Direito e religião: uma análise do âmbito de incidência das liberdades de pensamento, de expressão e da liberdade religiosa

Abstract

The present work aims to apprize the relation between Law, with regard to freedoms. The purpose is to analyze how the Brazilian Law deals with the problem of the use of religious elements in a blasphemous context, asking about the scope of the incidence of expressive activity when confronted by the pretension to defend the idea of sacredness that these same elements represent within a religious context. From freedom of thought are derived others around which the discussion will revolve, focusing on freedom of speech and freedom of religion. In the light of the doctrine of Bodo Pieroth and Bernhard Schlink will be analyzed how the violations of these freedoms can be configured, using for that purpose the criterion of control in three phases (Drei-Schritt-Prüfung). During the development of the analysis concrete examples will be identified in which the expressive blasphemous activity has generated effects in the judicial sphere that will serve as the basis for the analysis of freedoms in general. In this context, we seek to foresee, on the basis of doctrinal and jurisprudential understandings, a solution to the clash - increasingly frequent - between the numerous forms of expressive activity and religious offense, in order to prioritize the plurality of ideas to the detriment of fence to sacrilege.