December 16, 2023 at 8:00 a.m. EST
“This constitution brings all of 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 protection of “conscientious objection” to the case in which the U.S. Supreme Court sided with a Colorado baker who refused to make a wedding cake for a same-sex couple.
The parallels between the movements in the two countries underscore the wide reach and growing global influence of religious conservatives in the United States — and of the U.S. Supreme Court.
Sunday’s referendum is taking place just one year after Chileans rejected an entirely different constitution — a charter considered one of the world’s most progressive, with sweeping rights for women, Indigenous communities, nature and even animals.
The effort to replace the constitution first written by the authoritarian regime of Gen. Augusto Pinochet had begun as a negotiated solution to massive protests over widespread inequality in the country. A majority of Chileans supported the idea. But last year’s 388-article document — backed by the leftist president, Gabriel Boric, and drafted by an elected assembly dominated by leftists — faced criticism that it was too long, too left-leaning and too radical, especially in its structural changes to the country’s political and judicial system.
So 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 address inequalities, its critics say. Once again, polls suggest Chileans will reject it.
The involvement of U.S. conservative players was not direct, according to Jorge Barrera-Rojas, a Chilean lawyer who served as chief counsel for the constitutional assembly’s Republicans and is also a law professor at the University of Notre Dame.
“We are facing similar debates at the global level,” Barrera-Rojas said. “Debates around the protection of religious freedom and educational freedoms, the right to life and to understand whether we are facing a human being or not, with respect to the unborn.”
Barrera-Rojas said that while the constitutional council did not consult with any U.S. groups or experts, his experiences and mentors at Notre Dame — where Supreme Court Justice Amy Coney Barrett went to law school and was on faculty for nearly two decades — informed his approach to Chile’s constitution. One of the Notre Dame law professors he admires is Nicole Stelle Garnett, who has frequently argued in favor of publicly funded religious charter schools. Barrera also served as a judicial “extern” with Thomas L. Kirsch II, the judge nominated by then-President Donald Trump to fill Barrett’s seat on the U.S. Court of Appeals for the 7th Circuit.
Barrera-Rojas said he is in close touch with — though not a member of — the Alliance Defending Freedom, the Christian conservative organization behind many landmark Supreme Court cases, including this year’s case that won Christian vendors the right to reject gay weddings.
Barrera-Rojas maintains he did not cite specific U.S. cases in his work advising the constitutional council. But speaking to The Washington Post, he mentioned one Supreme Court case that captures, as he put it, a global debate about discrimination on the basis of religion — the case in which the high court ruled that a school board in Washington state discriminated against a football coach when it disciplined him for postgame prayers at midfield.
Another case captured the attention of Chilean conservatives: The 2014 Supreme Court ruling in favor of the craft chain Hobby Lobby, saying private, for-profit companies can be exempt from regulations if their owners have a religious objection. Luis Silva, a Republican politician and the most-voted member of this year’s constitutional council, wrote a 2016 article in a Chilean law review about the Hobby Lobby case’s importance to Chile, arguing it “represents a source for useful and tested arguments for the local debate.”
The proposed constitution guarantees the freedom to “adopt, live in accordance with and transmit the religion or belief” of choice and includes “conscientious objection.” It grants families the right to “institute 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 convictions.”
If approved, Barrera-Rojas said, it would be the “constitution with the greatest protections for parental choice in the world.”
The inclusion of articles protecting parents’ rights to choose how to educate their children or “to teach them for themselves” has baffled many Chileans.
“Home schooling has never been a topic. It’s not part of our tradition,” said Verónica Undurraga, a Chilean law professor. “This is a direct importation from conservative U.S. activism. … In Chile, that discussion didn’t exist.”
Critics of the proposed constitution have argued, too, that it will send the country backward on abortion rights. In 2017, Chile legalized abortion in cases of rape, when the mother’s life is at risk or when the fetus is not viable. But while the current constitution protects the “life of that which is to be born,” the proposed constitution would use language saying the “life of who is to be born” — a small change that some argue attaches personhood to the fetus.
“We are going to have to fight all of the battles we’ve had to fight so far all over again if it gets approved,” said Julián Ortiz, a constitutional lawyer and adviser to members of the Socialist Party in the constitutional council. “This constitution is like going back 20 years.”
Silva, the Republican, pointed out that the proposed constitution guarantees gender balance, “something which doesn’t have a precedent in Chile’s history.” The charter enshrines “balanced access” between men and women for elected candidacies and in the composition of collegiate bodies. It also prohibits pay discrimination between men and women for work of equal value.
Compared with last year’s proposed constitution, Silva said, this year’s “is much more moderate in its expectations. It is respectful of our more than 200 years of constitutional history. This proposal takes this experience into account, but it also takes responsibility for the challenges Chile faces today, such as illegal immigration, security, the environment and the participation of women.”
Even if the constitution fails to pass, Barrera-Rojas said, its ideas will remain in the political debate in Chile. The country, he argued, is living through a “conservative wave” with a “high respect for educational and religious liberties.”
If the charter gets voted down Sunday, Boric has said the country will not hold another constitutional council during his presidency. Its failure would reflect just how polarized Chilean society has become, said José Miguel Vivanco, a senior fellow for human rights at the Council on Foreign Relations and a Chilean lawyer.
“This sense of common ground or public good is very precarious in Chile,” said Vivanco, who opposed last year’s proposed charter as well as this year’s. Both assemblies failed to produce a constitution with a broad “umbrella framework,” he said.
“That is the whole point of a constitution,” he said. “It’s not to define public policy and to secure your interests … and make sure that future governments run the country with a straitjacket.”
Many Chileans feel disillusioned by both attempts. But others, like Claudio Sandóval, still believe the experiment has been worthwhile.
Sandóval, a 52-year-old in Santiago, plans to vote against the proposed charter — but hopes that someday the country will rewrite Pinochet’s Magna Carta.
“It has been worth the effort,” Sandóval said. “It’s a shame we haven’t got a new constitution out of it, but we need change, and we have a clearer idea now of what that should look like.”
John Bartlett in Santiago, Chile, and Michelle Boorstein in Washington contributed to this report.
