Religious Freedom in Pandemic Times in Europe:
A Perspective After One Year
This article is part of our “Law and Religion Under Pressure: A One-Year Pandemic Retrospective” series.
If you’d like to check out other articles in this series, click here.
Coronavirus began to spread across the world a year ago, peaking in most EU countries (as well as the United Kingdom) in April or early May 2020. While the amount of COVID transmissions was quite lower in summer than in spring, from this moment on, its intensity has been variable. Legal continence measures have also changed at the rate of the virus. We can see the results of transmissions and deaths as a whole in some national and EU documents, such as the Updated projections of COVID-19 in the EU and the UK, delivered monthly by the European Centre for Disease Prevention and Control.
In this changing framework, the European Union has tried to foster different measures in almost the whole of the legal and social grounds, such as economic measures, supporting research treatment, diagnostics and vaccines, public health, borders and mobility, and fighting disinformation. It supplies updated information on the web about the Overview of the Commission’s response. Nevertheless, the capacity of the states to act is still very broad.
This work aims to describe the legal measures that European states have approved, with special attention to how these measures have affected the rule of law and fundamental rights. The next step consists of an in-depth analysis of how these measures have affected religious freedom a year since their inception and the worth offered by religious denominations, including their main contributions in this field.
2. Legal Measures Enacted in EU Countries: The Risk of the Rule of Law
The situation in the European Union member states has been rather uncoordinated, even chaotic, in the efforts to avoid the spread of COVID and its effects. Every country has enacted legal and health measures in different ways; these measures have all changed rapidly. The number of COVID related-rules in every country has been staggering. For instance, Spain has enforced six codes that number almost four thousand pages as a whole.
The majority of member states even declared home confinement, at least for some weeks, during the first wave in spring of 2020. So, a Joint European Roadmap towards lifting COVID-19 containment measures was enacted by the European Union institutions on April 15. Since then, the member states have often established curfew or local/regional confinements depending on the health and wellness of their populations.
On the other hand, more than half of the EU’s member states proclaimed a state of emergency in 2021. In some cases, these states of emergency have lasted much longer than an exceptional situation generally should. Countries have been accused of taking advantage of the prolonged state of emergency and enacting important acts in this pandemic time, sidestepping the necessary social and parliamentary debate. Such cases have included, for example, the Spanish Euthanasia Act and the Education Organic Act. In other cases, it has been pointed out that the system of sources of law is being used incorrectly. From this point of view, certain important measures that impact fundamental rights are being enacted by rules unsuitable for this task, such as decrees or other rules of lower level, rather than the proper acts or higher rules. Doubt has been expressed about the legitimacy of these measures. Let us look into some of the warnings that have been issued by a number of European organizations and institutions.
First of all, the European Commission has delivered a communication entitled 2020 Rule of Law Report: The rule of law situation in the European Union, dated on September 30, 2020. The document analyzes the risk for the rule of law that some of the legal measures enacted by the member states in relation to COVID may bring out. The Commission explains that any such restrictions on our rights should be limited to what is necessary and proportionate, limited in time and subject to oversight by national parliaments and courts. This exam carried out by the Commission is consistent with other previous announcements. Let’s recall that in the aforementioned report, the Commission promised it would continue to analyze the proportionality of measures taken by member states in dealing with the pandemic as the situation evolved, and that it would intervene to request the lifting of measures considered disproportionate.
For its part, the Council of Europe has also voiced concern about the force of the rule of law in the Continent in resolutions 2337 and 2338, both adopted on October 13, 2020. Likewise, the Parliamentary Assembly has stressed that democracy, human rights, and rule of law cannot be allowed to become the collateral damage of the pandemic. No public health emergency may be used as a pretext to trample on rights, suppress freedoms, dismantle democracy, or violate the rule of law. As a result, the Assembly calls upon member states of the Council of Europe to ensure that all measures restricting human rights taken in response to a public health emergency are lawful, necessary, proportionate, and non-discriminatory; and that these measures fully respect the principles applicable to states of emergency that have been elaborated by the Venice Commission. In this connection, the Assembly has welcomed the fact that many member states have already brought their states of emergency to an end, or have replaced them with less restrictive legal regimes and measures once the public health situation has allowed. But at the same time, the Assembly has also noted that several states have encountered difficulties in identifying a legal basis for the exceptional measures that they have had to introduce, a basis which would meet requirements of legality and constitutionality. On the other hand, there is a risk of abuse of emergency powers by governments that can lead to undesirable effects, such as silencing opposition or restricting human rights.
In other documents, the Assembly itself has called on member states to guarantee the crisis responses, take measures to respond to the emergency on objective data, and avoid discriminations. This position has been indicated in documents – such as resolution 2339 or resolution 2340 – that focus on the situation of migrants and refugees (both of them on October 13, 2020).
3. Rules About the Virus and its Impact on Religious Freedom
We have seen that some of the rules enacted by European countries have affected both the rule of law and human rights – such as religious freedom. We can state that the vast majority of them have not established the obligation to close places of worship, nor have they prohibited the celebration of religious acts. However, this has not prevented restrictions. This situation could have been due either to the limitations to the general mobility of the people that have prevented them from accessing these places, or to the fact that a certain number of people have been prevented from attending the same place (such as a place of worship).
Religious denominations have had to develop a cooperative attitude with civil authorities, even in the hardest moments of Spring 2020. Most of them cancelled their public worship activities, broadcasting them online instead. They have adapted their rites to the pandemic. Indeed, even bishops in Northern Ireland and Portugal have suspended liturgical celebrations and pastoral activities in January 2021 due to the resurgence of COVID infections. There have, however, also been complaints. These have arisen mainly in the lifting of restrictions as states postponed the readmission of liturgical activities and gatherings in places of worship. Notably, these events were allowed later than other ones. A similar pattern emerged more recently, in which some countries established new restrictions to public worship that other activities do not suffer. For instance, the Scottish Prime Minister decided to close churches in January of 2020. The decision has been strongly criticized by local bishops, who have termed the measure “arbitrary and unfair.” We can take a short overview to check it.
Let us start in Italy. The Prime Minister ruled a decree on April 26 which allowed only fifteen persons in funerals. Worship activities were still seriously limited – at least more than other activities. The Italian Bishops Conference regretted this behavior and was critical of the government. Finally, the Holy See had to mediate between them. As a result of this intercession, the Italian Bishops Conference and the Italian Government reached an agreement about the health and social measures to celebrate a safe collective worship. It was a successful settlement. In fact, it has served as the basis for further later agreements between the government and other religious denominations.
In other countries, such as France, problems reached the courts of justice. The French Government approved some decrees that limited public worship while allowing other kinds of activities. Several claims were submitted to the Conseil d’État to request the overriding of the articles that prohibited gatherings in places of worship. The Conseil found that such measures violated the principles of proportionality and necessity, especially in comparison with the access that was beginning to be allowed to other public places (Ordonnance n. 440366, May 18, 2020). Consequently, they should be overridden for infringing the freedom of worship. However, French authorities went on developing restrictive rules that negatively impacted religious freedom. The authorities decided to limit access to places of worship to thirty people in November 2020. Once again, the Conseil d’État has accepted the claim and has ordered the Government to change the rule contents (Ordonnance n. 446930 et alt., November 29, 2020).
The situation in Belgium parallels that of France. The Conseil d’État in Belgium has ruled on the legality of a decree that banned the public exercise of religious freedom, save in three specific cases, in order to contain the virus. A Jewish community submitted a claim to the Conseil that was answered through the Ordonnace 249.177, on December 8, 2020, which forced the state to change the decree. The restriction had been found to be disproportionate. Complaints continue to go on in Belgium. Recently – April 2021 – bishops have regretted that a new decree of the Government has not allowed for increasing the number of assistants to the religious celebrations of Easter. They consider it to be an unjustified oversight.
Nevertheless, other courts of justice have deployed other arguments and solutions. From this perspective, it is interesting to point out that the German Federal Constitutional Court has ruled that the restrictions to public worship adopted by the states of Hesse and Berlin were legitimate. Of course, the limits to religious freedom were huge but, in a pandemic, this freedom should yield to other constitutional interests, such as a third person’s life or physical integrity. The Court based this assessment mainly on the fact that this extremely serious interference would expire on April 19, 2020. Therefore, it was a temporary limitation of the right to religious freedom. From its point of view, the outcome could pass the “proportionality exam.” For the future, the Court underlined the need of developing rigorous proportionality tests based on the new data available, as the result of the decision could be different.
In other countries, it is possible to verify a change in the criteria for solving this kind of problem. One such example is the United States, which rejected the notion that restrictions on places of worship violated the First Amendment’s guarantee of religious freedom at the beginning of the pandemic. Decisions such as Calvary Chapel Dayton Valley v. Sisolak (on July 24, 2020) or South Bay United Pentecostal Church v. Newsom (on May 29, 2020) demonstrate this way of thinking. Despite this, the same Court has recently considered that these kinds of restrictions cannot be allowed because they cause irreparable harm to religious freedom and liberty (Roman Catholic Diocese of Brooklyn v. Cuomo, on November 25, 2020). The Constitution cannot be put away and forgotten, even in a pandemic. These restrictions, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious freedom.
In other cases, it has been possible to find a kind of tolerance towards religious denominations’ resistance – at least, when it can be considered “moderate.” One such case happened in the Aymler Church of God in Ontario. The government of this state labeled worship as a non-essential service in Spring 2020, as did so many countries. This church began to develop Sunday religious activities in parking lots, with congregants hearing the pastor’s sermon from their cars, windows up, via their radios. Civil authorities threatened the church with fines for holding drive-in services. Finally, the Government bowed to public pressure and let churches gather people in parking lots to develop religious ceremonies under certain guidelines.
4. The Religious Denominations Attitude
Beyond these conflicting cases, religious denominations have shown their discomfort at the lack of consideration for religious freedom. I myself had the opportunity to illustrate their main concerns in another issue of the Canopy Forum, and I refer there. It is suitable to add further remarks shown about this topic more recently. One of them is rooted in the contents of a communication entitled Staying free from COVID-19 during Winter, enacted by the European Commission on December 2, 2020. One of the recommended actions for member states is the following: “In case of ceremonies, consider avoiding large services or using online, TV or radio broadcasts, allocating specific spots for close families (‘household bubbles´) to sit together, and banning of communal singing” as “the quick transmission of the virus and ensuing risk can be increased by cultural traditions such as end of year festivities and gatherings or ceremonies.” While welcoming the efforts for a coordinated and sustainable EU approach against the current pandemic, the Commission of the Bishops’ Conferences of the European Union (COMECE) urges the European institutions to consult with churches and religious communities, especially when considering recommendations that have an impact on religious matters.
Once again the question arises about one of the most important topics about legal restrictions to religious freedom because of COVID: Are the civil authorities entitled to decide by themselves about matters that impact religious freedom? In relation to the content of this work, are the authorities legitimate in weighing the importance or utility of the religious activities for people, or whether their worship services are “essential services”? It may be that these attitudes are difficult to reconcile with the neutrality of the public powers.
On the other hand, religious denominations have gone on to care about vulnerable people – recently, in relation to the distribution of vaccines. In February of 2021, COMECE and Caritas Europa urged the EU institutions to ensure vaccine access for all, promoting a “wide scale vaccination not only for Europe’s own safety and protection, but also for global public health as a public good.” We should recall that, in November 2020, COMECE had stated that elderly people, ill persons, and health workers should come first to get vaccines. The vaccination’s ethical worth has also been highlighted by Protestants, Orthodox Christians, and Anglicans.
From a different point of view, it is interesting to announce that Christian denominations have found in the spread of COVID an opportunity to foster ecumenical ways. As regards minority religious denominations, they continue to be concerned about the increase of hate speech and those blaming them for the creation of COVID and conspiracy behaviors, like the European Jewish Congress has complained again in April 2021.
5. Conclusive Results
The debate around the relationship between the rules that aim to control the coronavirus and religious freedom remains still alive after a year. Religious denominations continue to fit in with ever-changing situations. They go on deploying a cooperative attitude with the civil authorities while delivering moral and ethical messages.
It is necessary to continue to pay attention to the way in which the public authorities deal with religious freedom and religious denominations. There are still inequalities in allowing the development of functions of worship in relation to others that perhaps are not more important than these. The courts have had to rule that these measures have been – as a general rule – discriminatory or disproportionate.
It is also possible to see that civil authorities are still unilaterally presiding over this topic, without regard for the religious denominations. We cannot get used to our governments working like this. It is doubtful whether the public authorities are competent enough to assess whether religious activities are essential or not. In any case, governments should be aware that they are not competent to deal with every religious question. The higher the reciprocal cooperation, the better the outcome for everybody.
Finally, we cannot forget another question of a more general nature. It is related to some actions of the states that have broken basic principles of the rule of law. These actions have drawn the attention of international organizations, at least in Europe. It has been found that states have taken advantage of the pandemic to establish overextended states of alarm. They have also enacted legislation about sensitive matters – during the aforementioned states of alarm – that had once required intense public debates. They have also restricted fundamental rights through norms that did not have sufficient status. This is an unsatisfactory situation that should end. ♦
Alejandro González-Varas is a Professor of Public Law at the University of Zaragoza (Spain) School of Law. He received his PhD in Law at the University of Vigo (Spain) and Bolonia (Italy). He has been Fellow in the Real Colegio de España in Bolonia, founded in 1369. He is Academic in the Spanish Royal Academy of Jurisprudence and Legislation.
González-Varas, Alejandro. “Religious Freedom in Pandemic Times in Europe: A Perspective After One Year.” Canopy Forum, May 4, 2021. https://canopyforum.org/2021/05/05/religious-freedom-in-pandemic-times-in-europe-a-perspective-after-one-year/