Hijab: Brazil’s Supreme Court Upholds Religious Freedom , Rules Hijab Official In Brazil; Decides Covering The Head Is Allowed On Official Documents

In a landmark decision on Wednesday, the 17th of April , 2024 , the Supreme Federal Court of Brazil unanimously ruled that individuals can wear religious attire covering the head or part of the face in photographs for official identification documents

The journey towards this decision began in February 2024, as the Supreme court commenced its analysis with Minister Luís Roberto Barroso presenting the report, followed by compelling oral arguments. As the day drew to a close, the trial reached its conclusion, marking a pivotal moment in the court’s history.

The case at hand stemmed from a civil public action initiated by the Federal Public Ministry in response to a complaint from a nun belonging to the Congregation of the Sisters of Santa Marcelina. The nun was denied the right to wear her religious habit in the photo she intended to use for the renewal of her driver’s license. Notably, both her previous driver’s license and identity card featured her wearing the habit.

The Public ministry contended that the prohibition imposed by the Paraná State Department of Traffic (Detran) was unjustifiable, asserting that the religious habit was an intrinsic part of the identity of the Sisters of Santa Marcelina and not merely an “aesthetic accessory.” Furthermore, it argued that compelling the nun to remove her veil would be akin to mandating an individual to shave off their beard or mustache, thereby encroaching upon their right to self-determination. Additionally, it emphasized that restricting the use of religious attire undermined the State’s acknowledgment of freedom of worship.

The Federal Regional Court of the 4th Region ruled in favor of the nun, recognizing her right to don religious attire in her driver’s license photo and nullifying a provision of Resolution 192/06 of the National Traffic Council (Contran).

However, the Union appealed the decision to the Supreme court advocating for a relaxation of constitutional provisions to prevent the use of religious clothing in driver’s license photos. It argued that while the Constitution guarantees freedom of conscience and belief, this freedom is limited when individuals invoke it to evade common legal obligations.

Minister Barroso, serving as the rapporteur of the case, acknowledged the significant role of religiosity in contemporary society, stressing that the Supreme court must uphold and respect religious freedom. He highlighted that the Constitution addresses religion through the lenses of religious freedom and state secularism, with the latter not inhibiting freedom of worship. Barroso underscored that religious attire serves as an outward manifestation of religious sentiment and missionary efforts to attract followers.

In assessing the tension between religious freedom and public safety, Minister Barroso advocated for proportionality, deeming the prohibition on religious attire in official photos as excessive and unnecessary. He argued that such restrictions compromised religious freedom without substantially enhancing public safety, as facial features can still be discerned even with a covered head.

Furthermore, he cautioned against cultural biases, noting that while the use of religious attire might pose challenges in some countries, it does not present a problem in Brazil. He emphasized the lack of proportionality or reasonableness in imposing such restrictions, especially since religious individuals typically do not pose a threat to society.

In the end, the Supreme court upheld the decision of the Federal Regional Court, affirming the nun’s right to wear religious attire in official photos. It proposed the following thesis: “It is constitutional to use accessories or clothing related to belief or religion in photos for official documents, as long as they do not prevent adequate individual identification, with a visible face.”

This groundbreaking decision not only reaffirms the principle of religious freedom but also underscores the importance of respecting diverse cultural practices and identities in a democratic society.

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