In the recent case “Castillo c. Provincia de Salta”, the Argentine Supreme Court declared the unconstitutionality of a provincial norm that imposed religious education in public schools during school hours. The Court held that, while facially neutral and while allowing the possibility of parents to opt their children out of the classes, the norm violated in practice the right to equality and the right to privacy.
Regarding equality, the practice discriminated against those who did not profess the Roman Catholic faith, which is the faith of the overwhelming majority: in Salta, the Province in question, 87% of parents define themselves as Catholics. Students who opted-out were left either unsupervised outside the classroom, or at the back of the classroom to do their own work while the course was ongoing. This, for the Court, meant that the norm was ‘covertly’ discriminatory.
As to privacy, the violation stemmed from parents being forced to fill out a form expressing the desire to opt their children out of the class, which meant disclosing their religious beliefs. The majority understood that neither parents nor children should be forced to disclose their religious beliefs under the ‘right to silence’ that stems from the right to privacy.
While both equality and privacy are rights clearly identified in the Argentine National Constitution, the Court relied heavily, as is usual, on different international human rights instruments, including treaties, case-law, and comments. This common practice stems from the fact that the last Constitutional Reform (1994) granted constitutional status to many human rights treaties, which makes them one more source of constitutional law in the country.
Two important developments should be highlighted in terms of human rights litigation. First, this is, allegedly, the first time the Court has been clear about the distinction between a facially neutral norm or practice and the ‘covert discrimination’ they might generate in reality. For this, it explicitly used the language of ‘disproportionate impact’ present in the Committee on Economic, Social and Cultural Rights’ General Comment Nº 20. Further clarification, however, will be needed to develop this standard in the future. For example, while the Court asserted that the State should prove the ‘necessity’ of the norm or the practice where a disproportionate impact is evident, it is not clear if this test encompasses the ‘least restrictive means’ limb of the strict judicial scrutiny triggered by a norm that uses suspect classifications.
Secondly, the Court explicitly uses the language of structural equality. It asserts the need to consider the social context of norms and practices, and how they impact disadvantaged groups. For the Court, the Constitution adopted, in its reform, a perspective of equality that transcends that of mere non-discrimination to include a ‘structural perspective that looks at the individual in their capacity as a member of a group’. It is reasonable to expect public interest litigators to push the Court on this language in the realm of social and economic rights in the near future.
A valid critique of the case is that, while open to various international human rights sources, it did not address the questions of the right of children. The majority discussed at length the right of adults to educate children in the religion of their choice but by not mentioning the CRC, it left out how the parents’ rights need to be exercised ‘in a manner consistent with the evolving capacities of the child’ (art. 14.2).
Finally, the Court did say that, in principle, these classes could be dictated in public schools as long as they are outside school hours. But this arose from a concession by the claimant: it does not mean that religious education outside school hours is impervious to constitutional challenges under the right to equality. That discussion is left for another day.
Stressing the need to avoid divisiveness between religions and the need to educate children in an atmosphere free of proselytism (with direct back-to-back references to two landmark US and ECtHR decisions), the Court put an end to this decade-long litigation. In a country where the Roman Catholic Church is supported financially by the State under a constitutional mandate (art. 2), one can expect this judgment to enter the canon of landmark decisions on religion in public education, and to be a beacon for further public interest litigation.