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The Relations between Church and State in the
Argentine Republic

Por Juan G. Navarro Floria

Until recently, even now for many people, to talk about the relations between Church and State in Argentina implied to talk about the relations between the Catholic Church and the State. The same happened and still happens throughout Latin America. This perception results from the indelible mark engraved by the Catholic Church’s foundational presence, accompanied by three centuries of Spanish conquest and rule in America. During this long time, the Catholic religion has been the sole religion admitted and protected by the civil power. The Catholic Church precedes the national states (including the Argentine state), and the Catholic faith pervades all of our culture.

The Argentine Republic became independent from Spain in 1816, yet only in 1860 would Argentina have a proper constitution. During the first half of the 19th century, the religious scene, so far dominated by the excluding presence of the Catholic Church, became increasingly varied due to the incipient presence of other religious communities. As time went by, their presence strengthened, although the Catholic Church remained as the central presence.

Freedom of worship is rooted in the independence of today’s Argentine Republic. Its first expression was the treaty of Friendship, Trade and Navigation signed in 1825 between the United Provinces of the Río de la Plata and the British Majesty, which ensured freedom of worship to the British subjects and allowed for the settlement of the Anglican and Presbyterian churches [1].

In the second half of the 19th century, historical Protestant churches, Jewish communities and evangelical groups settled in Argentina; and so did Islamic communities, Orthodox churches an other Evangelical and Pentecostal churches in the early 20th century. Progressively, the non-Catholic religious groups turned from being exclusively made up of immigrants or foreigners to becoming mainly composed of native Argentineans. Later on, all kinds of religious groups appeared, some hailing from overseas and others founded in Argentina. Today, Argentina is a medley of a most varied and complex nature. This variety itself is the best evidence of the wide religious freedom that features Argentina, beyond the formal legal wording. According to surveys, of nearly 38,000,000 inhabitants in Argentina, eighty percent (80%) of the population acknowledges to be Catholic, ten percent (10%) belongs to different Protestant, Evangelical and Pentecostal churches, three percent (3%) belongs to other religions (specially the Jewish numerous community, with its significant social presence, but also Muslims and members of Afro-Brazilian groups; much less numerous, Buddhists, Hindus, Mormons and members of other religious groups); and seven percent (7 %) states to be atheist or agnostic. The group evidencing the highest growth are the Evangelicals (and among them, specially Pentecostals and Neo-Pentecostals), which have specially grown in the last twenty years, to a higher extent among the low-income urban sectors.
These last years have also witnessed an increase in religious practice. According to recent surveys, over 43 % of the population goes to church at least once a month; but 80 % admits to be a “religious person” (whether going to church or not). The Catholic Church is the institution receiving the highest degree of trust from the population (exceeding by far, for instance, political parties, unions, corporations or the government itself) and experiences an increasing participation from its faithful. The Jewish community decreases by assimilation and emigration, while orthodox practising groups increase among its members. The Islamic community has gained organisation and presence, and in 1998, the biggest mosque of South America was opened in Buenos Aires.

Argentina has never know significant religious conflicts. On the contrary, the different religious groups have always coexisted in excellent terms. Today, this is evidenced in multiple ecumenical and inter-religious initiatives, specially concerning social aid. In 2001, the United Nations Special Rapporteur on Religious Freedom paid an official visit to Argentina and produced a very positive report in this respect [2].

1. Church and State in the National Constitution
The National Constitution of the Argentine Nation, in force since 1853, in its Article 2 states that "the National Government supports the Roman Catholic worship". That article has never been amended, despite the fact that on occasion of the 1994 constitutional reform, the Catholic Conference of Bishops itself requested that it be replaced by a wording similar to the Spanish Constitution [3], which might better express the current sensitivity about the matter.

Such “support of the worship” is construed in two different ways. Some find a purely economic sense in it, reflecting the State’s obligation to contribute money for the operation of the Catholic Church, as a compensation for the confiscation of Church property that occurred in the early 19th century.
Other authors interpret that Article 2 of the Constitution demands from the Federal Government an explicit support of the Church, beyond the economic aspect. Still, there is general consensus of opinion on that it does not imply the State’s confessional nature. In a recent decision confirming the effect and constitutionality of the mandatory civil matrimony with divorce a vinculo matrimonii, the Supreme Court considered that the “support of the Catholic faith” does in no way bind the State to legislate pursuant to the Catholic doctrine, being it entitled to do so autonomously [4].

As a consequence of Article 2 of the Constitution, diverse laws set allowances destined to the Catholic Church. The main one benefits the Diocesan seminaries and five institutes of consecrated life [5]. Another allowance is granted to residential and auxiliary bishops, even pertaining to the oriental rite [6]; and a further one is given to the parishes located in border areas or those enduring utmost economic hardship [7]. Such economic contribution, however, is minimal: in 2002, it totalled (adding all mentioned allowances and other minor ones) some three million euros (€ 3,000,000), an insignificant portion of the national budget. The real support of the faith is in the hands of the Catholic faithful themselves.
Much more significant than those small allowances are the tax exemptions that benefit the religious faiths. Being Argentina a federal country, there are national, provincial and municipal taxes, each of which follows its own regime. Yet the common denominator is the tax exemption applied to the Catholic Church as well as to all remaining religious faiths, in the same terms (there are no significant differences between one and the others on this regard). Such exemption, depending on the taxes, applies either to the subject itself (church) or to the activity developed by it (acts of worship).
The most significant exemption is the one applied to religious institutions regarding the income tax [8]. It exempts churches and other religious institutions from paying taxes on incomes of any kind and also on their property. To enjoy this exemption, a special statement must be obtained for each subject from the tax administration authority (Administración Federal de Ingresos Públicos), except in the case of the Catholic institutes of consecrated life, where exemption is automatic [9].

Furthermore, as regards import and export customs duties, broad exemptions are forseen for religious institutions [10]. In the 1853/60 Constitution, Argentina vested in herself the rights of Patronage enjoyed by the kings of Spain: the right to appoint bishops, the recognition or exequatur of ecclesiastical documents and other. The 1994 constitutional reform suppressed the clauses referring to the Patronage, that had nevertheless become dead letter since the 1966 Buenos Aires Convention between the Argentine Republic and the Holy See [11], which "arranged" the exercise of said Patronage by suppressing it in practice. By virtue of such agreement (the first one signed by the Holy See after the Second Vatican Council), the Holy See freely organises the dioceses and ecclesiastical districts, and freely appoints the bishops (merely serving officious advance notice upon the Government in the name of the appointee). Free communication between the Holy See with the Argentine Church is further guaranteed, as well as the free entry of priests, religious members and religious congregations into the country.

Together with the Patronage, erased from the constitution were the binding condition that the National President and Vice-president be Catholic, and the confessional oath (which nevertheless, according to Article 93, must be sworn “respecting their religious belief”, thus raising doubts as to the event of a president having absolutely none). Instead, there subsists, from omission by the legislator, the anachronistic prohibition for the “regular ecclesiastics” to be “members of the Congress” (Article 73).

The Congress keeps the power to “approve or reject […] concordats with the Holy See” (the execution and signature of which are expressly attributed to the Executive –Article 99, paragraph 11), recognising that international "Treaties and concordats have higher standing than laws" (Article 75, paragraph 22).

On the other hand, the right of “All inhabitants of the Nation [...] of freely practising their religion” (Article 14) remains unaltered and is expressly extended to the foreigners (Article 20), pursuant to the traditional and wide Argentine encouraging attitude towards immigration [12]. This statement, a very significant novelty of the 1853 Constitution, definitely established freedom of worship in Argentina and is now expanded by the provisions of the treaties that ensure and explicit the rights of religious freedom [13]. In the 1994 constitutional reform, said treaties were granted constitutional hierarchy [14].

The 1966 concordat or agreement signed in Buenos Aires with the Holy See that ended the Patronage, merely regulated those issues that were controversial at the time: dioceses creation, appointment of bishops, free communication between the Holy See and the local churches, free entry of ecclesiastic personnel and of religious orders and congregations.

However, Article 1 of the Agreement, by which “The Argentine State recognises and guarantees to the Roman Catholic Church the free and full exercise of its spiritual power, free and public worship, as well as its jurisdiction within the scope of its competence, for the realisation of its specific ends”, has acquired special significance as from some decisions of the National Supreme Court of Justice. Indeed, in 1991 [15], the Court stated that “Such recognition of jurisdiction implies absolute reference to the canon legal regulations to govern the Church’s property destined to the pursuit of its ends…”.

Later on, with regard to a conflict arising between a priest and his bishop on matters concerning celibacy, the same doctrine was applied to sustain the incompetence of the state courts and the submission of the case to the exclusive ecclesiastic jurisdiction [16]. From said decisions, the administrative seat applied the principle of “absolute reference to the canon legal regulations” in other cases, such as the recognition of ecclesiastic artificial persons [17].
A further significant agreement between Argentina and the Holy See is the 1957 convention on military jurisdiction and religious assistance to the Armed Forces [18]. It had turned outdated since the promulgation of the Code of Canon Law of 1983 and, specially, the Apostolic Constitution Spirituali Militum Curae of 1986, and was therefor updated in April of 1992 [19].

2. Legal System of the Religious Faiths
For over ten years, Argentina has been discussing the updating of the laws on matters of minority churches and confessions. Congress has considered diverse legislative bills claiming to provide a wide and modern framework to religious confessions and meant to be applicable, at least in part, to the Catholic Church.

Their consideration progresses slowly. On the one hand, the more conservative sectors of the Catholic Church fear that a new legislation might excessively favour minority groups and “sects” (although the Episcopal Conference, when asked their opinion, formally supported the reform). On the other hand, some minority groups, specially Evangelical, have claimed an absolute equalisation with the majority confession, despite the evident differences that in fact exist. But the truth is that the discussions have achieved a reasonably wide consensus, which foretell substantive progresses in the years to come.

Meanwhile, the de facto law 21,745 passed during the last military dictatorship remains in force, although its wording and spirit are hardly compatible with the Constitution and the international treaties ensuring religious freedom, as the State itself has acknowledged [20]. Such law compels all “religious organisations” other than the Catholic Church to register themselves at an agency of the National Government (the Registro Nacional de Cultos [21]), as a condition for their operation and existence as legal persons, even though the registration does not imply the recognition of their legal capacity [22].

To enjoy legal capacity, registration at the Registro Nacional de Cultos is a necessary condition, yet not condition sufficient, for non-Catholic churches and religious institutions. They must then enter themselves as civil associations before another state body. The forced use of this legal mould, often in disagreement with the very structure of churches and communities, rises several practical hindrances.

The Registro Nacional de Cultos records over 2800 institutions. It must be noticed that such figure embodies institutions of utmost diversity in kind and significance: it does in no way mean 2800 religions. In many cases, they are small autonomous Evangelical congregations, made up of twenty or thirty people, or other small groups (spiritualists, umbanda groups –followers of Afro-Brazilian syncretic religions—, Buddhists and so forth); in other cases, they are vertically-structured churches or faiths, which in turn have hundreds and even thousands of subsidiaries or local temples (Assemblies of God, Jehovah's Witnesses, Mormons and other Evangelical churches). The global figure includes, at a same level, long-standing faiths in Argentina (such as the Anglican Church, Orthodox churches, Jewish communities), groups of recent creation and doubtful stability, even institutions which are not strictly churches or religious communities but where once admitted by the Registro (schools, editorials, libraries). Such disparity and disorder is, indeed, one of the reasons that call for a profound reform of the system.

Churches and religious groups, as artificial persons, may own property without restriction. But in the case of the Catholic Church, Article 2345 of the Civil Code renders canon law applicable with civil validity, so far as the transfer of temples and sacred or religious goods is concerned. The scope of said rule has been defined and extended by jurisprudence of the Supreme Court and other courts. Property classification has been left in the hands of the canon law; and this exceptional rule was rendered applicable to all property owned by the Church, not just the temples [23].

From said rule (and from Article I of the aforementioned 1966 convention with the Holy See), both doctrine and jurisprudence have concluded that ecclesiastical property cannot be seized nor foreclosed by the creditors [24]. Recent legislative bills on matters of religious freedom have extended the non-foreclosure benefit for temples to the rest of the religious faiths. Although laws have not been passed, a court has already acknowledged such right to the Orthodox Church [25], considering that there is no reason for denying to other churches what is granted to the Catholic Church.

3. Specific Legal Regime of the Catholic Church
The Catholic Church is considered by the Argentine Civil Code (Article 33) a “public artificial person”, just as the National State or the provinces. This condition of public artificial person is acknowledged to each of the dioceses, parishes and other artificial persons that are part of the Catholic Church, pursuant to canon law. This principle has been upheld several times by the courts and the Administration [26].

Under the 1853/1860 Constitution, an act of Congress was required in order to authorise the entry of Catholic religious orders into the Republic (a requirement that was never actually met). Consequently, except for rare exceptions, the different Catholic orders and congregations were legally constituted as civil associations, concealing their true nature.

In 1995, Law 24,483 [27] was passed, governing the civil existence of de institutes of consecrated life and societies of apostolic life pertaining to the Catholic Church. It grants said institutes full civil acknowledgement of their canonical legal capacity, subjecting their organisation, internal life and relations with their members exclusively to canon law. They must only register and file their constitutions or statutes, and their authorities, with a special registry within the scope of the Department of Religious Affairs [28]. Since this regime has been established, over four hundred institutes have been registered.

The Catholic Church’s condition as public artificial person (or public corporation) has enabled it to own several radio and television licenses, ever since the 1990 resolution framing, precisely, the situation. The remaining religious faiths have no access to such ownership , except if done by mediation of natural persons or corporations.

4. Statutes of the Religious Ministers
Argentina has no organic regulations of the statute of religious ministers. The Civil Code contains some rules limiting the civil capacity of priests, and more firmly that of the members of Catholic religious orders. Professed religious are not entitled to enter into contracts of any kind, except for the purchase of movable property, in cash (Article 1160). Nor can they be tutors (Article 398, paragraph 16) or witnesses to public instruments (Article 990).

Neither them nor the religious orders can engage in trade (Article 22 of the Commercial Code). All such restrictions to the civil capacity affect only Catholic professed religious.
Jurisprudence unanimously recognises that the nature of the relation of priests and religious ministers with the Church is non-labour, sui generis, governed by rules of both civil and canon law [29]. This same principle has been expanded to ministers of other cults [30] and particularly, to professed religious [31], the latter situation now having an expressed positive rule (Article 2 of law 24,483).

In terms of social security, Catholics priests and professed religious, as well as the religious ministers of the communities registered with the Registro Nacional de Cultos, have been considered “voluntary contributors” [32]. This means that, contrary to the bulk of the workers, they are not bound to make social security contributions; but the may do so if they voluntarily register as autonomous workers in order to be entitled to the benefits provided by law (superannuation, retirement and pension).

Catholic bishops enjoy a special regime by which the State pays them a life monthly allowance [33] as from their retirement caused by age or disability. An analogous system exists for Catholic secular priests over seventy [34] having no other social security benefit, although in this case the monthly allowance amounts to a minimal retirement pay ($ 150, equal to US$ 45).

The condition of religious minister, without distinction of faith, is an aggravating circumstance for the commission of certain crimes described in the criminal code, in particular, crimes against sexual integrity [35].
Who are religious ministers depends on the determination of each religious community, although years ago the Supreme Court resolved that in order to be considered a religious minister, a person must have received a special instruction, be exclusively or prevailingly devoted to their ministry, and have different rights and duties from the ordinary faithful [36].

5. Education and Cultural Property
The Argentine Republic has a long-standing laicist tradition concerning education, originated by law 1420 of 1884 (today, repealed). Nevertheless, said law expressly allowed for religious teaching at public schools, after hours and in charge of the ministers of the respective cults. Still, this possibility was not applied, except for some provinces. Today, the Federal Education Act is in force (law number 24,195 [37], of 1993).

The federal education act is a framework law in force throughout the country, and must be supplemented by laws passed by each province for its own territory. The Federal Act does not expressly set forth that religious teaching be given at public schools, but it may happen, whether because the provincial act [38]so orders (as is sometimes the case), or because the school incorporates it. The “religious dimension” deserves attention when considering the curriculum.

The Federal Education Act expressly considers the Catholic Church and the rest of the religious faiths as educational agents, and recognises their right to own educational centres of all levels, which enjoy a considerable autonomy. Private teaching is widely acknowledged in Argentina, and it may receive State subsidies for its running. Again, the Catholic Church has no privileges in this regard.

The Higher Education Act enables the Catholic Church and the rest of the religious faiths to own and manage universities and university institutes, issuing academic degrees and professional degrees equal to those issued by the national universities [39]. The various Catholic universities existing in Argentina since the 1960s have been joined by others of Jewish or Evangelical orientation.
As regards cultural property, there is no complete and updated legislation on the matter, but only partial rules of a different level. Still, it is worth noting that most of the monuments and historical sites declared by law or decree, as the case may be, are churches, convents and other property owned by the Church.

6. Religious Assistance in the Armed Forces, Jails, Hospitals and Analogous Situations
As already mentioned, Argentina signed, in 1957, a convention with the Holy See, which created what was then called Vicariato Castrense [military vicarate], for the pastoral assistance to the military (land, sea and air forces). The agreement was updated in 1992 by means of an exchange of reversal notes, as a result of which the Vicarate earned its current name and structure as Military Ordinariate of the Argentine Republic [40].

On the contrary, the faithful of other faiths have not been legally provided with benefices or other form of special assistance. The manifest reduction in the number of members of the Armed Forces and their current insertion in the civil society has contributed to dilute the claims that might have been posed in this regard.

Security forces experience an analogous situation. Applicable laws provide for Catholic benefices and chaplains who are part of the professional corps, in the federal police as well as in the penitentiary service. Something similar occurs in the police corps of the provinces.
The 1957 Convention contains rules referring to the exemption of clergymen and Catholic seminarians from the compulsory military service, and exception rules apply also in the event of general mobilisation or armed conflict. Law 17,531, which ruled the compulsory military service, extended such benefit to the religious ministers and seminarians of all faiths.

Law 24,429, of 1995, replaced the compulsory military service for a voluntary and rented military service; but for the event of compulsory mobilisation or summon, it provides a regime of objection of conscience (not necessarily on religious grounds) and of social service in lieu of the military service. The right of objection of conscience to the armed military service had already been recognised by the Supreme Court of Justice, even when no legal rule authorised it [41].

The right of objection of conscience has also been recognised in other domains. For instance, in the cases of the Jehovah’s Witnesses to blood transfusions [42] or the reverence to the symbols of the country [43]. Recently, the courts have further recognised objection of conscience as to swearing the oath [44]. Various recent provincial laws recognise the right of objection of conscience for health professionals, concerning practices linked to reproductive health care [45]. Today, this is a subject of intense debate in Argentina, as a result of a national law passed on reproductive health [46], and foresees the possibility that it be not applied at confessional hospital and educational private centres (improperly called “institutional objection of conscience”), but does not expressly acknowledge the individual right to objection of conscience for professionals.

Instead, it has been denied in other cases, for instance, when it was raised against the compulsory vote in the elections, for the blank vote was available [47]; or against the regime of compulsory civil matrimony with non-renounceable divorce a vinculo matrimonii [48].

The situation of people deprived from their freedom in the national sphere is currently governed by Law 24,660 [49] of 1996, which fully guarantees the right of all persons deprived from their freedom to receive religious assistance according to their convictions and from the ministers of their cult. In the case of Catholics, such assistance is rendered by chaplains from the penitentiary system, while in the case of other faithful, their ministers are entitled to render the assistance required by them. For this purpose, faiths themselves grant the necessary credentials to their ministers. In every prison there is a chapel destined, in principle, to Catholic worship, but which can be used by inmates of other faiths and for the respective services. In many prisons, upon the request of the inmates of Evangelic faith, they are now being grouped in the same pavilion, where they celebrate acts of worship.

7. Rules against Religious Discrimination
Non-discrimination on religious grounds is a basic principle of the Argentine ecclesiastical law. A generic rule on this matter is the “anti-discrimination” act (law number 23,592) of 1998 [50], which forbids in general arbitrary discrimination of any kind upon religions grounds [](among other) and grants victims of religious discrimination the right to redress. The participation in an organisation whose propaganda is based upon ideas or theories of the superior nature of a group of people of a certain religion, whose purpose is to foster or justify religious discrimination or to encourage or incite harassment or hatred against any person or persons on account of their religion is a criminal offence. Any offence, when committed by harassment or hatred to a religion or aimed at wholly or partially destroying a religious group, receives an aggravated punishment. Religious discrimination is punished on diverse matters. For instance, in labour matters, it is a “very serious infringement” from the employer to discriminate on religious grounds [51]; and dismissal derived from religious discrimination is punished with the obligation to pay a special compensation [52]. Public employees cannot “perform... any action or omission that may imply discrimination by reason of race, religion...” [53].

8. Conclusions
Having been kindly invited by the members of the European Journal for Church and State Research to write for such a remarkable publication about the Argentine Republic, I wondered how to face such a challenge. It did not seem helpful to refer merely to the decisions, events and rules of the last or recent years, given the need to offer an overall vision. Neither did I find it timely to detail the historical evolution of some institutions. I have therefor intended to roughly outline an updated overview of the current Argentine ecclesiastical law, with some indispensable historical references, some minimal sociological data and an emphasis on the institutional and legal aspects. Should any restless mind wish to get deeper into the subject, I have referred to the sources of each case through footnotes. A final warning: Argentina is a federal country. Almost everything contained in this paper refers to the federal or national legislation. But each of the provinces also legislates, concurrently with the Nation, on tax, procedural, educational and other matters. A complete study of the relation between Church(es)-State in Argentina, must consider, also, the laws and situations in each province. Argentina, in its political and institutional organisation, resembles the United States rather than Europe. It is a federal country, presidential and not parliamentary, with a rather brief history and a significant immigration contribution. Yet its cultural matrix is definitely European and Latin. Indeed, one of the constitutional differences between Argentina and the United States is the relation between State and Church, defined –not by chance— at the very beginning of the Constitution. Argentina, which cannot deny its LatinAmerican essence, is nevertheless a country with a definite European culture. This leads us to observe with special interest the ecclesiastical law developments in Europe, to find remarkable similarities with various European countries, and to appreciate the increasing academic exchange already existing among our countries, which will hopefully progress.