December 16, 2023 at 8:00 am EST
A Chilean citizen receives a copy of the proposed new constitution outside the presidential palace in Santiago ahead of Sunday's referendum. (Ivan Alvarado/Portal)Comment on this storyCommentAdd to your saved storiesSave
Chileans will vote Sunday on a draft constitution that contains echoes of U.S. conservatism: the right to religious objections, the right to home schooling and language that could be interpreted to suggest the personality of fetuses.
The document, written largely by members of Chile's right-wing Republican Party, is in many ways more conservative than the 1980 dictatorship-era constitution it is intended to replace. And its connection to current trends in US conservatism is no coincidence. One of its key architects comes from an influential group of conservative Catholic legal thinkers at the University of Notre Dame.
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“This constitution expresses the most conservative agenda of the right wing in the United States,” said Francisco Cox, a prominent human rights lawyer in Chile. He compared the Charter's protections for “conscientious objection” to the case in which the U.S. Supreme Court sided with a Colorado baker who refused to bake a wedding cake for a same-sex couple.
The parallels between the movements in the two countries underscore the broad reach and growing global influence of religious conservatives in the United States — and the U.S. Supreme Court.
Sunday's referendum comes just a year after Chileans rejected a radically different constitution – a charter considered one of the most progressive in the world, providing sweeping rights for women, indigenous communities, nature and even animals.
Efforts to replace the constitution, originally written by General Augusto Pinochet's authoritarian regime, began as a negotiated solution to massive protests against widespread inequality in the country. A majority of Chileans supported the idea. But last year's 388-article document – backed by left-wing President Gabriel Boric and written by an elected, left-dominated assembly – was criticized for being too long, too left-leaning and too radical, particularly in its structural changes to the political system and legal system of the country.
Chilean voters strongly reject the left-wing constitution
This year Chile tried again — This time with an elected Constitutional Assembly dominated by the country's far-right Republican Party. The resulting document does little to eliminate inequalities, its critics say. Polls again suggest Chileans will reject it.
The According to Jorge Barrera-Rojas, a Chilean lawyer who served as chief counsel to the Constitutional Assembly Republicans and is also a law professor at the University of Notre Dame, the involvement of conservative U.S. actors was not direct.
“We are facing similar debates at the global level,” Barrera-Rojas said. “Debates about the protection of religious and educational freedom, the right to life and whether we are dealing with a human being or not in relation to the unborn.”
Barrera-Rojas said that while the Constitutional Council did not consult any U.S. groups or experts, it did consult its experiences and mentors at Notre Dame — where Supreme Court Justice Amy Coney Barrett studied law and served on the faculty for nearly two decades — informed his approach to the Chilean constitution. One of the Notre Dame law professors he admires is Nicole Stelle Garnett, who has frequently advocated for publicly funded religious charter schools. Barrera also served as an “outside” judge for Thomas L. Kirsch II, the judge appointed by then-President Donald Trump to fill Barrett’s seat on the U.S. Court of Appeals for the 7th Circuit.
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Barrera-Rojas said he is in close contact with, but is not a member of, the Alliance Defending Freedom, the Christian conservative organization behind many landmark Supreme Court cases, including this year that upheld Christian vendors' rights was to reject gay weddings.
Barrera-Rojas claims he did not cite any specific US cases when advising the Constitutional Council. But speaking to the Washington Post: He mentioned a Supreme Court case that, as he put it, reflects a global debate over religious discrimination – the case in which the Supreme Court ruled that a school board in Washington state discriminated against a football coach when it hired him but disciplined prayers after the game in midfield.
Another case caught the attention of Chilean conservatives: the Supreme Court's 2014 ruling in favor of craft chain Hobby Lobby, allowing private, for-profit companies to be exempt from regulations if their owners have religious objections. Luis Silva, a Republican politician and the most elected member of that year's Constitutional Council, wrote an article in a Chilean legal journal in 2016 about the importance of the Hobby Lobby case for Chile, arguing that it was “a source of useful and tested arguments for the local population”. Debate.”
The proposed constitution guarantees the freedom to “accept, live in accordance with and transmit any religion or belief” and includes “objection to conscience.” It grants families the right to “carry out educational projects, and educational communities have the right to preserve the integrity and identity of their respective projects in accordance with their moral and religious beliefs.”
If passed, Barrera-Rojas said, it would be the “constitution with the greatest protection of parental choice in the world.”
The inclusion of articles protecting the right of parents to decide how to raise their children or “teach them themselves” has confused many Chileans.
“Homeschooling has never been an issue. This is not part of our tradition,” said Verónica Undurraga, a Chilean law professor. “This is a direct impact of US conservative activism. … In Chile there was no such discussion.”
Critics of the proposed constitution have also argued that it would set the country back on abortion rights. In 2017, Chile legalized abortion in cases of rape when the mother's life is in danger or the fetus is not viable. But while the current Constitution protects the “life of what is to be born,” the proposed Constitution would use the phrase “life of what is to be born” — a small change that some argue would give the fetus personality gives.
“If it is approved, we will have to fight all the battles we have had to fight again,” he said Julián Ortiz, constitutional lawyer and advisor to the members of the Socialist Party in the Constitutional Council. “This constitution is like traveling back in time for 20 years.”
Silva, the Republican, pointed out that the proposed constitution guarantees gender balance, “something that has never existed in the history of Chile.” The charter enshrines “balanced access” for men and women to elected candidacies and to the composition of collegiate bodies. It also prohibits wage discrimination between men and women for work of equal value.
Compared to last year's constitutional proposal, Silva said this year's expectations are “much more moderate.” It respects our more than 200 years of constitutional history. This proposal takes this experience into account, but also takes responsibility for the challenges facing Chile today, such as illegal immigration, security, the environment and the participation of women.”
Even if the constitution is not adopted, its ideas will remain in the political debate in Chile, Barrera-Rojas said. The country, he argued, is experiencing a “conservative wave” with “high respect for educational and religious freedoms.”
If the charter is rejected on Sunday, Boric said the country would not hold another constitutional council during his presidency. Its failure would reflect the polarization of Chilean society, said José Miguel Vivanco, senior fellow for human rights at the Council on Foreign Relations and a Chilean lawyer.
“This sense of commonality or common good is very precarious in Chile,” said Vivanco, who rejected both last year’s and this year’s charter proposals. Both assemblies failed to draft a constitution with a broad “umbrella framework,” he said.
“That’s the point of a constitution,” he said. “It's not about defining public policy and protecting your interests … and ensuring that future governments run the country in a straitjacket.”
Many Chileans are disillusioned with both attempts. But others, like Claudio Sandóval, still believe the experiment was worth it.
Sandóval, a 52-year-old in Santiago, plans to vote against the proposed charter – but hopes the country will one day rewrite Pinochet's Magna Carta.
“The effort was worth it,” said Sandóval. “It is a shame that this has not resulted in a new constitution, but we need change and we now have a clearer idea of what that should look like.”
John Bartlett in Santiago, Chile, and Michelle Boorstein in Washington contributed to this report.