The Implications of the COVID-19 Pandemic on Religious Exercise: Preliminary Remarks

Abstract

Since 2020, the spread of COVID-19 has had an overwhelming impact not only on our personal lives, but also on domestic regulatory frameworks. Influential academics have strongly underlined that, in times of deep crisis, such as the current global health crisis, the long-term workability of legal systems is put to a severe test. In this period, in fact, the protection of health has been given priority, as a precondition that is orientating many current legal choices. Such an unprecedented health emergency has also raised a serious challenge in terms of fundamental rights and liberties. Several basic rights that normally enjoy robust protection under constitutional, supranational, and international guarantees, have experienced a devastating “suspension” for the sake of public health and safety, thus giving rise to a vigorous debate concerning whether and to what extent the pandemic emergency justifies limitations on fundamental rights. The present paper introduces the Special Issue on “The crisis of the religious freedom during the age of COVID-19 pandemic”. Taking as a starting point the valuable contributions of the participants in the Special Issue, it explores analogous and distinctive implications of the COVID-19 pandemic in different legal contexts and underlines the relevance of cooperation between religious and public actors to face a global health crisis.

1. Introduction

Since 2020, the spread of COVID-19 has had devastating consequences not only for our daily lives but also on the European and U.S. legal systems.1

There is little doubt that there have been other deadly and widespread outbreaks in recent history, such as the 1918–1919 Spanish flu and, more recently, the H1N1 infection. However, the COVID-19 pandemic has been qualified as unprecedented due to its global character, high death rate, high and fast rate of infection, the lack of effective preventive strategies and scientific uncertainty, its devastating impact on health, political and economic systems and its social implications (as it highlighted inequalities and vulnerabilities) so as to give rise to a global crisis, not only in terms of public health.

Such an unprecedented health crisis has negatively affected the enjoyment of fundamental rights. Among them, the exercise of religious freedom has suffered unparalleled restrictions. Legal systems have offered distinctive legal responses to the pandemic emergency, ranging from a complete suspension of the collective exercise of religious worship, to a more cautious accommodation of religious gatherings.2 The aim of the present Special Issue is to offer a comparative survey of restrictive measures adopted in different juridical contexts and affecting the exercise of religious freedom to different degrees. The Special Issue collects contributions of experts from widely differing disciplinary areas and covering many geographical areas, including some European countries, the United States, Malawi, Peru, and India, and it offers the opportunity to provide some preliminary (but not exhaustive) comparative reflections.

This Special Issue aims to show that the interaction between religious law and secular law is a complex matter, and it will supplement the existing literature emphasizing the transversal vocation of the study of the management of religious diversity and its operative scope. Several law journals have already produced Special Issues dealing with religion and COVID-19, and have suggested different keys to understanding the current tension between public health and religious exercise, emphasizing the urgency and complexity of the new constitutional conundrum that the clash of competing values has given rise to. The aim of this Special Issue is not to provide a directory of various legal responses to the COVID-19 health crisis. Its aim is to go beyond legal analysis only in terms of the polarization of conflicts between state law and religious commitments, which would be incomplete: for this reason, the Special Issue integrates various perspectives with a view to offering a serious investigation into detailed sociological, historical, political, and religious studies narratives and to fully exploring the pathway of dialogue and cooperation between faith communities and public actors, as they both, together with society as a whole, have much to gain from the building of a synergic network of resources and actions with a view to a person-centered approach.

A key question concerns whether and to what degree fundamental rights can be subject to restrictions due to an unprecedented health crisis. Western scholars are aware that no right can become absolute: specifically, the Italian Constitutional Court held that no right can become a “tyrant” and over-expand to the detriment of other competing rights.3 However, an analysis of proportionality has become extremely controversial during the pandemic, as ordinary standards of assessment seem unsuitable to balance competing values. There is little doubt that, during an unparalleled pandemic crisis, public health is given priority over other fundamental rights, as, in the end, life becomes the “supreme”4 interest which has to be guaranteed. Following this perspective, a hierarchy of fundamental rights has arisen, where only those rights which are considered “essential” (in a biological sense) are given prevalence.5

2. The Debate over the “Essential” Nature of Religious Freedom during the Pandemic

However, in such a dystopic situation the role of religious freedom has become even more controversial. As is well known, the “exceptionalism”6 of religion and its protection is a lively battlefield in our Western societies, where various (political and academic) voices claim for the need to put religious and other secular interests on an equal level. The pandemic has emphasized underlying tensions, revitalizing the never-ending debate about whether religious activities should enjoy special treatment and be granted exemptions to general rules in democratic post-secular societies.7

During the first wave of the pandemic, various legal systems provided different solutions: in some cases religion was qualified as an essential service and efforts were made to accommodate religious exercise; in other cases religion was considered a good people could do without, as religious buildings have been considered as places where the infection easily spreads, like every public gathering place.8

However, academics have underlined that in different legal contexts a juridical language aimed at neutralizing the specific role of religion (i.e., “religious establishments”)9 has been used, and the undue placement of religious gatherings on an equal footing with analogous secular activities, using as the only sterile standard of analysis a comparable level of risk.10 Although religious autonomy cannot be immunized from any balancing process with other competing values, legal responses have given rise to concerns, as a religiously neutral state is not equipped to define which aspects of religious exercise can be qualified as essential without consulting faith communities.11

There is little doubt that restrictive measures have not been enacted with the intent to target religion and that they are expected to have a temporary nature.12 However, religious assemblies have often been considered as superspreader events, which require careful monitoring, giving rise to concerns about a risk of intruding into strictly church matters.13 Academics have warned about the danger that the authoritarian overtone generated by the pandemic crisis could be worrying in terms of fundamental liberties in the long term.14

3. The Fragile Balance between Mainstream Religions and Religious Minorities

The pandemic has not only had a negative impact on the collective dimension of freedom of religion, but has also exacerbated an already fragile balance between mainstream religions and religious minorities. Some papers in this issue have focused on analyzing whether and to what extent the COVID-19 emergency has affected the status of religious minorities.15 In Western legal systems, the restrictive measures of the collective exercise of religious freedom have affected various religious groups to different degrees, which were previously disadvantaged by the pre-existing regulatory framework, because public authorities were initially more inclined to meet the needs of mainstream religions. Although restrictive measures have not been religiously preferential, the practices and rites of minorities have suffered a disparate impact. In the Western landscape, minorities have not been able to take advantage of alternative means of worship/practice provided by the use of digital technology (i.e., religious services online and in-streaming) as they are in contrast with their beliefs (i.e., the Amish approach to electricity is delicate) or because alternative measures were not made equally available to all religious groups (e.g., mainstream religions have been more facilitated in access to mass media in some countries for economic, political or legal reasons).16 Thus, in some cases, apparently neutral restrictive measures have had a disparate impact on idiosyncratic religious practices, emphasizing their status of marginalization.

In addition, it cannot be underestimated that in Europe the health crisis has given rise to increases in anti-Semitic and Islamophobic reactions that have put social cohesion at risk. On the other side of the Atlantic, in the Unites States, it has underlined a growing politicization of religion, namely, an exasperation of the political polarization between a “conservative” vision of religious freedom and the rights of the most vulnerable subjects. The COVID-19 emergency was at first minimized by Trump’s administration, emphasizing a divergence between federal policies aimed at giving prevalence to mainstream religions’ narratives and state powers, charged with the effective task of reducing the spread of the virus.17 Such a clash between the federal perspective and state policies has given rise to fierce litigation, which has emphasized a complex interplay between state governors, the federal courts and the U.S. Department of Justice.18 Some of the religious communities’ challenges of state executive orders imposing restrictive measures on religious exercise have culminated in interventions of the U.S. Supreme Court. At first, some judgements underlined the fragile balance between the two wings of a deeply ideologically divided court, where the Chief Justice has a swing vote.19 However, after the appointment of Justice Amy Bennett, the Court’s rulings have witnessed the marked predominance of the conservative wing and of its conservative understanding of religious freedom, to the detriment of other vulnerable classes.20

In some legal scenarios (e.g., India, Iraq, Pakistan, Uganda) where minorities are already victims of disparate treatment linked to specific social, historical, economic and political contexts, and where the religious factor is the subject of increasing politicization, the pandemic emergency has further deteriorated the dynamics between majorities and minorities, as well as infra-confessional divisions, and has been used to justify forms of repression, persecution and discrimination against traditionally marginalized groups, some of which have also been accused of contributing to the spread of COVID-19. Recent surveys21 have given research evidence that COVID-19 has generated ostracizing, growing segregation and the repression of religious minorities, which have been blamed to be superspreaders of the virus and prevented from accessing health services, and it has given rise to a “new dimension of hate speech.”22 The “minorities within minorities”23 have therefore been particularly disadvantaged and gender issues have been emphasized.24

4. The Complex Interplay between the Three Branches of the Government during the Pandemic

There is little doubt that different countries have had different legal reactions to the pandemic: in some legal contexts suspensions of religious gatherings have been enforced; in others, different degrees of accommodation of religious exercise have been provided. In legal environments where powers are shared at a federal and regional level a higher level of complexity and fragmentation of provisions has been reached.25

However, it cannot be underestimated that many decisions have been left in the hands of the executive powers, which have enjoyed an uncontrolled “aggrandizement”26 of their jurisdiction, and have had to offer quick responses, due to the urgency and the severity of the situation. Such responses have often been not only defective on procedural and substantial grounds, but also blurred, and have generated public skepticism and a growing lack of public trust in the government.27 Some commentators argue that the lack of a legislative intervention has witnessed a more general crisis of the rule of law.28 Actually, whether and to what different extent different legal frameworks are equipped with emergency rules, and whether such rules are incorporated into the constitutional text or in specific statutes has had undeniable implications on the quality of legal responses.29

Other commentators wonder whether national models of church–state relationships have also influenced the promptness of national responses to claims for religious accommodation during the pandemic.30 There is little doubt that specific understandings of religious freedom might have affected some public policies. As an example, certain provisions find a clear justification in legal contexts where the protection of religious freedom is strictly intertwined with public order (i.e., in France, the appointment of the “managers of religious establishments”).31 However, multiple factors have influenced the severity of legal responses and demonstrated the need for their constant follow-up, in the pursuit of less restrictive alternatives for other fundamental rights: the phase of the pandemic, the epidemiological data, the level of scientific knowledge, the workability of public health systems.

In any event, the vitality of a democratic system, where a fair level of religious accommodation is granted to all religious communities, has been demonstrated by different degrees of solicitude toward spiritual needs of individuals in the judicial arena.

The courts have become the main actors of the resolution of conflicts, and have been deeply involved in a role of monitoring governments’ policies and safeguarding the rule of law. They have been deeply engaged with a role of reconciling competing interests. However, they have also been paradoxically entangled in sharp debates on which the most appropriate secular comparator was: stores, theatres or casinos.32 Although during the first wave of the pandemic they were more inclined to adopt an attitude of deference toward executive policies, in the long term they have focused on a stricter analysis of proportionality and the necessity of restrictive measures, taking into account their duration, the severity of the burden upon religious exercise, their non-discriminatory nature, the possibility of less restrictive alternatives.33 Although the temporary nature of such restrictive measures can justify interference in matters of the church province, a disparate treatment of religious gatherings compared to secular activities requires an objective and reasonable justification.34

Several international and supra-national provisions, and their interpretation before the courts, draw a complex architecture relating to the protection of religious freedom, even in its collective dimension, and its limits, which has to be taken into account in the balancing process between competing values.35 However, there is little doubt that the principle of precaution has played a key role in the delicate equilibrium during the pandemic.36

In the long run, it will be easier to understand whether this enormous effort has given the judiciary the opportunity to revisit standards of review, and whether their adaptation to the pandemic situation can give rise to serious concern about their implications in the near future.37

5. Reactions of Religious Communities to the Restrictive Measures

The reactions of religious groups were different too during the successive phases of the pandemic. During the first wave of the pandemic, religious communities encouraged their faithful to comply with general provisions, even though there were some exceptions.38 Some Churches enforced self-imposed precautionary measures for their faithful, anticipating state provisions.39 They demonstrated religious creativity adapting their rituals and practices to the exceptional circumstances of the pandemic.40

However, in the long run, there has been a growing judicial mobilization of religious communities, most of all where restrictive measures have had negative implications on the celebration of religious festivities that are deeply rooted in religious traditions.41

In the long run, such an unprecedented health crisis has offered an opportunity for a legal analysis of the workability of pluralist and democratic systems,42 and has urged states to develop a constructive dialogue with religious groups in different legal contexts, regardless of their institutional models of church–state relationships, emphasizing the essential need for cooperation and for more solicitude toward religious communities’ voices.43

6. Moving toward the Implementation of a Constructive Dialogue with Faith Communities?

The pandemic has emphasized the need to revisit the role of religious organizations within the network of social actors which are the driving force of modern democracies and to open new channels of communication between public and religious actors.44 The health crisis has developed an increasing public awareness about the need to strengthen strategic partnerships between the public sector and religious communities, in order to improve public health and to reach the double purpose of safeguarding salus corporum without underestimating salus animarum.45 A virtual cooperation can have many variations: in some legal scenarios religious measures have been negotiated between public and religious actors.46 However, the opportunity to access public funding on a par with secular corporations, which has been granted in separationist contexts to religious organizations, can also be considered a kind of indirect cooperation.47 Such access witnesses the growing awareness of the vital social role religious communities have played during the pandemic.

As is well known, religious communities have been traditionally deeply engaged with the delivery of health care, welfare and education. During the pandemic, the ability of religious leaders to provide guidance and support to their faithful as well as the involvement of religious communities in providing primary goods and services to vulnerable classes cannot be underestimated. In many cases religious communities provided guidelines to their faithful to reduce the spread the virus, anticipating public policies; and also provided alternative ways of worshipping, making their tenets flexible enough to prevent their communities facing conflicts of loyalty. Provided that the roll-out and mass distribution of vaccines can be a game-changer in stopping the spread of COVID-19 and reaching herd immunity, religious communities can play a key role during the current immunization challenge.48 Actually, certain religious leaders are giving a robust contribution in combating vaccination reluctance; in addition, religious organizations are hosting immunization clinics.49 However, the achievement of this outcome implies the opening of clear communication channels between the government and religious communities.50 The lesson we have learned is that the possibility to implement networks between religious and public actors can become a key factor crucial to develop a strategic synergy, where all social parties contribute to combating the virus in the pursuit of a shared goal: the well-being of the whole global community and the welfare of the individual.51

7. Structure of the Special Issue

This Special Issue gathers contributions by experts from distinctive areas of research and different geographical areas. Three papers focus on the U.S. context, three papers analyze several European countries’ perspectives, another three papers investigate distinctive extra-European scenarios and a final paper provides a comparative overview.

Jeffrey Haynes’s paper offers a detailed investigation into the strict interrelationship between politics and religion in the U.S. context during the COVID-19 health crisis, how the conservative understanding of religious freedom under Trump’s administration affected evangelical Christians’ fierce judicial mobilization against restrictive state measures aimed at limiting the spread of the COVID-19 pandemic.

Paul Baumgardner’s essay analyzes the abovementioned conservative turn with a view of the Supreme Court’s case law, which is increasingly moving toward a re-visitation of traditional standards of review. According to the author, the “Pandemic Court” has “re-written” religious freedom, thus affecting the rights of vulnerable third parties in the areas of education, health and employment areas.

Mark Chopko’s work explores another highly controversial issue: the possibility for religious organizations to have access to economic relief from the federal government during the COVID-19 pandemic, on equal footing with other secular entities, to mitigate the devastating economic implication of the health restrictive measures. Following the Supreme Court’s most recent judicial trend, according to which religious organizations should not undergo disparate treatment compared to their secular counterparts because of their religious identity, the federal government has opted for equal treatment policies during the pandemic.

Along with the papers focusing on European perspectives, Anne Fornerod’s paper examines how France has managed the COVID-19 health crisis, imposing severe restrictions on the exercise of religious freedom. Her paper is centered on the analysis of the Council of State’s case law relating to religious exercise during the pandemic. Three different rulings underline the importance of religious freedom as a fundamental right, but also demonstrate that such a freedom can be subject to proportionate restrictions in order to reconcile it with other competing public interests.

Proportionality is the key word for analyzing Greek case law. George Androutsopoulos’s paper examines the Greek legal responses to a pressing social need and its efforts to avoid deviations from the constitutional order. He underlines that case law has reviewed health measures by scrutinizing their coherence with the principle of proportionality, taking into serious consideration their temporary and short-term nature, and the need for their periodical revision, depending on changes in the epidemiological data and scientific evidence. The author underlines the cooperative efforts of the Orthodox Church to reduce the spread of the infection.

After giving a general overview, Mark Hill’s essay is centered on the analysis of UK government’s responses to COVID-19. He provides a detailed analysis of UK health measures, their direct and indirect implications on religious freedom and on other fundamental rights, the key role of the courts in scrutinizing challenges against government provisions with a view to the coherence with ECtHR’s review standards. The author emphasizes the role played by religious communities in managing the pandemic through issuing guidelines to their faithful.

Susana Mosquera Monelos’s paper examines the restrictions religious freedom has suffered during the pandemic, raising concerns about whether its placement within non-essential activities affected the effective reasonableness of such restrictions. After an overview of the protection of religious freedom at an international level, her analysis focuses on the distinctive nature of the Latin American context and the evolution of church–state relationships in Peru. The crucial issue which the author tries to face concerns whether and to what extent distinctive patterns of church–state relationships have affected the legal tools states have made use of to reconcile the management of the health crisis with the protection of fundamental rights such as religious freedom.

Nehal Ahmad’s paper is centered on an in-depth political and legal analysis of the multicultural Indian context. After an exhaustive survey of the notion of minority, the evolution of minorities’ protection in different historical periods and geographical areas, and the protection they have been granted at an international level, Ahmad focuses on the status of religious minorities in India, the complex dynamics between mainstream religions and religious minorities, the historical background of Muslim communities, the clash between the constitutional rights accorded to these minorities and the enforcement of discriminatory laws. The frail position of minorities has been compromised during the health crisis, which increased prejudice, repression and discrimination against such minorities.

James Tengatenga, Susan T. Duley and Cecil Tengatenga’s paper develops the tension between human rights and restrictive measures due to the need to limit the spread of the COVID-19 pandemic in the particular context of Malawi. Through a multi-disciplinary perspective, the authors explain the uniqueness of the Malawian government’s response to the health crisis, due to the intersection of several factors: religion as a factor of social continuity and the evolution of its role in the public discourse, the inter-relationship between economic freedom and religious freedom, and the historical tensions between political, civil, social and economic rights in the specific Malawian geographical landscape.

The issue is enriched by a comparative chapter by Javier Martínez-Torron, which scrupulously outlines the coordinates of pandemic law, underlining the common aspects of the reactions of the various legal systems to the health emergency, the legal justifications for the restrictions, the reactions of religious communities, and the key role of the principles of equality and state neutrality. The author solicits a new understanding of the health crisis, as an opportunity to investigate future trajectories for religious freedom, aimed at developing new forms of cooperation between public and religious actors.

8. Conclusions

During the pandemic, law makers and courts have had to face a new legal dilemma: is religious freedom an essential right?52 In a dystopic context where the protection of public health has been recognized as the “legal precondition”53 of every fundamental liberty, a temporary hierarchy of rights has been established, and religious exercise in its collective dimension has often been assessed through the sterile lens of the comparable threshold of risk. Restrictive policies have often underestimated the spiritual value of religious rituals and practices and risked intruding into church matters.54 Thus, their proportionality has to be strictly connected to their reasonableness, necessity, and non-discriminatory nature.55 In the long run, the path of conflict risks emphasizing the polarization and radicalization of religion and undermining social cohesion.

However, the pandemic has also highlighted the need to develop new channels of dialogue between public and religious actors in the pursuit of shared goals.56 The reconciliation of competing sets of values can promote the implementation of new ways of “living together,”57 where every social actor offers his support to build a more inclusive society.58