Law and the Image of a Nation: Religious Conflict and Religious Freedom in a Brazilian Criminal Case

Law and the Image of a Nation: Religious Conflict and Religious Freedom in a Brazilian Criminal Case

Eric W. Kramer

This article examines a criminal trial in Brazil that touched on the imagined role of religion in public life. The case involved a Protestant minister accused of religious discrimination and of vilipending an image of Nossa Senhora Aparecida, the patron saint of Brazil. The prosecution argued and the court concurred that the minister’s iconoclastic verbal and physical gestures endangered the constitutional guarantee of religious freedom. Yet the defense claimed that his actions, stemming from his religious convictions, expressed this same principle of freedom. Different visions of religious freedom are at stake in the case as well as how such freedom relates to the rights and private lives of citizens. Placed in the history of church-state relations in Brazil, the case raises the problem of interpreting concepts of religious pluralism, religious freedom, and freedom of expression in Brazilian law.

On October 12, 1995, Brazilians celebrated the federal holiday desig- nated each year to honor their nation’s patron saint, Nossa Senhora Aparecida (Our Lady Aparecida). On that day Bishop SCrgio Von Helde, a

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Eric W. Kramer is a visiting assistant professor in the Department of Anthropology at the State University of New York-Buffalo. The author is grateful to the participants in the 1996-97 Sawyer Seminar, Religion, Law, and the Construction of Identities, at the University of Chicago, and to the organizers of the seminar for providing the context in which to develop this article. Frank Reynolds, Jean Comaroff, Manuela Cameiro da Cunha, and Terry Turner made valuable comments on various drafts and the ideas in the paper. The suggestions of several anonymous reviewers for Law and Social Inquiry were helpful as well. I thank Winnifred Sullivan for her perceptive comments and excellent editorial advice. Ricardo Mariano deserves special mention for his assistance in obtaining some transcripts and documents in the legal case. The gracious cooperation of the judge and of members of S ~ O Paulo’s Ministerio Ptiblico and For0 Criminal is especially appreciated. A Fulbright award to study in Brazil during 1995-96 made possible the research for this article.

0 2001 American Bar Foundation. 0897-6546/01/2601-35$01.00 35

36 LAW AND SOCIAL INQUIRY

Protestant minister representing more than 3.5 million Brazilian Pentecostal Christians, verbally and physically assaulted a plaster statue of Aparecida during a televised sermon. It was not the first Protestant public attack on an icon of Aparecida, but it was the first ever on national television. On the news that evening, the world’s largest Catholic nation witnessed the defendant’s words and gestures, words and gestures that public authorities subse- quently classified as criminal acts of religious intolerance. This episode signaled the climax of a series of public debates raging in the national media over the changing character of religion in Brazil. It concretized an imagined “holy war” over media representation, ecclesiastical legitimacy, and public recognition of a politically powerful Pentecostal church.’ The debates cen- tered around an emergent Protestantism that had been visibly expanding into public arenas in Brazil. The Von Helde attack, dubbed the “kicking of the saint” by the media, provoked outrage from all sectors of Brazilian society and led to criminal prosecution of Bishop Sergio Von Helde. Von Helde, bishop of the Universal Church of the Kingdom of God (IURD), was accused of vilipending religious symbols and of inciting religious prejudice and discrimination. In 1997, the judge in the case found Von Helde guilty on both counts.2

Tension had been building between Von Helde’s church and the national media, especially T V Globo, a major television network and media conglomerate. The pastor’s aggressive gestures toward the image, a statue he had purchased, were interpreted by many as a response to the public criticism of his church. For many Brazilians the attack featured in a much longer discussion over religious pluralism, the public legitimacy of different faiths, and the role of the state in these issues. Like the American flag-itself a contested emblem of national identity, for which many have sought state protection-N.S. Aparecida evokes strong emotions about Brazilian history and the collectivity of the nation. As patron saint, however, N.S. Aparecida stands for the identification of the Brazilian nation with Roman Catholi- cism, a position contested today on religious and constitutional grounds. Von Helde’s iconoclastic acts dramatized the contradictions built into

1. The Universal Church of the Kingdom of God (IURD, Igreja Universal do Reino de Deus) owns and operates the third-largest commercial television network in Brazil, Rede Re- cord de Televisfio. In 1998 it began a cable television network, Re& Familia (Family Network) and in early 1999 purchased 50% of the Rede Muher UHF television station. In addition to television, the church owns scores of AM and FM stations around the country. The issue of public radio and television concessions is deeply immersed in the politics of influence at the federal level of government (see Freston 1993; Brasil 1997). As of 1999, the IURD had elected 14 federal congressmen (at least 3 additional congressmen were elected with the support of the IURD). The Universal Church represents the largest denominational block of Protestant deputies in the federal congress.

2 . November 10, 1999, the Sao Paulo Tribunal de JustiCa confirmed the original decision on appeal. Von Helde was sentenced to two years in prison on charges of “practicing, inducing, or inciting” prejudice of religion through mass media. The court granted Von Helde conditional liberty because the crime was his first offense.

Law and the Image of a Nation 37

Brazilian constitutional separation of church and state. Historically, and in practice, formal separation has been blurred by legislation and symbolism identifying the nation state with the Catholic Church.

Recourse to the law in this case carries political connotations. The prosecution invoked a law against “religious discrimination” that had never before been applied in B r a ~ i l . ~ As James Holston (1991, 705) has remarked of Brazilian land law, but an observation that could apply to the legal system as a whole, law is more a strategic resource in a game of tactical advantages in Brazil than a set of ideal principles that will always predominate. The arguments of the state prosecutor, representing the public interest, sought to prove Von Helde’s guilt through a “common-sense” argument about the inherent offensiveness of his documented actions and their threat to religious freedom. Legal arguments for the defense emphasized the religious nature of Von Helde’s speech, thereby claiming protection under the constitutional guarantee of free expression (Sampaio 1989).4 The defense focused on the subjective intentions of the pastor, arguing that his actions fell within the limits of religious freedom under the law.

The principal legal issues in the case concerned the conflict between constitutional guarantees of freedom of expression and those prescribing religious freedom. Ultimately, two contrasting interpretations of religious freedom came into play. One position asserted religious freedom to be the legitimate externalization of one’s inner religious convictions in acts such as speech. The second position, which prevailed in the case, emphasized religious freedom as the right of all citizens to be free from the incursions of others upon their beliefs and convictions. Bishop Von Helde’s words and actions, even if they were informed by his religious beliefs, were held to have violated the religious liberty of others because they impinged upon religious sentiments and demonstrated “discriminatory” intent (Process0 630/95 1997). Interpreted this way, the constitutional guarantee of religious freedom is limited to actions that do not offend other religions and believers. This interpretation is analogous to the interpretation of free speech provisions as modified by additional provisions in Brazil’s 1988 constitution that offer protection to personal honor and reputation against injury. Under this interpretation, to provoke one’s neighbor with intolerant discourse about his religion is to infringe upon his right to exercise his personal religious beliefs. The court in Von Helde’s case argued that such expression

3. Law no. 7,716/89 defines “crimes resulting from prejudice of race or color”; in particular, “art. 20: To practice, induce or incite, by communications media or by any kind of publication, the discrimination or prejudice of race, color, religion, ethnicity or national origin.” “Penalty: prison from two to five years.”

4. “Manifestation of thought is free, but anonymity is forbidden” (constitution of 1988, art. 5, 0 IV). Also, “The freedom of conscience and belief is inviolable, the free exercise of religious worship being assured, and protection guaranteed, in the form of law, to the locality of worship and its liturgy” (art. 5 , 0 VI, my translation).


undermined social order. In practice, the state sometimes impinges on the constitutional guarantee of freedom of expression in its law enforcement. The courts have not always upheld rights to free expression when other interests are at stake, such as those articulated by political forces within the state. In 1997, for example, Brazilian police imprisoned members of the musical group Planet Hemp, whose songs advocate the legalization of marijuana, and charged them with inciting drug use. Despite protests against such unconstitutional actions by members of the judiciary, the boundary between free expression and illegal activity have not always been well defined by the courts as a protection against such repressive conduct by the state.

In the criminal trial of Von Helde, this issue of blurred boundaries can be seen in the prosecution’s assertion that Von Helde’s actions, as a result of their inherent offensiveness to Catholics, threatened the continued viability of religion, religious worship, and liturgical objects. Such arguments contrast with the vigorous public reaction and condemnation registered by the media, which, it could be argued, strengthened religion, rather than the reverse. Von Helde’s gesture seems to have led Roman Catholics to reaffirm their faith through public protests and reparative ritual.

Implicit assumptions about conflict and public order inform the interpretations of law and the typification of crime in the Von Helde case. Nar- ratives of Brazil’s characteristic religious and social tolerance included in the legal proceedings for the prosecution reveal an unwillingness to recognize conflicts that historically have accompanied the emergence of new religious groups, particularly at the level of the state. While it is true that religious conflicts are rare in Brazil and that today every group enjoys religious freedom, such narratives elide both the history of opposition to and persecution of Protestants and practitioners of Afro-Brazilian religions. Such opposition has led to legislation regulating and repressing certain religious expressions deemed to be socially disruptive, stirring up “sentiments of hate and love” (Maggie 1992, 22) At issue in this trial is the status of religious speech when freedom of expression and religious freedom, both fundamental rights under Brazilian constitutional law, are in conflict. At what point does legal opinion, faced with the intolerant speech and actions of aggressive religious proselytization, judge the rights of other religious believers or nonbelievers to have been violated? This conflict is particularly intense because of the ambiguous legal status and political contradictions of religious symbols in the public space of the nation-state.5 Nossa Senhora Aparecida, as patron

5. Both prior to and following Von Helde’s attack, there have been attempts to restrict the public display of religious as well as national symbols. Recently, during the celebration of Carnival 2000 in Rio de Janeiro, Cardinal-Archbishop Eugenio Sales accused a samba school of vilipending religious symbols. His denunciation resulted in police seizing a large wooden cross and an image of Our Lady of Good Hope from the allegorical float of a samba school. A court later permitted this public display. In Sao Paulo, the Catholic Church petitioned the


saint of Brazil, is both a figure of profound significance to Catholics and an emblem linking the affairs of state to the Catholic religious collectivity as a nation.

CHURCH AND STATE IN BRAZILIAN HISTORY

The history of church-state relations in Brazil is one of intimacy and influence from the early colonial period through the empire. The organiza- tionally weak Portuguese Church was subordinated to the crown and empire cntil the formal separation of church and state in 1890. In the 1824 constitution of the newly independent empire, Roman Catholicism was acknowl- edged to be the official religion of the nation (Senado Federal 1986). Yet it was clear from the beginning that the church would not follow Rome but conform instead to the emperor’s decisions and the “customs of the country” (Bruneau 1974, 22). This practice is consistent with the tradition of the Portuguese pudroado, under which the king was granted administrative control over the church, including authority to name bishops ((Hoornaert 1977; 1824 constitution, art. 102, no. 2). The 1891 constitution, in contrast, declared the separation of church and state in decidedly liberal terms, terms that eliminated any trace of religious inspiration in the law and prohibited the state6 from intervention into and sponsorship of religious affairs.

At the close of nineteenth century, while the Catholic Church wel- comed the end of state domination on the one hand, Brazilian bishops publicly protested their loss of political influence (Bruneau 1974, 32). After the 189 1 constitution, the Catholic Church actively sought to influence politics and to approximate itself to political power, particularly during the 1930s. The state’s recognition of Nossa Senhora Aparecida as the patron saint of Brazil in 1931 was a sign of achievement for the Catholic Church. It had recuperated a measure of recognition and influence in the affairs of state. Cardinal Leme, who led this effort, organized week-long rallies in the nation’s capital, Rio de Janeiro, to show the strength of the Catholic mobiliza-

court to remove a sculpture, modeled after Michelangelo’s Pied, from the allegorical car of a different samba school. Days later in Rio, police forced a member of another samba school to cover up a painted image of the Brazilian flag on her body. (Samba schools are neighborhood clubs with hundreds of members that are organized to compete in the annual celebration of carnaval. Each school on parade is judged on the quality of its song, its decoration and presen- tation, and the allegorical story it tells.) In each incident, authorities acted on the assumption that these displays violated article 208 of the Penal Code, which proscribes vilipendio (disre- spect) of religious or other symbols (Igreja tenta 2000; Polfcia apreende 2000; Maron, Esc6s- sia, and Oliveira 2000). The Catholic Church has also claimed legal rights to prevent Rio’s famous Christ the Redeemer statue from use in commercial advertisements (Druckerman 2000).

6. I include the legal system in the definition of the state. This encompasses whar O’Donnell has termed the legal state-which “penetrates and textures society, furnishing a basic element of previsibility and stability to social relations” (1998, 11).


tion. At the inauguration of the famous statue of Christ atop Corcovado in 193 1, Leme declared,

The name of God is crystallized in the soul of the Brazilian people. Either the State recognizes the God of the people, or the people will not recognize the State. (Azzi 1994, 104)

Renewed Catholic influence in politics led to changes in the 1934 constitution that permitted governmental funding of Catholic schools and religious education, a substantial measure of public recognition for the Catholic Church as the predominant agent of the religious interests of the collectivity (Bruneau 1974, 41-42). As one prominent representative of the Catho- lic leadership put it, “We succeeded finally in adjusting the judicial order to agree, in its fundamental lines, with the Brazilian social order (Alceu Amo- roso Lima, as quoted in Bruneau 1974, 42).”

The Catholic Church was a key ally during Gettilio Vargas’s Estado Novo regime (1937-45), in which Catholic religious symbolism and belief were used to legitimate authoritarian rule (Bruneau 1974, 39-40). Such overlap has not been much of a concern nor a matter of public protest in Brazil until relatively recently. Increased religious pluralism as well as increased Protestant visibility in public arenas has raised the issue in the public consciousness. Since 1891 Catholicism is no longer the official religion, but there survives an implicit state recognition of Catholicism as the religious tradition of the majority in the official holiday in honor of Nossa Se- nhora Aparecida. Religious education is required as part of the public school curriculum but remains optional for students (Ceneviva 1995). Notwith- standing the liberal constitutional principles of the freedom of religion and the separation of church and state, such principles are sometimes undermined by legislative action or by the silence of the law itself on religion.7 In practice, the courts as well as the legislature may implicitly affirm the “customary” dominance of Catholicism in the interests of the collectivity as a whole.* Catholicism’s status as the majority faith, no matter how tenuous or nominal for many individuals, has a taken-for-granted legitimacy that constitutes a de facto establishment.

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7. See Carneiro da Cunha (1985) for a discussion of how in nineteenth-century Brazil, the resistance to including customary practices of slave manumission into legislation was in- dicative of the importance of positive law’s silence on this matter as a means of reproducing personal ties of dependency between slave owners and manumitted slaves.

8. In Aparecida do Norte, for example, the site of the basilica of Nossa Senhora de Aparecida, a law enacted in 1996 by the city legislature prohibited the construction of religious temples within a six kilometer radius of the basilica. The author of the law stated that it was the means he found to prohibit the Universal Church from establishing itself in the municipality (Almeida 1996).


NOSSA SENHORA APARECIDA, EMBLEM OF NATION AND STATE

In 17 17, the figure of Nossa Senhora Aparecida miraculously appeared in the nets of three fishermen in the Paraiba River near where the town and major Catholic pilgrimage center in Sao Paulo state, Aparecida do Norte, stands today. Pilgrimages to N.S. Aparecida began in 1745 after a period of consolidation that spread the saint’s renown for interceding on behalf of the prosperity of fishermen and the local community (Boff 1995, 21; Cultoh Aparecida 1995). In the nineteenth and twentieth centuries, nationalism and moments of political transition stimulated the growth of devotion to Nossa Senhora da Conceiqao Aparecida or Nossa Senhora Aparecida. The growth coincided with Romanization of the Church. Following Vatican I (1870), Pope Pius IX led an effort to create a homogeneous Roman Catholic Church around the world, substituting traditional devotional practices with standardized and church-controlled forms. Religious feasts involving the saints of a local community became increasingly marginalized. They were replaced by devotion to saints and pilgrimages that united masses of people and large geographic regions (Oliveira 1994). In Brazil at this time, the Catholic Church began to promote devotion to Virgin Aparecida as one “weapon” against the rising tide of anticlerical republicanism (Boff 1995, 28).

The history of organized devotion to Nossa Senhora Aparecida indexes the changing and contested relations between church and state in Brazil. At one time a saint identified with the local parish of GuaratinguetB, N.S. Aparecida was gradually transformed into a modern emblem of nation and state. Religious symbols were sewn into the emerging fabric of national identity since Brazil’s independence in 1822 when Sao Pedro de Alcsntara was recognized as the official patron saint of Bra~il .~ The naming of patron saints as protectors of kingdom and colonies has a long history. Upon the restoration of the kingdom of Portugal in 1640, for example, King Jog0 IV declared Nossa Senhora da Conceiqao its patron saint. The specific mean- ings and political role of patron saints, however, changes with the develop- ment of modern states.

Only in the twentieth century did N.S. Aparecida gain national promi- nence as a focus of popular religious devotion (Hauck 1989, 77), a develop- ment that was manipulated by the state in the inauguration of modem

9. Some scholars have claimed that Dom Pedro I, emperor and head of the Brazilian Catholic Church, pronounced Nossa Senhora da Conceigio Aparecida Brazil’s patron saint after having declared independence in 1822 (Fernandes 1989; Culto 5 Aparecida 1995). Boff has disputed this claim for a lack of official documentation, asserting instead that the official patron saint of the new empire was Siio Pedro de Alcgntara. Boff noted the existence of tacit signs of support for the tradition set by royalty in 1818 consecrating the Virgin of the Concep- tion patron of a special military corps, the Order of the Conception (1995, 26).


political projects. Pope Pius XI declared N.S. Aparecida patron saint of Bra- zil in 1930, heralding the institutional maturity and strength of Catholic Church, now separate from its former dependence on the state. Following the revolutionary arrival of Getdlio Vargas’s government into power in 1930, the Catholic Church organized in 1931 a week-long celebration of Nossa Senhora Aparecida in Rio de Janeiro, the nation’s capital, crowning her, “Queen and Patron saint of Brazil” (Boff 1995, 22; Bruneau 1974, 40). This move was intended to demonstrate that the Catholic Church could not be overlooked as a major force of support for the new regime (N.S. Aparecida, Padroeira do Brasil 1980). Likewise, in 1964, at the start of the authoritarian military regime of Castello Branco, N.S. Aparecida gained an honorary post as “Generalissima” of the Brazilian Armed Forces (A Mae de Deus 1995).

Despite the political overtones of the history of this patron saint, one should not overlook the profound identification of poor Brazilians with the Virgin Aparecida. There exists a strong affective relation between this saint and her devotees, especially pilgrims who are fulfilling the vows they made in exchange for miraculous intervention. One scholar described this emo- tion-laden relationship in the following manner:

The Virgin Aparecida represents the Mother protector, the Holy Mother, who recognizes the human needs and knows how to share the fortunes of her poor children . . . [She] constitutes a social icon, in the sense that she becomes the symbolic expression of the people itself, the mirror of its sufferings and longings. (Boff 1995, 31, 34)

Aparecida’s dual role as modern nationalist political symbol and as popular devotional image with roots in Catholic history may explain the strength of the reaction against Von Helde’s actions.

Of black complexion, understood to be the result of caked on mud from the bottom of the Paraiba River, Nossa Senhora Aparecida is identified in the broadest sense with the Brazilian nation and its people (Boff 1995, 38). Racial identity was not traditionally associated with the saint’s coloring. After the Von Helde incident, however, some commentators, including the noted liberation theologian Leonard0 Boff, affirmed that Nossa Senhora Aparecida is popularly recognized as black in terms of race (Boff VC Risco de Catdicos 1995). Dom Alohio Lorscheider, archbishop of Aparecida do Norte, has also spoken about N.S. Aparecida’s historical ap- pearance as a kind of spiritual recognition of blacks’ struggle against slavery (Mott 1995). And Paulo Paim, a black congressman, went so far as to file a suit against Bishop S6rgio Von Helde for racial discrimination. Despite these suggestions by intellectuals and other elites, there is no historical record of devotion of blacks in Brazil to N.S. Aparecida (Mott 1995). Other saints, such as Nossa Senhora do Rosario (dos Pretos) and Sao Benedito,


were objects of Christian devotion by African slaves and are associated with black communities of faith. Popular Catholic devotion to the slave Anas- thcia, a twentieth-century phenomenon, presents greater evidence than that of N.S. Aparecida of an explicit link between race and religious worship (Burdick 1998).

The institution of the annual national holiday on October 12 in hom- age to Nossa Senhora Aparecida is recent. The holiday was officially decreed by President General Joao Batista Figueiredo on June 30, 1980, during the last years of military rule. The establishment of the national holiday coincided with the 12-day visit of Pope John Paul I1 to Brazil in 1980-the first papal visit to Brazil-when he inaugurated the new basilica to N.S. Aparecida, 40 years in construction. The holiday initially provoked little or no organized public opposition. But as early as 1982, Pentecostals took offense at the holiday as state-sanctioned idolatry, protesting it as a violation of the constitutional principle of religious freedom. Pentecostal leaders, during a large stadium rally in Sao Paulo attended by high-ranking government officials and candidates for elected office, asserted that the state should not establish or support any form of religion (Veja 1982).

THE INCIDENT

The morning of October 12, 1995, a purchased plaster statue of Nossa Senhora Aparecida, Brazil’s patron saint, was brought into the television studio at Rede Record,lo where the Universal Church‘s evangelistic program, The Awakening of Faith, would be broadcast live starting at 6 A.M. Studio technicians, when later questioned by police about the image’s presence on the studio stage, thought it strange to see this object of Roman Catholic devotion placed in front of the cameras but asked no questions. During his police interrogation, Bishop Sergio Von Helde explained that he intended to take the national holiday in honor of N.S. Aparecida as an occasion to juxtapose biblical teachings on idolatry with “adoration” of an image. For him, such devotion had nothing to do with the true God (Process0 630/95 1995, 111-12). He claimed not to have premeditated the gestures, words, and physical contact he directed at the statue but only to have intended to show its materiality as plaster.

The Awakening of Faith program began with a series of interviews with members of the Universal Church-professed ex-nuns, ex-priests, and ex- members of Afro-Brazilian religions-who recounted their experiences in the Catholic Church and in religions of possession. They related their past problems, humiliations, and misery and asserted that, far from improving

10. The Universal Church owns and controls the Rede Record Television network, cur- rently the third largest in Brazil.


their situation, those religious organizations had worsened their lives. One of the ex-nuns claimed knowledge of sexual relations between the nuns and the priests in the convent. In the sermon that followed, Von Helde incorporated these stories into a diatribe against the Catholic Church. He then proceeded to verbally and physically attack an image of Nossa Senhora Aparecida in statements that formed the state’s evidential basis for charging him with “practicing, inducing and inciting religious prejudice and discrimination” (art. 20 of law no. 7,716/89).

. . .[S]o this holiday is a religious lie. This holiday of the Catholic Church, of Aparecida , . . all that is a lie, my friend, because the Bible speaks, the Bible condemns it, God Himself condemns it. So, when you adore an image, you’re committing the biggest sin before God. . . .

You saw the testimony of ex-nuns, of ex-seminary students, who never learned the Bible. . . . And you saw the falsity, the lesbianism, the prostitution, nun with nun, priest with priest, a tremendous falsity inside there, and that they’re hiding behind that clothing, which seems to be holy, and you were fooled, stupid, you even kiss their hands. Do you know where [the priest] put his hand?

The Bible is the truth, not me, not the priest, not the bishop, not the Pope, not the Catholic Church, not the Universal Church. Read the Bible, because our country suffers because it never reads the Bible. Our country suffers because the religion which always predominated in our country was the Catholic religion. The mass in the morning and at night, Macumba.l’ Yes or no? You got tired of doing that, you’re tired of doing that. During the day you go to mass to light a candle this big or then you walk on your knees, or pray the rosary, or you go to stand there looking at that piece of wood. You’ll stay there looking at that piece of wood and it won’t be able to do anything for you. At night, you go drink that dgua de ubS,’* you’re there smoking that cigar slob- bered by a father-of-the-saints, many times a homosexual father-of- the-saints,13 many times a lesbian mother-of-the-saints. (Processo 630/ 95 1995, 7-8)

Von Helde’s attack on the image of Nossa Senhora Aparecida began with a biblical passage that narrated a plot against the apostle Paul in Ephesus by a manufacturer of pagan icons (Acts 19:23). Paul’s preaching against idolatry threatened this commerce in images. Von Helde took this to be analogous

11. Mucumba is a term for a Afro-Brazilian religion of spirit possession located historically in Rio de Janeiro, but it is also a somewhat derogatory slang expression for Afro-Brazilian religions.

12. During a period of ritual isolation during initiation into Candombk, an Afro-Brazil- ian religion, neophytes drink from and bathe with cigua de ab6, a putrefied mixture of water, sacred leaves, and blood from animal sacrifice that confers supernatural power, or axe‘, on the person.

13. Father- and mother-of-saints are priests and priestesses in Afro-Brazilian religious hierarchies. Male homosexuality is common among men who are possessed by the orixcis in Candomblk, but less so in Umbanda (see Birman 1995; Fry 1982).

Law and the Image of a Nation

to the present, in that his church represented a threat to the trade in religious images and to the Catholic Church. In his opinion, the Catholic Church was for this reason conspiring to destroy the Universal Church in the media.

Almost immediately after he introduced the biblical passage and its analogy to the present, Von Helde proceeded in his own way to demonstrate the materiality and profane quality of the statue. His light kicks and taps to the image of Nossa Senhora Aparecida pragmatically sought to show the saint’s inefficacy as a sacred persona. New converts to the IURD are invited to bring to church images, rosaries, and objects from their past in order to renounce and destroy them physically through the mediation of the church. Von Helde’s words and actions, especially those selected by the media, were his public attempt to break apart religious and symbolic associations connected with this object of devotion. The poetics of Von Helde’s demonstration is marked by repetition and the staccato of his verbal and physical reference to the statue.

45

We’re showing people that this here, 6’14

look at that, look here, 6, 6, 6 this here doesn’t work at all, 6, right here, 6, this here isn’t a saint at all, this here isn’t God at all. (Process0 630/95 1995, 147)

The reaction to Von Helde’s televised attack on the statue was so great that the impression of injury and physical violence grew in proportion to its nar- ration in the press. The actual live broadcast did not immediately provoke the scandal. It was only after edited clips of the insult were broadcast on the nightly news on the Globo TV network that Von Helde’s actions became e~entfu1.I~ To those abroad who read only about his “kicks” and their reper- cussions, the force and violence of the attack may have appeared extreme. A recent academic study of Pentecostalism in Brazil, for example, errone- ously described Von Helde as having attacked N.S. Aparecida with an ax (Lehmann 1996, 169).

14. With each deictic reference, he placed his hand on the statue for balance and tapped

15. The news journal, Jomal Nacional, regularly captures over 70% of the prime-time the icon with the side of his shoe.

national television audience.


Another moment of Von Helde’s monologue, widely quoted in the press, is one that brought up for some the question of racial in addition to religious discrimination, since Nossa Senhora Aparecida’s complexion is colored black.

Is it possible, my friend, is it possible that God, the Creator of the universe, can be compared to a doll like this-so ugly, so horrible, so disgraceful? Is it possible for God to be compared to this, my friend? (Processo 630/95 1995, 149)

The less sensational remainder of Von Helde’s discourse, not all of which made news, is exceptional for its belligerence.

I t is interesting that Von Helde’s arguments and rhetoric against the Catholic Church made the same accusation that is often made against the IURD: the illegitimate commerce of religion and its commodification. The Universal Church often deals with such public criticism by directing it back upon its enemies, including the Catholic Church and the media. Von Helde argued that money spent on an image is wasted; the efforts and sacrifice of the Catholic believer are misplaced and bring disgrace because they are contrary to biblical truth. For Von Helde, saints do not work miracles, only God does. No pragmatic results follow from the believer’s sacrifice, therefore the exchange is false.

At another moment, Von Helde sarcastically mocked one supposed popular Catholic attitude toward the saint as a personified material representation of God. He addressed his viewers and the saint as interlocutors.

My friends, we could make a prayer, right?, we could pray now to this saint. 6, see if it works, look at that, it doesn’t work; to have it walk I have to bring it this way, “come here, my God,” (pulling the statue). This here is my God, “stay here a little,” no, this side is really ugly, isn’t it, “look at me, look at me a little,” it doesn’t look; poor thing, isn’t it. Poor little saint, it can’t do anything. (Processo 630195 1995, 151)

Von Helde seems to have assumed his actions and words would stir up and provoke his viewers’ sentiments, but he maintained that his purpose was to reach the unconverted. “You’re mad at me, but it’s not worth getting mad at me. The devil is making you mad at me because I am trying to open your eyes.’’

PRELUDE TO A KICK

Many Brazilian observers interpreted Von Helde’s attack on N.S. Aparecida as a retaliation for public criticism of his church. Weeks of


negative news coverage of the IURD by the Globo network and undercover exposes of fund-raising practices in the church had been followed by the broadcast of a short telenovela by TV Globo titled “Decadence” (De- cad&ncia). Telenovelas have become interactive arenas between producers and spectators, blurring the boundaries between public and private, particularly with regard to social and political issues facing the nation (Hamburger 1999). Telenovelas comment on contemporary issues and events, but more important, their representations sometimes instigate political and social action. “Decadence” focused on a corrupt pastor’s rise to power in the 1980s, a thinly veiled portrait of the IURD’s lcader, Bishop Edir Macedo. Not only IURD members, but also many evangelical Christians were deeply offended by the series’ shallow caricatures of Protestantism. Protestants were incensed by a scene in which the camera pans away from the sexual passion of the future pastor to his open Bible with a bra draped across its pages. In subse- quent sex scenes, the Bible reappeared as a symbol. For many Protestants in Brazil, the Bible is a potent symbol both as a sacred text and an icon of identity. The parallelism between the symbolic value of N.S. Aparecida for Catholics and the Bible for Protestants is perhaps one reason Von Helde chose to bring an image of the saint into the television studio.

In the days preceding the broadcast of “Decadence,” signs appeared that the Universal Church’s outrage was finding an outlet in attacks against the Catholic Church and, in particular, against the figure of the Virgin Aparecida and the National Holiday held in her honor. On late-night television on August 29, the IURD’s political and social affairs show, 25c Hora, held a debate on the history of Christianity between two Catholic priests, two IURD pastors, and three other pastors, one Baptist, one Presbyterian, and one from the Assemblies of God. According to one report, the topics of the Virgin Mary and Nossa Senhora Aparecida quickly dominated discussion and became the object of heated arguments that separated the priests from the other guests. A newspaper columnist described the program as a battle without winners:

Fervent debate, harsh words. And the moderator, immoderate, took charge and said dramatically, that for him, “Mary is dead.” The Virgin, apparently more than previous divisions between Catholics and Protestants, such as money, is what divides sides in the holy war. Nossa Senhora Aparecida, the patron saint, is the dividing line. (Debate Cris- t8o 1995)

The IURD’s campaign against the national holiday for Brazil’s patron saint extended beyond television into politics. The federal congressman and IURD pastor, Paulo DeVelasco, introduced in early October 1995 a bill to revoke the federal law that created the national holiday for Nossa Senhora


Aparecida because it violated the constitutional separation of church and state.

Von Helde’s introduction of an image into the television studio changed the debate over N.S. Aparecida fundamentally. For Brazilian Catholics the image of Aparecida commands respect as a symbol largely associated with the values of Marian devotion. Aparecida is thought to be compassionate and a mother to those in need: the sick, the dispossessed, and the oppressed. Judging from the reaction of Brazilian society, the very materiality of the statue of N.S. Aparecida in the medium of television altered the status of words and images from being that of opinion to one of concretized intolerance. In comparison to the original image of N.S. Aparecida, which is about 14 inches high, the replica was many times larger, perhaps 42 inches, amplifying its physical presence in front the pastor. His physical contact with the image alone conveyed more information than his words. The repeated rebroadcasts of the incident through TV Globo and other television networks did much to amplify the effect of this material upon the nation as well. The Universal Church‘s weekly newspaper, Folha Universal, with circulation around 800,000, seems to lack the power to stir up passions the way television did, despite having printed much more intolerant and denigrating material about other faiths, especially Afro-Brazilian religions.

IMAGES OF THE NATION: RELIGIOUS TOLERANCE AND LEGITIMACY

When he hit and kicked the image, offending it with insulting adjectives, the Pastor in question offended the Mothertand (Phis), the struggle against slavery, the saga of the Afro-Brazilian nation, the reverence of humility, the respect for poverty, the origin of the colors of the flag, the Brazilian cultural patrimony, and the amed forces. (Processo 630/95 1995, 54; emphasis in original)16

The rhetoric of condemnation and calls for the defense of N.S. Aparecida in the case against Von Helde show concern for a set of transcen- dent values connected with the nation’s identity as a whole. History, tradition, patriotism, cultural heritage, and other associations figure into the representation of the Virgin Aparecida in documents before the court. In the decision against Von Helde, Judge Ruy Cavalheiro gave special rhetorical emphasis to the timing of the aggression against N.S. Aparecida. The defense argued that Von Helde’s reference to the Virgin Aparecida on the

16. Legal Petition (Representqao) by the law firm of Pinheiro Pedro in the name of three victims, directed to chief precinct officer of the twenty-seventh district, denouncing S6rgio Von Helde and calling for a police investigation (Inquirito Policial) of his actions.


saint’s holiday was obvious and natural. Judge Cavalheiro, however, used this fact as a sign of Von Helde’s clear premeditated intention to outrage the nation.

One can never forget that this act occurred on the day nationally consecrated to Nossa Senhora Aparecida, the federal holiday to the holy patron saint of Brazil. (Processo 630/95 1995, 688)

Repeating the prosecution’s argument, the judge referred to a symbol of the religious majority and of the nation, simply assuming the unproblematic ap- propriateness of the state’s protection of it from attacks of minority citizens. Von Helde’s act, although explicitly aimed at the Catholic Church and at what he thought idolatrous, called this conflation of values into question, as much as the widespread Protestant opposition against the federally decreed holiday in honor of N.S. Aparecida. The guarantee of religious pluralism by a constitutional framework such as Brazil’s creates an unintended effect. Re- ligious tension increases with the ascension of groups whose very identity and growth are founded on sectarian and belligerent opposition to established churches. Such tension, many Brazilians conclude, is a betrayal of an imagined traditional tolerance and accommodation of difference.

The prosecution and other advocates seeking the pastor’s indictment repeatedly referred to an essential Brazilian tolerance. A congressman’s let- ter to the attorney general of the republic, quoted in the prosecution’s final allegations in the case, denounced Von Helde in the following terms:

The nation, of predominantly Catholic faith, was belittled by a gesture incompatible with the pacific and respectful character of the Brazilian people. . . . Brazil is exalted for its peaceful spirit of its people and for the fraternal coexistence between people of completely different origin, color and belief, such that the element of discord, injected into the vein of citizens by the gesture of pastor Helder, is one of the most condemnable aspects of that disastrous behavior.’7

While it is true that religious conflict in Brazil has not had the visibility or virulence of that in other Latin American countries, this is not to say that tolerance is a positive principle of a Brazilian ethos. Reverend Caio Fabio, president of the Brazilian Evangelical Association, explained Brazilian religious tolerance in the following way: “the Brazilian people are acomodado” (i.e., resigned to a situation without being totally in agreement).

~

17. Petition (Representqiio) of Congressman Paulo Renato Palm (M-RG) to Dr Ger- aldo Brindeiro, attorney general of Brazil (Procurador-Geral du Reptiblzca), Oct 17, 1995 An- nexed to Processo 630195 in Protocolo no. 37,723195, Ministho Pliblico do Estado de Sao Paulo, fols. 80-83.


Brazil’s history of legislation and the application of penal codes with respect to religion shows that, far from tolerating different religious practices, the state has concerned itself with categorizing and regulating religion according to its effects on public order. The 1890 penal code, established after the formal separation of church and state, contains articles against “spiritism,” “magic,” and “folk-healing,” distinguishing legitimate spiritual work from that aiming to “stimulate sentiments of love and hate, inculcate the cure of curable or incurable illness” in order to ‘(fascinate and subjugate public credulity” (arts. 156, 157, 158 from 1890 Penal Code, as quoted in Maggie 1992, 22). Three positions stand out in the jurisprudential debates over these codes. One position considered any magical or curative practice as a danger to public health. Another considered laws prohibiting them to be an unconstitutional violation of religious freedom. However, the position that prevailed in the penal code of 1940 and the constitutional revision of 1946 was ironically that which distinguished whether the use of religious principles by the practitioner was for good or for evil, a belief internal to Spiritist religions themselves (Maggie 1992, 88-89).

Historically, the Brazilian courts and judiciary have had no hesitation about judging the legitimacy of alleged religious practices, despite the constitutional freedom of religion and belief. The respected Brazilian jurist, Nelson Hungria, commenting on Brazil’s penal code, considered folk-healing practices of Afro-Brazilian and other religions not to be protected as “devotional acts” under law (Hungria 1981, 61-64). Afro-Brazilian religions are no longer the object of police repression, but the same laws that courts used to adjudicate accusations of sorcery remain in the penal code. More than once, at the peak of its public notoriety in the late 1980s and early 90s, the leadership of the Universal Church has been forced to defend itself in the criminal courts against charges of charlatanism and folk healing.

The language used by the prosecution shows a concern with legitimacy of religious office and authority. Quotation marks around the religious title of bishop have appeared in newspaper reporting on the Universal Church, indicating “auto-denominated” titles of authority in contrast to the “au- thentic” titles of established, respectable sacramental office.18 In the legal petitions to denounce SCrgio Von Helde, the title of bishop is placed within quotation marks or qualified with adjectives such as “supposed” or “false.” The prosecution omitted Von Helde’s title in referring to him as a defendant, but placed bishop in quotation marks when indicating his office in the Universal Church. When I asked one of the prosecutors why bishop should

18. The IURD’s name, its centralized three-tiered structure of authority (voluntary “workers,” pastors, bishops) with Bishop Macedo as a kind of pope or bishopprimate-even its umbrella political organization, the CNPB, National Council of Pastors of Brazil (an obvious contrast co the politically active CNBB, the National Council of Bishops of Brazil, in the Catholic Church)-appear calculated to compete against and confront the authenticity of the “other” universal church.


be in quotation marks, she replied, “the Catholic Church created the title bishop. If other titles exist for this same office, they were copied from the Catholic Church. That’s why we placed bishop in quotation marks.” Never- theless, the prosecution’s final statements to the judge, when citing an Anglican Church elder’s condemnation of Von Helde’s actions, did not put his title of bishop-emeritus in quotation marks. Evidently, only the legitimacy of particular churches is subject to the rhetorical strategy of placing titles in quotations, and this public legitimacy is in relation to an order of value in which the Catholic Church is at the apex of authenticity.

STRATEGIES, FRAMES OF INTERPRETATION, AND QUESTIONS OF LAW

SCrgio Von Helde was charged with violating article 208 of the Brazil- ian Penal Code.19 The charges were limited to vilipending religious objects and with having violated article 20 of law number 7,716/89, which prohib- its, among other things, inciting religious discrimination and prejudice through broadcast and other media. During the police investigation, Von Helde was charged only with vilipending religious objects, since the re- broadcast television images that provoked national outrage featured only his gestures and invective toward the image of N.S. Aparecida. When the case was promoted to a public trial and the state prosecutors appointed, they examined the entirety of Von Helde’s broadcast on TV Record and then added the charges of religious discrimination. In an interview, one of the state’s prosecutors seemed to imply that the choice to include the charge of religious discrimination was motivated by the penalty attached, at least two years in prison.20 On the other hand, Von Helde’s conviction as a first-time offender (re‘u p’mdrio) under penal law means that he does not have to serve time. It could be argued that Von Helde’s status as a first-time offender gave the court, especially at the appellate level, greater latitude to make the decision send a strong message about the state’s intolerance for behavior that disrupts an imagined order of religious sentiments.

19. Article 208 of the Penal Code is catalogued under the section titled, “Crimes against religious sentiment and against the respect for the dead.” It reads: “To insult [or belittle] someone publicly for reasons of [this person’s] religious belief or function; to impede or disturb religious ceremony or the practice of worship; to publicly vilipend [uilipendiar] a religious act or object of worship.” The penalty is detention of one month to one year or a fine.

20. The prosecution is not the first on record to recommend the charge based on art. 20 of law no. 7,716/89. Distinguishing between the applicability of art. 208 of the Penal Code and law no. 7,716/89, the state’s prosecutor said: “this here [referring to art. 2081 has a very small penalty, it doesn’t put anyone in prison. I t was even applied in the case of a young man who protested in public, vilipending Nossa Senhora, and he was found guilty by the Tribunal.”


Von Helde’s case was one of the first to be tried under law number 7,716/89.21 Judge Cavalheiro based his decision on a fundamental right to religious freedom. To discriminate against someone on the basis of religious identity, from the judge’s perspective, was to infringe upon his right freely to choose faith. Von Helde’s remarks about moral turpitude inside the institutional Catholic Church and his insinuations about the sexuality of priests, nuns, and leaders of Afro-Brazilian religions were found to discriminate against entire communities of faith. Von Helde’s expressions, in the opinion of the judge, “induced people to believe that all the participants of those religions had that type of behavior” (Maggie 1992, 687). No evidence of the effects of such inducement upon listeners was presented in the case. People who wrote ietters to the court expressing outrage and injury protested what they witnessed on edited television rebroadcasts, Von Helde’s aggression against the statue of Aparecida.

RELIGIOUS FREEDOM AND FREEDOM OF EXPRESSION

The Brazilian judiciary, historically, has not vigorously defended noneconomic civil rights, such as freedom of expression, from the incursions of state power (Caldeira and Holston 1998, 275). “What has been consist- ently missing from Brazil’s judicial tradition,” write Caldeira and Holston, “is the sense that courts protect the rights of citizenship and the principle of legality, even though these norms have been written into every democratic constitution” (1998, 275-76). Since at least the founding of the republic in 1891, the Brazilian constitutional and legal system relate to each other in complex ways, drawing on a mixed heritage of European civil law tradition and the model of a liberal American constitutional system. Constitutional principles such as freedom of expression are apparently contradicted in practice by the application of juridical norms and criminal procedures (Kant de Lima 1995). The recent case of the Brazilian musical group Planet Hemp shows that law enforcement, in the absence of greater action by the courts to protect civil liberties, blurs the distinction between opinion and illegal activity (i.e., “incitation”). Planet Hemp, whose music extols the virtues of marijuana, has been harassed by police on numerous occasions and seen its performances cancelled and its CDs confiscated by judicial order ( Pinheiro and Masson 1997). The latest incident resulted in a four-day imprisonment of the group under antidrug legislation (formulated during the military

21. A prior case involved a defendant who distributed publications with racist, an- tisemitic content as well as historical-revisionist literature on the Holocaust. The judgment condemning this individual to two years in prison was overturned on appeal (on free speech grounds) and later reversed by a higher court of appeals (Brenner de Moraes 1995; Szklarow- sky 1997).


dictatorship) on charges of instigating drug use. Such repressive measures are notable since recent changes in law have in fact lessened the penalties attached to drug possession. One could argue that Planet Hemp’s vocal support of marijuana and Von Helde’s ideologically informed speech are analogous in that they represent cases where the limits of expressive freedom become problematic for Brazilian society and the state.

The prosecution placed much rhetorical emphasis on Von Helde’s aggressive statements against the Catholic Church as evidence of his intent to incite illegal acts. In its final statement to the judge, the prosecution presented a selection of Von Helde’s inflammatory discourse that prefaced his attack on the image of Aparecida. The extended quotation ended with the single sentence paragraph, “The expressions used speak for themselves.’’ The prosecution argued that Von Helde intended by his speech to incite religious discrimination:

53

There is no way to deny that, in saying that Brazil finds itself in a difficult situation because the predominant religion is Catholicism; that the Vatican doesn’t teach the truth; that no priest teaches the Bible . . . that Aparecida do Norte is in fact a “business,” a “shopping mall of faith” . . . that priests and nuns lead a promiscuous life . . . the defendant intended to create, disseminate, and inspire prejudicial ideas in the listening audience against that religion and other sects, attempting to discredit and delegitimate them with the sole goal of enlarging the flock of the Universal Church of the Kingdom of God, taken as the holder of absolute and supreme truth. (Ministerio Pfiblico de Estado de Sao Paulo 1996, 10-11; emphasis in original)

No one can deny that Von Helde’s intent was to publicly discredit the Catholic Church and to proselytize. Arguments by the prosecution, as well as the judge, however, interpreted Von Helde’s intent to be an infringement upon the constitutional right of religious freedom. The judge, in his decision, defined religious freedom as the right to choose one’s faith or to choose none at all (Process0 630/95 1997). He cited at length the work of J6natas Eduardo Mendes Machado, a Portuguese jurist. Mendes Machado defined a set of “devotional observances” that established the basis for the juridical and constitutional protection of religious freedom.

These encompass, in a general sense, individual or collective observances, religiously motivated, more or less ritualized, and not directed solely at communicating religious content to others. This is the case, for example, of prayers, of certain forms of meditation and fasting, of reading and study of sacred texts, of religious services in temples, of homilies, of sermons, and of processions, etc. . . . Constitutional protection falls, in an immediate sense, over the potential for individuals and collectivities to participate, or not, in such acts of devotion


without any sort of state pressure. . . . In other words, the state must abstain from interfering in devotion (o culto), at the same time that it prevents, represses, and sanctions the disturbance of devotion by others. (Mendes Machado 1996, 229-31)

Maintaining religious freedom, from the perspective of Mendes Machado, presumes in practice a closer linkage of public (i.e., the state) and private spheres than in Anglo-American legal traditions.

The judge in Von Helde’s case interpreted such a concept of religious freedom to mean that individuals have the right to express themselves and their religious values, but must consider the effects of this upon others (Processo 630/95 1995, 682). Interestingly, the judge extended the protection of religious liberty to include “religious conscience” (confissiio religiosa) (Processo 630/95 1997, 681). It is criminal, from this perspective, to disturb the religious convictions of others, not only the religious observances noted above. Von Helde was held to have violated the rights of other citizens by offending their deeply held religious sentiments. In this light, Von Helde’s discourse on the moral turpitude of the Catholic Church was found to in- tend to erect a “discriminatory barrier” against those identified with a particular faith, based on his allusions to personal and moral behavior said to contaminate religious leadership. One might argue that the state, by spon- soring a federal holiday in honor of Aparecida, would potentially be offending the religious sentiments of many Protestant citizens who hold such observances to be idolatrous.

Shortly after the attack on Aparecida, newspaper editorials from the nation’s capital, Brasilia, decried Von Helde’s actions as a violation of the constitutional guarantee of religious liberty. In contrast, the liberal newspaper, A F o l k de Siio Puub, affirmed Von Helde’s constitutional right to express himself but lamented the uncivil means he used (Almas Mortas 1995). Throughout the case, those in favor of prosecuting Von Helde emphasized that his expression violated the constitutional guarantee of religious freedom. Article 208 of the penal code was interpreted as the direct expression in criminal law of the constitutional principle upholding religious freedom. So in order to defend the freedom of belief and religion, certain types of speech are intolerable under law.

Such issues have been discussed in prior cases against the Universal Church involving freedom of expression and its relation to religious freedom. In one case involving Afro-Brazilian religions, Bishop Edir Macedo, the leader of the IURD, was accused of inciting uilip&ndio and other criminal acts by his writings, which cited the need to destroy images and religious


objects associated with Umbanda and Candomble. The 1993 decision found this charge groundless:

These writings make reference-it is not unrecognized-to other practices or religious devotion. Nevertheless, this (expression) cannot be urgently raised to the status of a crime. I t needs to be defended within the limits of a reasonable exercise of religious liberty. (Freitas Net0 1994, 286)

Judge Freitas Net0 held that Edir Macedo’s writings against Afro-Brazilian religions were within his right to express his religious beliefs: “the classifica- tion of [Macedo’s] activity as criminal would be the same as denying the full existence of religious freedom” (1994, 287). In Von Helde’s case, however, the court took his words, gestures, and the physicality of his sermon to be more than religious expression.

THE STATUS OF RELIGIOUS OBJECTS

The videotaped evidence of Von Helde’s gestures and words directed at the image of the Virgin Aparecida constituted the basis for the charge of vilipending religious objects. The prosecution sought to prove Von Helde’s subjective intention (dolo especficico) to offend the religious sentiments of others by arguing that the proof was “documentary” and demanded no fur- ther explanation. For the judge, the literal sense of “ugly”, “horrible,” and “disgraceful,” adjectives Von Helde used to refer to the statue, was sufficient to show his intention to offend. No discussion of Von Helde’s motivations to commit the crime was present-for example, the background of tension between the IURD and TV Globo over “Decadence.” Instead, the prosecution and the judge put emphasis on the objective results of his actions: an insult to a religious image and the public outrage which followed.

The court affirmed that religious images, because they represent belief, are qualitatively distinct from commodities and other objects. Contrary to the defense’s argument, it mattered little to the court that Von Helde purchased the image for his own use as a studio prop. Regardless of its profane status for the defendant, the court argued, the image had an inalienable and natural connection to collective religious sentiments protected under law. By the judge’s arguments, any sign or object that identifies a religious sentiment by its association with religious belief is an object of faith and thus subject to state protection. The prosecution, in its final statements, presented the analogy of someone who intentionally tortured a dog, and defended the right to do so because he purchased it. The idea is that Catho- lic religious images and pets have the sympathy of many people, thus regardless of the private ownership of the object in question, collective interests-


sentiments-are at stake. Here, the prosecution conflated the idea of a dominant religious collectivity of the nation with a natural order of sentiments worthy of legal protection.

The prosecution, as well as the judge and the defense, cited a number of scholarly legal commentators concerning the definition of religious images and objects for purposes of article 208 of the Penal Code (Costa 1991; Faria 1943; Fragoso 1995; Hungria 1981; Jesus 1994; Mirabete 1990; Noronha 1991 ). The commentators, to varying degrees of specificity and clarity, defined objects of religious devotion as those that were either “inherent” to religious rites, such as relics and images, or others that first needed to be consecrated to such devotion, such as altars and chalices. However, the legal scholars defined neither religious rites nor the boundaries of the sacred insofar as they affect the quality of religious objects. The result was much ambiguity about whether all images are inherently consecrated as objects of and for devotion or are like other kinds of religious objects that can be purchased and must be incorporated into the context of ritual and worship by religious specialists to achieve that status. This vague distinction within the legal scholarship allowed the prosecution to argue that images and relics are, by default, consecrated to worship. The defense took this ambiguity and argued that the prosecution was making an artificial distinction between images and other objects, all of which demand a ritual context for their consecration.

The scholarly commentators are silent about the status of religious images in particular. The jurists may have tacitly assumed that images in a church were inherently consecrated objects, yet there was still ambiguity about the status of images for sale or in circulation outside of the protected domain of churches. The defense took the hypothetical example of a sculptor of images of saints who purposely destroyed one out of dissatisfaction. It sought to demonstrate how the prosecution’s interpretation of “objects of devotion” meant that the sculptor would have violated article 208 of the Penal Code. The judge asserted that the religious object of devotion is a sign or symbol that publicly relates to belief in some way. When someone makes this sign an object of scorn or derision in public, its identification with religious conscience is sufficient evidence to charge that person with vilipendio. The argument, by the judge and by the prosecution, that the pastor’s vilification of Aparecida was an attack on a protected religious object, asserted that the symbolic quality of this national religious icon tran- scended the notion of bounded individual and corporate property rights. In this sense, the state’s position makes religious signs the symbolic property of social collectivities.


RELIGIOUS MOTIVES

The prosecution and the judge insisted that Von Helde’s actions spoke for themselves. The defense argued that Von Helde’s actions were motivated by his religious beliefs without any intent to offend people by vilipending the image. Von Helde’s speech and gestures were based upon his biblical understanding of the sin of idolatry and the biblical prohibition of the adoration of images. Although he acted impulsively and his choice of expressions was unfortunate, the defense explained, Von Helde’s actions were primarily motivated by his religious convictions about idolatry and his desire to communicate them as a pastor. Von Helde described the statue:

The saint’s hand is stuck, here 6, I’m pulling here, but it doesn’t come off. The eye of this saint, the eye of this god, my friend, look here, 6, look at that, it doesn’t cry, it doesn’t have tears, it will never see that I’m here. Look at me saint! Look at me saint! I t doesn’t do anything. . . . This saint here has legs, but doesn’t walk.

The defense, citing Psalm 1 15:4-8,22 argued that Von Helde’s physical contact with the image was meant only to show that it was made of plaster, consistent with evangelical Christian attitudes toward graven images. In closing its case, the defense asserted that Von Helde’s actions were completely motivated by religious intentions. He sought to preach the biblical truth about idolatry precisely on the day that Protestants find that attitude most present in Brazil. In short, “his conduct falls within the same freedom of worship which is said to be violated in this case” (Mariz de Oliveira and Mendonga de Alvarenga 1996 sec. 76). According to the prosecution, the religious sphere needed regulation following the separation of church and state in order to maintain the “perfect harmony between diverse religious groups, establishing the freedom of religious expression . . . as long as it did not contradict other constitutional principles” (Ministirio Ptiblico do Es- tad0 de Sao Paulo 1996, 2). For the prosecution, the prohibition in question would be applied to “acts against public order and decency (bons costumes),” a phrase found in the 1946 and 1967 constitutional articles on the freedom of religion but absent from the more liberal constitution of 1988 (Sampaio 1989; Senado Federal 1986). The prosecution argued that Von Helde over- stepped his right to religious liberty and infringed upon that of millions of Catholics when he offended their religious sentiments.

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22. “Their idols are silver and gold, the work of human hands. They have mouths, but do not speak; eyes, but do not see. They have ears, but do not hear; noses, but do not smell. They have hands but do not feel; feet, but do not walk; they make no sound in their throats. Those who make them are like them; so are all who trust in them” (New Oxford Annotated Bible).


TOLERANCE AND PLURALISM

Harmony among religious groups is taken to be a normative part of the public order guaranteed by the Brazilian constitution, not something that is negotiated through public discourse. Religious conflict at the level of ideo- logical and vocal opposition is unacceptable. A basic tenet of the religious liberty advocated by the state is that one cannot publicly criticize other religions or religious faith. In this sense, religious freedom is defined against individual rights of expression in the public sphere. Iurica Tanio Okumura, prosecutor (in case 630/95), in an interview, summarized the state’s position:

I think that you can talk about the values of your religion without attacking another. You can certainly defend your religion, but in a respectful way that doesn’t hurt other persons. This doesn’t mean that you have to use arguments in a way that disrespects another religion.

In a separate interview, Judge Ruy Leme Cavalheiro (of the 12” Vara Crimi- nal, Sao Paulo) agreed:

One can express oneself so long as the other does not see his rights of expression restricted or directly affected by this action, One thing is to criticize content, about how to express an idea, a criticism about something, but what is not acceptable is criticism about holding a particular faith, or a particular sentiment. . . . The point of religious freedom is to assure liberty to all religions. . . . One cannot criticize a form of worship because it is done in a manner different than another. It will be practiced in the way its dogma understands how it will be done.

Even if Von Helde’s church doctrine differs from other creeds, he does not have the right to attack them in public space. Challenging the truth of one’s neighbor’s religion in a disrespectful way is likely to provoke him per- sonally and the resulting conflict represents an out of control situation that threatens social order:

The fact that some religions condemn the worship of images, as is the case of the Universal Church of the Kingdom of God, does not authorize the accused to publicly combat that practice, at the risk of creating a sentiment of intolerance which compromises the peaceful and respectful coexistence between different religious groups. Once this affront to the Constitution ( M a p Curtu) is tolerated, each individual would seek to impose on others his own particular religious belief, which may even result in significant discord accompanied by inevitable social disorder. (MinistCrio Pliblico do Estado de Sao Paulo 1996, 3; emphasis in original)


The rhetoric of legal discourse promotes religious tolerance and pluralism, The defense recognizes this by downplaying the social reaction to Von Helde’s actions and by citing “dispassionate” commentary in the press that relativized their public significance.

By rhetorically confronting state power with that of the Universal Church in the public sphere, the final statements of the state prosecution denied that Von Helde had the right to proclaim as he did his faith as the true religion. The prosecution cited a statement made by the lawyers who successfully defended Bishop Edir Macedo, the leader of the IURD, against criminal charges of charlatanism and folk healing. Macedo’s lawyers invoked the history of church and state relations during the age of absolutism when kings persecuted religious minorities in the name of the church. The prosecution ironically celebrated these “illustrious lawyers” who confirmed that since the separation of church and state,

the State-Judge cannot authorize itself with the right to say what is the true religion, just as the pastors of the Universal Church also cannot do so, elevating themselves into preachers of the supreme truth. . . . Moreover, just as State power erred in running after the “possessed” who worshipped a different religion than that recognized by the king, Von He& also erred in trying to combat those “possessed” who hold other beliefs, different from those he professed and preached. ((Ministerio Pliblico do Estado de Sao Paulo 1996, 20; emphasis in original)

It is as if the defendant or his church were assuming the power of the “state- judge” or a secular power to determine the religion of the collectivity. The argument projects the same restrictions about religion that the state must constitutionally observe onto Von Helde and the religious organization he represents. The notion of religious pluralism promoted by both the prosecution and the judge in the Von Helde case appears to ignore claims to moral exclusivity and superiority asserted by many religions. The judge and prosecution interpreted the constitutional right of religious freedom to deny such expressions.

The understanding of religious pluralism in the prosecution’s argument is modeled on an idealized conception of social order as a preexisting harmony: each church has the good sense to respect its “competitor” and its claim to truth, knowing that ideally the law is there to maintain the equality of religious freedom for all. Yet the rhetoric of equality belies the kinds of advantages and legal status historically extended to Catholicism as the religion of the majority. Many contemporary defenders of the federal holiday in honor of Nossa Senhora Aparecida argue that the Catholic majority and the patron saint’s relation to tradition sanction its status. They justify this seem- ing contradiction to the separation of church and state in terms of the faith of the collectivity and the nation.


Protestant Christians have opposed such notions of the collectivity and of the rights of the dominant majority in Brazil. A sense of historical resistance to Catholic hegemony is common to many Protestant communities in Brazil, but for some this resistance has become more explicit with increases in the visibility and power of Pentecostal churches like the Uni- versal Church. Public iconoclasm has exposed the contradictions between the Brazilian state’s explicit support of Nossa Senhora Aparecida as a public religious symbol and the rhetoric in defense of the constitutional principle of religious freedom.

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Documents

Law and the Image of a Nation: Religious Conflict and Religious Freedom in a Brazilian Criminal Case