Bloc-notes

I was happy to deliver this talk as part of the University of Portsmouth's Research Futures Webinar Series. 

I discuss some of the work that we are currently doing with Nicholas Miller at the Covid-19 and Religious Liberty Research Project. 

Special guest star: Nick adds some additional comments at the end of the video. 

I'm posting the text of the talk below (for reference or reproduction, please use citation details provide). 

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Covid-19 and the challenge of religious freedom

Alexis Artaud de La Ferrière, 20 January 2021

Introduction

To begin, I would like to acknowledge the ambiguity in the title of my talk today: Covid-19 and the challenge of religious freedom. Does the preposition “of” denote a challenge which religious freedom poses to the public heath response to the Covid-19 pandemic? Or does it refer to the challenge which the pandemic poses to the proper exercise of the right to religious freedom?

The position which I’d like to develop today, is that both of these considerations need to be addressed concomitantly. The protection of public health should not discount the public’s right to religious freedom. At the same time, the freedom to manifest one’s religion or beliefs is not absolute. Such freedom may, from time to time, need to be limited by law “in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others” (ECHR, art. 9.2).

The controversy of religious freedom

I’m aware that this is a controversial position. In an article published on January 5th, the National Secular Society in the UK argued that “the lockdown exemption for communal worship represents a dangerous double standard”. What is the logic, they ask, behind forcing outdoor sports venues, such as tennis courts, golf courses and swimming pools, to close, but allowing worshippers to gather under the same roof?[1]

The short answer to this question is that the right to religious practice is protected by the ECHR in a way that these other kinds of activities are not. [2]

However, in a country where just over half of the population say they do not regard themselves as belonging to any religion, I recognise that such a response might not be immediately satisfactory.

·         It’s important to remember that the UK is an outlier in this regard. Religiously unaffiliated people represent about 16% of the global population – and almost all of those people live either in China (62%), Europe (12%) and North America (5%).

·         Also, as the proportion of non-European immigrants in the UK increases, we may expect religious affiliation to increase as well. 

So, what I would like to do now is to consider in some more depth why religion and analogous belief systems might be worthy of special protection. Some final preliminary remarks:

·         I’m going to build my discussion around a policy document that we’re currently developing in the context of the “Religious Liberty and Covid-19 research project”, which I initiated a couple of months ago with Nicholas Miller (Andrews University). A lot of this material has been co-authored by Nick.

·         The following discussion is not specifically intended as an argument to convince the committed secularist. But it does advance several issues which I believe the secularist needs to address explicitly if they want to argue for the curtailment of religious rights.

·         It’s also important to note that a position in favour of religious freedom does not commit one to the view that either religion in general or a particular religion is good. However, I do think it does preclude the view that religious belief and practice are necessarily bad (the New Atheist thesis). I think it makes sense to advocate for a right that might expose someone to risk; I don’t see how you could defend a right to something that you view as intrinsically or necessarily harmful.

·         Finally: one of the reasons that this topic interests me is because the pandemic has laid bare a number of points of fracture and tension between the social  spheres of religion and politics. If we want to better understand the current relationship between churches and the state, or the profile of secularisation within a society, or the extent to which certain religious movements themselves have been penetrated by secularisation, we can find no better point of observation than the records of public debate and legislation in response to COVID-19.

The legal trend in favour of religious liberty

The first point to consider is to briefly review the state of play over the past year.  In the early months of the pandemic, public authorities across the globe implemented unprecedented restrictions on public religious gatherings, communal religious practices, and access to religious spaces.

However, following an initial restrictive impulse during the Spring-time lockdowns, states have subsequently tended to provide greater accommodations for religious practices and communities, often under the influence of the judiciary:

·         In April 2020, the German Constitutional court ruled that a general prohibition on collective religious worship was in breach of Article 4 of German Basic Law since the prohibition did not allow for exceptional approval to be granted for religious services on a case-by-case basis.

·         In November 2020, the French Conseil d’Etat ruled against the government’s blanket cap on 30 person attendance limit in sites of worship, on the basis that it was not proportionate to the sanitary risk in each site.

·         In November the US Supreme Court blocked the State of New York from enforcing attendance limits in places of worship, the majority arguing such restrictions were not narrowly tailored; the court upheld a similar petition against the State of Colorado in December.

o   Note: Importance of Justice Coney Barret in 5-4 decisions

·         In England, the government did not lose a religious liberty case, but this is probably only because restrictions were eased during judicial review (in the night of July 2nd).[3] Justice Lewis therefore adjourned consideration of Article 9 for further submission.

o   Under the terms of the January 4th lockdown guidelines, places of worship are permitted to remain open for individual and communal worship.[4]

o   As far as I am aware, this is the result of the Lewis decision from July 2020, which signalled that the court would strike down a new mandatory closure of religious buildings.

These rulings are part of what Mark Hill describes as “a steady stream of cases from around the world, now developing into a torrent, where the constitutionality of emergency provisions is being challenged”.[5]

We are still in the midst of the pandemic and it is too early to reach any definitive conclusions. But we can tentatively say that there appears to be a trend (within Western jurisdictions at least) to limit the scope of COVID-19 restrictions against religious freedom, even where the courts have thrown out petitions pertaining to other social domains such as freedom of movement, the right of assembly, education, and commerce.

Substantive and pragmatic arguments in favour of religious freedom

Our position within the Religious Liberty and Covid-19 research project is that this trend is warranted for both substantive and pragmatic reasons.

Substantively, we have three main concerns:

First, many people believe that access to religious spaces and participation in communal religious practices constitutes a moral obligation. Therefore, such limitations may constitute a violation of individuals’ moral autonomy, conscience, and dignity[6]. Such restrictions may also violate the religious autonomy of the religious community as a whole.[7]

·         A word on religious autonomy: Religious freedom is usually interpreted as an individual right rooted in individual conscience. But in practice, religion almost always has a communal dimension. Cole Durham has argued that “religious freedom can be negated as effectively by coercing or interfering with a religious group as by coercing one of its individual members”.[8]  Therefore, the religious autonomy argument holds that in order to effectively guarantee religious freedom, religious associations must have the autonomy to “decide upon and administer their own internal religious affairs without interference by the institutions of government”.[9]

Second, and relatedly, collective religious practices have been shown to play a uniquely powerful role in individuals’ sense of self due to the compelling affective experiences and the moral authority associated with religious group membership.[10] 

·         We believe that this point is particularly salient in the current context because as public health interests intensify in times of crisis, the significance of religion in people’s lives also intensifies.[11] In other words, the pandemic has intensified many people’s phenomenological experience of needing to practice or express their religious convictions. As Emmanuel Levinas writes, “‘Need becomes imperious only when it becomes suffering”.[12]

Third, the state’s hierarchical valuation of certain gatherings as “essential,” (such as shopping, manufacturing, or airline travel) has sometimes left religious gatherings in a less-favoured category. This effectively prioritizes material well-being over mental, emotional, and social well-being.

·         It is relevant to note that WHO defines health as a state of complete physical, mental, and social well-being; and not merely the absence of disease or infirmity.[13] Therefore, State responses to pandemics which marginalise people’s social and spiritual needs violate the spirit of this definition, and risk exposing people to unintended health risks including depression, despair, and even suicide.

·         It is also important such to note that hierarchisation policies made by states are not value neutral: they are not a direct transposition of scientific knowledge. Therefore, these kinds of practices risk undermining the social legitimacy of religious normative authority by explicitly subordinating it to the political authority of the state.

In addition to these concerns of principle, we are also of the opinion that greater religious freedom can be conducive to the protection of public health.

When public authorities demonstrate religious literacy and when then include religious representatives in the policy process, such practices help to foster civic trust between religious communities and the state. That leads to greater levels of compliance on behalf of religious persons with public health guidelines.

·         Gramsci: More effective to coopt than to force!

The opposing risk is that when the state uses force in a unilateral manner to outlaw what religion prescribes, these two spheres of authority can come into collision, raising the political risk of civic disaffection and conflict.

Here we touch upon what Leo Strauss called the “theologico-political problem” of authority. Is political authority to be grounded in the claims of revelation or secular reason? Do religious citizens defer to Jerusalem or Athens?

We don’t have time to pursue this final issue in depth, but I would note Strauss’s view that this problem is intrinsic to our modern political condition. We probably cannot resolve these inherent tensions and contradictions, but necessary starting point is to recognise them.

These are some of the key elements in the policy document we are developing.

Conclusion

To conclude, I would like to return to the argument advanced by the National Secular Society that “the lockdown exemption for communal worship represents a dangerous double standard” and that it is, in effect, an instance of privilege for religious groups that undermines equality.

I think that the major flaw in this position is that it mischaracterises religious freedom as a group right, restricted to certain theistically oriented groups qua groups. In fact, religious freedom is a human or fundamental right afforded to all individuals. Anat Scolnicov has laid out the argument that this right protects groups only as derivative from the rights of individuals.[14] Additionally, this right it extends beyond theistic or strictly religious convictions, so long as they attain a “certain level of cogency, seriousness, cohesion and importance”.[15]

The ECtHR has in fact acknowledged that the safeguards of Article 9 apply to an attachment to secularism. [16] Another expression of this principle can be observed in Belgium where non-confessional philosophy (secular humanism) became an officially recognised religion by the state in 2002.

The proper equality test therefore, is not to compare communal worship to the swimming pool, but to communal secular activities which express an equivalent level of level of cogency, seriousness, cohesion and importance to that contained within the Mass or the Ṣalāt al-Jumuʿah.

In this regard, committed secularists may find that the social nature of their own convictions and practices do not differ as radically from those of religious traditions as they would like to assume.

Covid-19 continues to raise political, social and philosophical challenges.  In collaboration with Nicholas Miller (Andrews University), Cole Durham (Brigham Young University), Rosa M. Martinez de Codes (Universidad Complutense de Madrid), and Brett Scharffs (Brigham Young University), I organised this conference in December 2020 to reflect on the long-term impact of the pandemic on issues of religious freedom. A full list of speakers is available here.