Confessional education in secular public schools? Political theory and the ADI 4.439/2017 at the Federal Supreme Court

Abstract

If a public school is to be secular, it is often assumed, then confessional religious education should not be allowed. In this article, I show how the Brazilian Federal Supreme Court rejected such implication, hence allowing religious confessional education in public schools. The article argues that the Court abandoned core constitutional values, substituting the republican function underlying the introduction of religious education in public schooling for a function that offers assistance to families in fulfilling their task of providing moral and religious education. To offer support to this claim, I identify the four main arguments presented by the Court in favor of its decision. The first one is the Facultative Argument. It argues that non mandatory confessional religious education is sufficient for guaranteeing basic liberal-democratic values. The second one is the Constitutive Argument. It maintains that only confessional education can be genuine religious education. The third one is the ‘Religion is a basic right’ argument, which maintains that confessional religious education must be permitted in public schools because access to religion is a basic right. The fourth argument is the Historical Argument. It defends the absence of strong reasons for forsaking the status quo of state – religions cooperation and mutual official recognition.