obligation to provide the means to do so.
She even cited the National High School Examination (Enem) as a good example of adaptation to the Federal Constitution in this aspect of safeguarding liberties. “In eight years, more than 450 thousand students have had their rights guaranteed without any commitment or administrative loss,” she said.
Fachin Supports Sabbathkeeper’s Rights
For Justice Luiz Edson Fachin, allowing exam alternatives to candidates for contests is not a matter of creating privilege or stipulating differentiation for the provision of public positions, but of allowing the exercise of freedom of belief without undue state interference. Fachin dissented from Toffoil’s assessment in the Geismario case.
Fachin disagreed with the vote of Minister Dias Toffoli, as he understood that admitting the setting of an alternative date for holding a public event or probationary stage due to religious conviction does not violate the right to equality. For him, the implementation of positive benefits that ensure the full experience of religious freedom is not only compatible, but recommended by the constitutional text (article 5, item VII, and article 210, paragraph 1).
The answer to the case, according to Fachin, should consider three criteria: the existence or not of an offense against a fundamental right, of consensus on the subject and, finally, of an effective risk to the rights of other people. In this case, in his view, the conflict between the right to equality and the right to freedom of belief is evident. There is also no doubt about the social consensus around the topic, he said. Fachin recalled the successful experience of managing the National High School Exam (Enem), which in 2009 allowed Sabbathkeepers to take the exam at an alternative time and, later, started to apply the tests only on Sundays .
As for the last criterion, for Fachin, there is no effective risk to the right of other people or an offense to the principle of isonomy. The principle of secularism, according to Fachin, determines the equal and respectful treatment that must be given by the State to religious minorities.
The justice also rejected the arguments that the acceptance of these rights would impose additional costs on the State, since, in his view, it is up to the State to provide material conditions to enable the full exercise of the fundamental rights of belief and worship.
Fachin issued his own assessment of the case of Margarete da Silva Mateus Furquim, a public school teacher in São Paulo, who was penalized at a municipal public school because of 90 absences registered on Friday nights (when Adventists and Jews already consider it a Saturday). He supported her appeal, saying school officials must offer alternative scheduled, so that religious freedom is guaranteed even to probationary employees.
Saturday, a matter of belief
Attorney Luigi Braga, director of the legal office of the Seventh-day Adventist Church in South America, underscored the significance of Sabbath-keeping for the 1.5 million members of the denomination in Brazil. He considered the cases historic for Adventists.
In Braga's view, keeping the Sabbath is a social fact related to a belief with thousands of years of history. And not just an issue based soley on a personal decision, but also a mandate from God as found in Exodus 20:8-11.
“The Federal Constitution is clear and crystalline when it says that no one should be deprived of their rights because of religious belief,” Braga said.
For Pastor Helio Carnassale, Religious Liberty director of the Seventh-day Adventist Church in South America, the intervening days until the November 25 hearing will be ones of even more of prayer regarding the outcome.
— with information from the Federal Supreme Tribunal, edited by Mark A. Kellner