The Scottish Court of Session recently found the Scottish government guilty of having acted unlawfully in closing places of worship as part of their measures to curb the Covid-19 pandemic, raising questions around the extent to which governments can restrict religious freedom for the sake of public health.

Across the world, the Covid-19 pandemic has led to varying restrictions on how we live our lives. There is a widespread consensus that relinquishing some basic rights in the short term is necessary for the sake of the wider population and public health. However, as the events in Scotland show, just what exactly can be restricted, and in what way, remains a thorny question with no straightforward answer.     

SCOTTISH CHURCH LEADERS CHALLENGE COVID-19 MEASURES

27 church leaders from various denominations successfully challenged Covid-19 measures that had closed places of worship, as held in a decision of the Scottish Court of Session on 24 March 2021. The church leaders challenged these measures on the basis that they infringed on human rights in a way that was disproportionate to the objective of suppressing Covid-19 infections. They made the case that closures breach the rights enshrined in the European Convention on Human Rights (ECHR). Under the 1998 Human Rights Act, the Scottish government is required to act in accordance with the ECHR. The church leaders made the case that the closure of places of worship breached article 9 of the ECHR, protecting freedom of thought, conscience, and religion, and article 11, providing for freedom of association and assembly.   

While the rights enshrined in articles 9 and 11 of the ECHR are not absolute, limitations must be proportionate to and necessary for a legitimate objective. As the court deemed that reducing Covid-19 transmission was a legitimate aim for the sake of public health, the argument rested on issues of proportionality and necessity. The key question was not whether any closure of places of worship would be unlawful, but rather whether these closure measures were necessary to suppress Covid-19. Could other measures have better preserved people’s right to worship while also reducing transmission? Ultimately, the court decided that although the measures would have helped to reduce transmission, they were disproportionate to this aim, since possible means exist for places of worship to mitigate potential transmission. In enacting the measures to close places of worship, the Scottish government did not place adequate importance on the right to worship.

Judge Lord Baird made it clear that he was not suggesting all forms of communal worship should be allowed or that this would be safe. He instead said that “[a]ll I have decided is that the regulations which are challenged in this petition went further than they were lawfully able to do, in the circumstances which existed when they were made”.  

HUMAN RIGHTS IMPLICATIONS

This court case in Scotland is noteworthy as it sends a clear legal signal that governments must still fully abide by their human rights commitments when implementing Covid measures. This is not to say that all rights can be fully preserved when the most extreme Covid measures are necessary. Instead, attempts to observe and respect human rights as much as possible must be part of the decision-making process. Protecting public health is not a catch-all excuse to undertake any action that may possibly limit the spread of the pandemic.

While closing places of worship would help reduce potential opportunities for transmission, this does not mean that it was a necessary step when considered alongside other measures that could be taken. A public health crisis allows for some rights to be curtailed but only when necessary. Religious services can be carried out in a way that mitigates risks of transmissions. Thus, it can be questioned why this should be banned when alternative arrangements have been put in place to ensure that other human rights can be protected throughout the pandemic. For example, cinemas have been used as a venue to allow jury trials to continue. This might suggest that protecting the right to a fair trial (article 6 of the ECHR) is more important than the right to freedom of religion. If activities of a similar risk level are allowed to take place, then some freedom to worship can, and should, also be allowed.

While many religious services now take place online, not everyone will be able to engage with these opportunities. When there are ways for places of worship to open in a Covid-secure manner, such as through the use of social distancing and mask wearing, a lack of in-person services may disproportionately affect those who are already lacking in technology. Thus, their opportunities to be with other people virtually or otherwise would also be affected. Even while still under restrictions, the option for places of worship to be used would allow religious communities to provide more people with the opportunity to engage in their right to worship.  

On the other hand, why should the right to freedom of religion be protected when everyone, religious or not, has had to relinquish some of their rights to liberty or to freedom of assembly, for example? Does religion merit special status when deliberating measures? Faced with a public health crisis, everyone has had to make sacrifices. There is no official hierarchy of human rights for governments to refer to, and which, if any, human rights should be prioritised has long been a contentious issue across global human rights discourse.

Throughout the pandemic, governments have been faced with complicated situations that demand nuanced, proportional responses. Yet, as restrictions ease and there are more options for activities to take place in a safe manner, governments should remain aware of their ability to maximise religious freedom. For religious people, activities such as going to the pub or watching a football match just do not have the same importance as being able to attend a place of worship.

COVID-19 AND RELIGIOUS FREEDOM ACROSS THE WORLD 

Unsurprisingly, how to manage religious worship while fighting the spread of Covid-19 has been a source of debate across the world. As the Scottish case shows, the issue seems to lie in the extent to which religious freedom may be curbed relative to the risk in question. The US Supreme Court ruled that the Nevada Governor Steve Sisolak was not acting wrongly in allowing casinos to operate at 50% capacity regardless of overall capacity, while church services were limited to 50 participants in all circumstances. The church that took the matter to court could have maintained social distancing within their building even with the entire congregation present, yet were limited to 50 people, whereas some casinos were able to operate with hundreds of clients in the building at any one time. Here, the issue once again remains the disproportionate effect of restrictions on religion. Freedom to worship is being affected more than a commercial business’s ability to operate, whereas the relative risks of each activity would be similar.

What is more, the pandemic has provided governments with the opportunity to manipulate restrictions in a way that furthers their specific agendas or beliefs. For example, in Georgia, religious gatherings were allowed to take place over Easter. However, Muslims wanting to gather together for Ramadan were met with hostility from the Georgian government. Likewise, in India, Covid-19 has allowed the Hindu majority government to increase anti-Muslim rhetoric by blaming outbreaks on the Muslim community. In places where equal freedom of religion was already at risk, the challenges to believers go beyond simply being unable to access a physical building to worship.   

GOING FORWARD

Covid-19 has given governments across the world unprecedented abilities to restrict religion and their citizens' human rights in various ways. As countries look to return to normality there will inevitably be worries about the future implications of this. Responding to the successful ruling against the closures of places of worship, the Scottish Reverend Dr. William Philip said that “if this had gone unchallenged it would have set a very dangerous precedent”.

Governments must continue to be held accountable for maintaining human rights standards. The ruling in Scotland could be seen as somewhat symbolic given that it came just two days before places of worship were legally allowed to start reopening. However, it has brought a welcome reminder of the fragility of religious freedom and the discussions that those in power need to have regarding the place of religion within society.

Ella Rough is a final year undergraduate Chinese and Philosophy student at the University of Leeds with a keen interest in human rights, migration, education, and conflict. Her studies have focused on the political and human rights issues within China alongside normative ethics.

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