Religious Freedom and Pandemic Restrictions

Eoin Daly, NUI Galway

 

There has been some confusion lately about the application of pandemic restrictions to religious worship. Oran Doyle has argued that while police have apparently threatened ‘at least one priest’ with prosecution, religious services are in fact not prohibited by the current regulations. This, as he has outlined, contrasts with the position that applied in the spring during the first ‘lockdown’. Meanwhile, the Catholic hierarchy have recently urged a ‘restoration of public worship’. While Oran Doyle has outlined the Rule of Law implications around the confusion of advisory guidelines with law, my  purpose in this post is to consider, at a more abstract level, what the constitutional position is in Ireland regarding legal restrictions (hypothetical or otherwise) on religious worship.

 

While this question would turn to a large extent on general principles of proportionality, my focus here is on the relative peculiarity of religious freedom as a constitutional right, both in Irish case law and more generally.

 

American lessons

In short, most plausible ‘tests’ for violation of religious freedom quickly run into conceptual difficulty and contradiction. This is most vividly illustrated by the history of religious-freedom jurisprudence in the United States. Until the 1990s, the standard test for applying the first-amendment ‘free exercise’ clause focused on the effect state actions had on religious freedom in practice – and particularly the centrality or importance of the religious practices or beliefs they affected. This raised intractable problems involving courts assessing, or somehow weighting the importance of the practices or beliefs affected by general legislative restrictions that were usually not targeted at religion as such. Take, hypothetically, the example of a general prohibition on face coverings, that, let us imagine, was not enacted with religion in mind, and predated any political controversy about religious face coverings. Supposing we were to decide that a violation of religious freedom was based on the effects of a measure, rather than its object or aim. But how is that effect appraised? It is obviously unsustainable to grant an automatic expectation of exemption, for religiously-motivated conduct, from every general prohibition of a specified type of conduct. On the other hand, however, using the effect of a measure, as a threshold or test for violation, raises the difficult prospect of courts making religiously controversial judgments about the relative weight or importance of various religious practices.

 

Partly in response to such conceptual difficulties, the US Supreme Court effected an about-turn in its first-amendment religious freedom jurisprudence in the 1990s. In the landmark case of Employment Division v Smith (1990), it held that no violation of ‘free exercise’ arises from legislative measures that are religiously ‘neutral’ and of ‘general applicability’ – regardless of their effects on religious practice. While this got around some of the conceptual difficulties of the test it had displaced, it caused controversy because of the seemingly precarious position in which it apparently placed minority religious practices in particular. Since it left the question of religious exemptions at the discretion of political authorities, it left open the prospect that minority religious practices, in particular, might be inadvertently or carelessly restricted by generally applicable legislative prohibitions. In any event, Smith shifted the focus of religious-freedom jurisprudence to a broad question of religious neutrality, with the Court often taking a broad approach in practice to considering whether impugned restrictions were ‘neutral’ in the broad sense.

 

Ireland: constitutional ambiguity

Irish constitutional jurisprudence has not escaped these conceptual difficulties, although they have not been confronted as explicitly or as vividly as in the United States. While we have relatively little case law relating to religious freedom, I have suggested in a previous article that our jurisprudence oscillates between two competing ‘grammars’ of religious freedom.  On the one hand, there is no unifying constitutional ‘principle’ to make sense of the religious-freedom provisions. Indeed, the text of the Constitution itself is flexible enough to accommodate quite diverse conceptualisations of the public status of religion. It can be read, on the one hand, as embracing religion – or perhaps a preferred version of it – as an integral aspect of the common good, to be protected and promoted by the State as such (the ‘communitarian’ reading). Alternatively, the Constitution can be read, in a more ‘liberal’ sense, as placing religion in the “private” sphere, as being largely a question of individual choice. A good deal of revisionist scholarship in recent years and decades has emphasised the relatively liberal and pluralist tenor of the constitutional provisions on religion, compared with the public perception of a Catholic or even theocratic Constitution. Still, however, one could hardly say that it straightforwardly embraces a liberal model of state neutrality towards religion. 

 

This conceptual confusion is most clearly expressed in the case law concerning religious education, where despite earlier judicial affirmations as to the centrality of Christianity and of religious identity in the constitutional order, the Supreme Court in more recent decades has reconceptualised state support for religious education as being justified merely in terms of facilitating parental ‘choice’, defined in religiously neutral terms.  And in the wider discourse on religious schooling, religion has often been depicted as something of a parent-consumer ‘choice’ rather than as a constitutive identity warranting specific constitutional recognition. 

 

Yet, as late as 2009, MacMenamin J in McNally v Ireland [2009] IEHC 573 described the Constitution as having “a monotheistic Christian ethos”,  in upholding legislative regulation of the sale of ‘authentic’ Mass cards. He observed that whereas “in United States jurisprudence there is a wall of separation … under the Constitution of Ireland there is a constitutional ‘domain’ of religious recognition”. This reading positions the Irish Constitution close to the spirit of Justice Scalia’s dissent against a judgment prohibiting public-school prayer where he criticised the Court’s (then) liberal majority for understanding religious practice as “some purely personal avocation” (Lee v Weisman 505 US 577, 645 (1992)).

  

Case law

This ambiguity of principle is reflected in the difficult question of whether religious freedom warrants exemption from generally applicable legislative restrictions that affect, but are not targeted at religious practice as such. In Quinn’s Supermarket v Attorney General [1972] IR 1, the Supreme Court held, based on a strict reading of the prohibition on religious “discrimination”, that religious exemptions from legislative prohibitions were unconstitutional as a form of discrimination, whether they are benign or otherwise. However, it also ruled that where religious exemptions are necessary to religious freedom, they are not only constitutionally permissible but constitutionally required, at least to the extent that such exemption is in fact necessary to accommodate the religious practice in question. 

 

The implication of Quinn’s Supermarket was, in theory, to eliminate any political discretion regarding religious exemptions. They are either constitutionally prohibited, or constitutionally required, depending on their necessity. One of the problems thrown up by this approach was the question of defining such necessity, both in terms of appraising the impact of legislative restrictions on religious practice, and the question of weighing this impact against countervailing public policy considerations.

 

Further uncertainty was added by a second landmark case on religious freedom, Murphy v IRTC [1999] 1 IR 12, which concerned the prohibition of a Christian evangelical radio advertisement on private commercial radio. Interestingly, the impugned legislative measure – a prohibition on TV and radio advertisements aimed at ‘religious … ends’ – was not a generally applicable prohibition but one targeted at religious activity specifically. However, what seemed most decisive in the Supreme Court’s upholding of the measure was what it perceived as its marginal impact on religious practice. Although ‘profession’ of religious beliefs is specifically protected by Article 44.2, the Court was swayed by the fact that the applicant would have access to other avenues for expressing his beliefs. The implicit underlying assumption – arguably a problematic one – is that evangelising on the airwaves is not essential to religious practice, and so receives little or no constitutional protection. The justifications which the Court accepted as outweighing the religious claim – in particular, the rather intangible concern for ‘divisiveness’ – seemed quite vague and abstract.

 

Application to pandemic restrictions

In terms of pandemic restrictions on religious practice – hypothetical or otherwise – there are a few tentative conclusions we can glean from the limited case law. In contrast with the U.S. case law, Irish courts have few reservations about appraising the significance of legislative restrictions for religious practice; in fact, this seems more decisive than the neutrality or general applicability of the restrictions themselves. It seems safe to say that a prohibition having the effect of preventing congregation for the purpose of religious service or worship would be accepted as affecting religious practice in a deep and significant way. What this suggests, I think, is that the constitutional question would likely be addressed with reference to generic principles of proportionality, but with a relatively intense or strict standard of review. It seems safe to say that a Court would not accept the relatively intangible justifications proffered in Murphy as satisfying a proportionality standard in relation to a closure of places of worship. Needless to say, more compelling and concrete justifications are available in this unique situation.

 

Finally, the recent case law of the United States Supreme Court is of relatively little use in guiding the equivalent question in Ireland. The Court narrowly upheld restrictions on religious worship early in the pandemic last spring, but narrowly ruled in the opposite direction in the autumn and again, in February, following the successful confirmation of Amy Coney Barrett. However, these cases were decided based primarily on the argument as to whether the relevant restrictions on religious worship were ‘discriminatory’, in the broad sense, when compared with restrictions even on differently positioned secular businesses such as shops, liquor stores, etc. For the reasons I have outlined, the constitutional question in Ireland would likely be decided based on quite different parameters. While a concurrent challenge based on religious ‘discrimination’ in Article 44.2 is possible, it seems unlikely to succeed given the circumstances. Rather, the argument is more likely to be one for particular treatment of ‘exemption’ for religious worship.

 

Eoin Daly is a lecturer in NUI Galway and author of Religion, Law and the Irish State (Clarus, 2012)

 

Suggested citation: Eoin Daly, ‘Religious Freedom and Pandemic Restrictions’ COVID-19 Law and Human Rights Observatory Blog (19 March 2021) https://tcdlaw.blogspot.com/2021/03/religious-freedom-and-pandemic.html