Religious Freedom v. Public Health Debate
The devastation wrought by the COVID-19 pandemic has heightened concerns among human rights advocates that governments will use their police powers to suspend or severely curb fundamental rights in the name of public health, welfare, and safety. One of these rights is the freedom of religion or belief, which interacts with — and is sometimes dependent upon — other fundamental rights such as expression, assembly, association, and the right to be free from discrimination for its full enjoyment. As more governments issue shelter-in-place (or lockdown) orders limiting freedom of movement, communities are faced with new challenges that compromise their right to freely manifest their beliefs in the form of practices, rituals, worship, and public service.
Public emergency restrictions that require “social distancing” — and, in some cases, quarantines — make it extremely difficult if not impossible to engage in in-person collective worship or observance. These challenges are particularly tangible during religious holidays, such as Passover, Easter, and Ramadan, or events marking the rites and rituals of passage, such as birth or death. But this framing vastly underestimates the pervasive and continuing relevance of faith in people’s everyday lives. For millions of people around the world — particularly vulnerable groups such as the elderly, the sick, the poor, refugees/migrants, and ethnic and religious minorities — faith-based institutions and communities provide both spiritual and material support. In communities where religious groups fill social services gaps resulting from the absence of governmental institutions, lockdown orders restricting access to essential services may mean the difference between life or death. 1 Indeed, the Centers for Disease Control has issued specific recommendations for how leaders in community and faith-based organizations (CFBOs) should respond to the COVID-19 pandemic. This guidance acknowledges the important role that CFBOs play in providing essential (here: material) services to vulnerable groups.
So what exactly does the law allow — or prohibit — when religious liberty rights clash with public health, welfare, and safety measures during times of emergency?
Both international and U.S. law provide a normative framework for whether, and how, governments can limit the right to religious freedom. Article 18 of the International Covenant on Civil and Political Rights (ICCPR), the main international human rights treaty to which the overwhelming majority of States (including the United States) are party, recognizes the right to freedom of thought, conscience, and religion. 2While Article 18 specifically refers to the “right to freedom of thought, conscience and religion,” the shorthand used by the United Nations human rights mechanisms is the “right to religion or belief.” This right is distinguished from the right to have, hold, or change one’s opinions. Although both rights are absolutely protected, the right to thought, conscience, and religion generally involves an epistemic inquiry or struggle to understand the individual’s place in the universe based on faith in a transcendent authority (or its rejection). This right includes “freedom to adopt a religion or belief of [one’s] choice.” Individuals have a right to manifest their belief in worship or observance “either individually or in community with others, and in public or private” (emphasis added).3Manifestation of religion or belief also includes the “liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.” ICCPR, art. 18(4). The right to have, not have, or change one’s religion or belief4In international law, “belief” encompasses the right to have atheistic, agnostic, or non-religious beliefs (including the right to be apathetic toward religion altogether). In this regard, Article 18 is fundamentally different from the Free Exercise Clause of the First Amendment of the U.S. Constitution, which only protects conduct and practice motivated by religious belief. is absolutely protected under Article 18(2) and can never be interfered with for any reason.5In its General Comment No. 22 interpreting Article 18 of the ICCPR, the UN Human Rights Committee notes that “Article 18.2 bars coercion that would impair the right to have or adopt a religion or belief, including the use of threat of physical force or penal sanctions to compel believers or non-believers to adhere to their religious beliefs and congregations, to recant their religion or belief or to convert.” The committee has also emphasized that “[p]olicies or practices having the intention or effect of compelling believers or non-believers to convert, for example, by restricting access to education, medical care, employment” or other rights “are similarly inconsistent with article 18.2.” U.N. Human Rights Committee, General Comment No. 22: Article 18: Freedom of Thought, Conscience or Religion, ¶ 5 U.N. Doc. CCPR/C/21/Rev.1/Add.4 (July 30, 1993). Examples of interferences with conscience include targeted and coercive measures (such as reeducation camps or anti-conversion laws) aimed at forcing individuals to adopt or change their religious beliefs or act against their conscience.
Under international law, member states may temporarily suspend most rights enumerated in the ICCPR “in times of public emergency which threaten the life of the nation.”6Other non-derogable rights in the ICCPR include the right to life (Art. 6) and the right to be free from torture (Art. 7). Article 4 of the ICCPR states: In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. Member states wishing to invoke derogations must officially announce them, use them only “to the extent strictly required by the exigencies of the situation,” and apply them in a non-discriminatory manner. While several of the most fundamental rights — including freedom of expression and assembly — may be suspended during times of emergency, the normative framework for the right to religion or belief is non-derogable and can never be abrogated.
This does not mean, however, that the right to religion or belief is more essential or important than other rights. Indeed, the right to manifest one’s religious beliefs is a qualified right subject to the limitations listed in Article 18(3). These limitations must be prescribed by law, and they must be necessary to protect public safety, order, health, or the fundamental rights and freedoms of others (emphases added). States must subject any limitations on religious practice to a strict proportionality test to ensure that the restrictions are not vague or overbroad, and that they remain an exception to the general rule allowing religious freedom. Moreover, Article 2 of the ICCPR (the treaty’s main nondiscrimination provision) requires governments to guarantee that all individuals will enjoy the rights and protections enumerated in the covenant “without distinction of any kind, such as race, colour, sex, language, religion … or other status” (emphasis added).7ICCPR, art. 2(1).
Discriminatorily singling out or targeting individuals on account of their religious (or nonreligious) identity in an effort to limit the exercise of their rights, including their right to religious freedom, is never justified — public emergency or not.
Governmental policies imposing stay-at-home orders and shuttering businesses (except for ones considered “essential”) are generally seen as necessary and proportionate in light of the sharp rise in coronavirus infections worldwide. These orders are also widely viewed as lawful because they satisfy due process requirements and closely track guidelines issued by public health experts who warn that in lieu of effective treatment remedies, every effort must be made to observe “social distancing.”8Social distancing recommendations by the Centers for Disease Control, for example, require individuals to keep a distance of at least six feet from each other. They also discourage people from “large and small gatherings in public and private spaces.” In addition to slowing down the rate of transmission, social distancing is critical to preventing system-wide collapse of national and local health care systems.
But some faith community leaders have questioned both the necessity and legality of stay-at-home orders. In the United States, the media has reported on several churches that have defied local or state orders and held gatherings and services. In response, local authorities have sometimes forcibly shuttered churches and fined pastors and others for refusing to comply with lockdown orders. In one instance, police arrested a pastor from a church in Florida who openly flouted the orders. This has, in turn, caused some pastors and their supporters to file (or threaten) lawsuits against government officials for violations of their religious liberty rights pursuant to the First Amendment of the U.S. Constitution, state constitutions, and federal and state laws such as Religious Freedom Restoration Acts.9According to one of the plaintiffs bringing suit, “The First Amendment guarantees our God-given unalienable rights to worship and to peaceably assemble. Neither of these rights are contingent upon our health status.”Some of these legal actions question the underlying notion that religious exercise, whether in spiritual or material form, is not an “essential service.” On April 11, for example, a federal district court in Kentucky issued a temporary restraining order against local authorities for allegedly enforcing lockdown orders in a way that unlawfully targeted religious exercise. The Trump Administration has intervened in support of several churches who have challenged enforcement measures against their parishioners as disproportionately severe and unlawful.
While the substance of the First Amendment is different from Article 18 of the ICCPR, most of these legal challenges will likely fail because authorities may lawfully curtail or even temporarily suspend certain free exercise rights — including the right to gather in person for worship and observance — if there is a compelling governmental interest to do so.10The “compelling interest” test is not too dissimilar to the necessary-proportional balancing test required by Article 18(3) of the ICCPR. Notwithstanding local and state governments’ compelling interest to enforce stay-at-home orders for public health and safety reasons, courts may strike down orders that are targeted, discriminatory, or motivated by animus or hostility.
Conditions resulting from the COVID-19 pandemic generally satisfy this test, even if some courts rule that particular lockdown orders are not narrowly tailored enough to advance the government’s compelling interest (and must, therefore, allow reasonable accommodations to religious adherents exercising their rights). Yet according to one study, at least sixteen states have provisions in their stay-at-home orders that exempt religious activities and/or houses of worship from some (or most) of the public health measures. Some of these provisions allow houses of worship to continue operations, including in-person services.11Most of these provisions either consider religious services to be an “essential activity,” or houses of worship to qualify as “essential businesses.” See, e.g., the Texas stay-at home order, https://gov.texas.gov/uploads/files/press/EO-GA-14_Statewide_Essential_Service_and_Activity_COVID-19_IMAGE_03-31-2020.pdf, and the Florida stay-at-home order: https://www.flgov.com/wp-content/uploads/orders/2020/EO_20-91.pdf. Some of these exemptions suggest that persons gathering for religious services are not mandated to observe social distancing rules.Many U.S. legal experts, like John Inazu, believe that such exemptions are not constitutionally required.
Notwithstanding these reports, the vast majority of faith communities have voluntarily adapted to the changed circumstances. Most have shuttered their houses of worship or dramatically scaled down public activities, finding alternative ways to meet the spiritual (and other) needs of their members without jeopardizing the wellbeing of society at large. Additionally, many faith leaders have actively encouraged their parishioners to cooperate with local authorities and fully comply with stay-at-home orders.
Technology, organizational innovation, and doctrinal flexibility all undoubtedly play a role in facilitating religious adaptation during times of adversity. But so do resilience and resistance, mixed with a general skepticism of governmental rationales justifying the exercise of expansive powers at the expense of religious liberty. According to two religious liberty advocates, this skepticism is often fueled by “genuine challenges and threats from the secularization of our culture and the hostility toward religion often expressed by political elites.” If states begin to relax shelter-in-place rules for gyms and athletic clubs, but not religious institutions, the relationship between Church and State will likely witness further tension and conflict.
Regardless of whether one agrees with the substance of religious challenges to lockdown orders or the proper balance that should be struck between public health and religious freedom, it is difficult to reject the notion that faith communities are often at the forefront of resistance against state orthodoxy. Though such efforts were often motivated by a desire to secure religious freedom rights for their own group members, they usually had a multiplier effect that ultimately benefited individual rights across and outside faith communities (for instance, consider the crucial role that Jehovah’s Witnesses have played in the development of religious freedom jurisprudence12One of the most celebrated religious freedom (and free speech) opinions by the U.S. Supreme Court concerns a Jehovah’s Witness’s challenge to the recitation of the Pledge of Allegiance in the case of West Virginia State Board of Education v. Barnette. The majority opinion, written by Justice Robert H. Jackson, contains one of the most cited sentences written by any Supreme Court justice: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.” 319 U.S. 624, 642 (1943). and practice, both in the United States and worldwide).
Crisis often intensifies already existing fissures across political, racial, socioeconomic, and religious fault lines. But it also deceptively magnifies fault lines by pitting citizens against citizens — and rights against rights — in seemingly zero-sum fashion. The COVID-19 pandemic is no exception. Yet religious freedom and health are both essential human rights that governments must guarantee. Faith leaders and community members undoubtedly play a critical role to ensure that their religious exercise does not put the health and safety of others in jeopardy. But those who are not “of faith” also have a responsibility to ensure that religious freedom is not sacrificed at the altar of unchecked state police power. And all of us, religious or not, have a civil and moral responsibility to act in a manner that does not negatively impact the rights of others.
Perhaps a recognition that religious liberty and public health are essential, interrelated, and interdependent can help shift the focus of debate away from what we have a right to do under the law, to what we should do as fellow citizens. Because if there is one thing this pandemic has taught us, it is that individual actions have collective consequences notwithstanding what the law allows or prohibits.
Faraz Sanei is a Visiting Instructor of Clinical Law at the Benjamin N. Cardozo School of Law (Yeshiva University). Prior to his academic appointment, he served as a legal advisor to Dr. Ahmed Shaheed in his capacity as the United Nations Special Rapporteur on freedom of religion or belief.
Sanei, Faraz. “Re-centering the Religious Freedom v. Public Health Debate.” Canopy Forum, April 29, 2020. https://canopyforum.org/2020/04/29/recentering-the-religious-freedom-v-public-health-debate/