'The Coronavirus Pandemic and Religious Freedom: Judicial Decisions in the United States and United Kingdom' by Guy Baldwin in (2021) 26(4) Judicial Review 297-320 comments
Restrictions imposed by governments in response to the spread of the novel coronavirus SARS-CoV-2 have presented a human rights challenge around the world. The difficulty of balancing public health against human rights has been particularly acute in relation to freedom of religion, as measures limiting attendance at places of worship or requiring their temporary closure have been challenged in the courts. This article analyses judicial decisions in the US and UK that have considered the lawfulness of restrictions on places of worship. Although the legal approaches to assessing violations of freedom of religion in the US and UK are different, both approaches have led to the similar result of courts taking issue with the imposition of certain public health restrictions on places of worship.
In the US, where the current, albeit controversial, understanding of the requirements of the Free Exercise Clause of the First Amendment invites attention to the neutrality and general applicability of a law, the Supreme Court initially declined to grant injunctive relief against coronavirus restrictions on places of worship, before reversing course in Roman Catholic Diocese v Cuomo.
In the UK, assessing the question under art 9 of the European Convention on Human Rights (ECHR), as incorporated into UK law by the Human Rights Act 1998, the Outer House of the Court of Session in Philip found that Scottish coronavirus restrictions were not proportionate to their legitimate end.
This article argues that these decisions exhibit a number of problems, and the preferable view is that restrictions on religious practice to save lives in a pandemic can be legally justified on a temporary basis. The article is structured in four parts. In Part 1, it will set out the legal test for the protection of free exercise of religion under US constitutional law, and how it was applied in a series of applications for injunctive relief heard by the US Supreme Court in 2020 and 2021. In Part 2, it will turn to the situation in the UK, setting out the test under art 9 ECHR, and the decisions that have considered this article in the context of coronavirus restrictions. In Part 3, it will identify four areas of difficulty with the decisions: the role of comparisons between the regulation of secular and religious activities; the use of a tailoring or less intrusive means tests; the significance of the temporariness of the restrictions imposed; and the relevance of rights of others in this context. Part 4 concludes that there may be lessons for practitioners and courts in the differing approaches taken in the two countries.
