Gordon Lindhurst

In granting injunctive relief against fixed limits on the number of attendees allowed at religious services due to Covid, the US Supreme Court (SCOTUS) in Roman Catholic Diocese of Brooklyn, New York v Governor of New York arguably aligned American thinking with mainstream European jurisprudence.

The German Supreme Constitutional Court (BVerfG) had much earlier (29th April - 1 BvQ 44/20) held likewise, after previously upholding a prohibition in the very early stages of the pandemic (10th April - 1 BvQ 28/20). Interim measures striking down coronavirus regulations providing for a blanket prohibition on religious services were granted by the BVerfG on 29th April under Article 4 of the German Basic Law, which guarantees freedom of faith, conscience and the undisturbed practice of religion.

Both the SCOTUS majority decision and the BVerfG unanimous decision applied undisputed facts within the matrix of the generally accepted expert health advice and approach to Coronavirus. Neither case was about a challenge to the generally accepted approach to coronavirus. Both cases were primarily about the blanket prohibition of religious meetings and arbitrary restriction to fixed numbers of attendees when allowed.

In the SCOTUS case, the applicants’ places of worship had applied all public health guidance, additional precautionary measures, and operated at 25 to 33 per cent of usual meeting hall capacity for months without a single Covid outbreak. Notwithstanding, fixed limits on numbers of attendees had been placed on them regardless of the size of meeting place, in contrast to “essential” businesses which had no limit on numbers admitted.

Prima facie, the majority assessment that “It is hard to believe that admitting more than 10 people to a 1,000–seat church or 400–seat synagogue would create a more serious health risk than the many other activities that the State allows” is difficult to disagree with. A quick glance over the border to Ontario in Canada, with its 30 per cent of normal numbers capacity allowance for religious services, far less the German experience following reopening of worship places in the wake of the BVerfG decision, would suffice.

In the BVerfG case the applicant was (in legal terms) a registered association which sought interim relief against the general prohibition preventing Friday prayers at its mosque during May for Ramadan. It offered adherence otherwise to the coronavirus regulations (social distancing, proportionate reduction in numbers of attendees, disinfection measures, etc.).

The lower court, Oberverwaltungsgericht (OVG), was informed of the detail of the measures proposed and of the importance of Ramadan and actually meeting together in the Muslim faith, with references to passages from the Koran. Meeting together in community is unsurprisingly an integral part of most faiths, including Christianity (New Testament, Hebrews 10:25 “not giving up meeting together”).

The OVG on 23rd April refused interim measures, due to the need to slow spread of the virus and prevent the health system being overwhelmed. It reasoned that religious services involved the intended meeting together for periods of time of individuals, unlike shopping, and could contribute to the spread of the virus and ultimately people’s deaths.

On appeal to the BVfG, that decision was overturned. The starting point was the basic right to freedom of religion for all faiths, which should only be restricted on an individual and informed basis. The BVerfG had regard to the importance of Friday prayers during Ramadan within the individual faith being considered. This was to be the balanced against the question of the effectiveness of the hygiene measures proposed, the layout and structure of the relevant building, and local danger posed by social contact in the specific region. The applicant must at least be given the opportunity to apply to the local authorities responsible for the regulations and for health, for these factors to be considered in light of the current state of knowledge of the virus and means of containing it. On this approach, the BVerfG held it was not possible to say that an application could not succeed.

Both SCOTUS and BVerfG applied a presumption in favour of freedom to meet for religious services. The presumption may only be overcome in very limited circumstances even in a pandemic. Even if a health risk might prima facie exist, the risk must actually be assessed individually to ensure meetings are allowed insofar as possible. Blanket prohibitions or fixed limits on numbers after the very initial stages violate the basic principle of freedom of religion.

Immediate parallels can be seen in the United Kingdom. In Scotland, current guidance sets fixed maximum numbers for religious meetings at 50 and 20 depending on tier level. Such restrictions do not respect the legal principles referred to and are questionably within the legal competence of the Scottish Ministers in terms of ECHR compatibility.

No assessment is to be made of how many attendees could safely be accommodated in St. Giles or the Cathedral of the Isles? Would a layperson upset at inability to meet for worship and disappointed at church leadership failure to question the Scottish Minister’s arbitrary guidance restrictions be entitled to damages against either the church or the Scottish Ministers? Perhaps a discussion for another day.

Gordon Lindhurst is MSP for Lothian Region, a non-practising advocate and barrister-at-law. He graduated from Edinburgh and Heidelberg Universities ((LLB(Hons); LLM), studied for the diploma at Glasgow University, and has taught English and Scottish court practice at the University of Bonn.