Liberdade religiosa x liberdade de expressão: uma análise crítica do discurso jurídico nas decisões do STF.

Abstract

Noting that the Brazilian Federal Constitution of 1988, in its article 5, items IV and V, enshrines both the right to religious freedom and the right to free expression of thought, and taking into account that Brazil is a country strongly marked by religiosity – based on data from the last census of the IBGE (Brazilian Institute of Geography and Statistics) on the subject, carried out in 2010 – this research proposed to answer the following problem: in the judicial decisions rendered in Brazil by the FST (Federal Supreme Court), in cases of apparent conflict between religious freedom and freedom of expression, is it possible to identify whether the members of the FST based their foundations on discourses of religious domination? In order to seek an adequate answer, the qualitative empirical method has been chosen, since a critical analysis of the legal discourse on the matter has been carried out, exposed in three representative judgments of the very few who reached the highest court of Brazilian justice: Appeal to the Supreme Court in Habeas Corpus nº 134.682/BA, Appeal to the Supreme Court in Habeas Corpus nº 146.303/RJ, and Action for declaration of unconstitutionality by omission 26/DF. Thus, we use the Critical Analysis of Legal Discourse (CALD) as a fundamental methodological tool, using two categories of analysis of paramount importance: 1) Modalization; 2) the Modes of Operation of Ideology. The answer we arrived at, in fact, was that the Supreme Court used the constitutional dynamics of the relativity of fundamental rights, which states that one right should prevail over another to depend on the specific case, basing the grounds of the judgments not on discourses of religious domination, but on legal discourses that favor religious domination, especially the strongest religious denominations in Brazil. Thus, we conclude that, in the cases analyzed by us, the judgments do not bring typically religious discourses that exercise a role of domination; rather, they bring truly legal discourses that, in turn, favor the domination of religious sectors in our society.