Updated: Sep 19
In 2020, the viral spread of COVID-19 threatened each of our lives and dramatically changed our lifestyles. In response, the government initiated many new regulations and restrictions to stop the spread of COVID. As the pandemic prolonged, cases were brought up around the world against the government on whether the restrictions had violated citizen’s fundamental rights.
The article will explore and compare aspects of three cases, from the United States, United Kingdom, and Germany respectively, and are all based on the freedom of religion (also keep in mind of each country’s distinct factual circumstances) but produced a broad array of judicial reasoning.
Backgrounds of cases
Germany’s highest court in 1 BvQ 44/20 struck down the government’s absolute ban on religious services which violated Article 4 of the German Constitution in April 2020 (with 790 COVID cases in Germany). In the following month (with 2542 cases in the UK), R (Hussain) v Secretary of State for Health and Social Care ruled by UK’s High Court in favor of the Government on claimant’s ECHR Article 9 right. South Bay v Newsom, was decided by US Supreme Court — 6-3 majority — in February 2021 (around 3500 cases per week in California) that First Amendment Free Exercise Clause was violated by California’s restriction on indoor worship.
1) Government’s compelling interest
There is no question about how deadly and contagious Coronavirus is. All three courts agree on the immediate need for government to set up regulations and help counter the spread of COVID. For UK, Justice Swift applies a higher standard of review for the claimant’s application for interim relief in light of the circumstance.
2) Least restrictive means
Germany – Germany conducted a blanket ban on worship services. Highest court opined that an absolute ban is in violation which breaches religious freedom and the risk of COVID transmission differs depending on the religious activity. Hence, in its case, Friday Prayer was permitted as long as there were precautionary measures.
UK - Justice Swift acknowledged the government’s “complex political assessment” in their decisions and allowed the government to take a “precautionary stance”. Different from the US and Germany, there were several exceptions in Regulations 2020, which allowed places of worship to be used (e.g. funerals).
USA - The majority claimed that California’s regulations were not narrowly tailored. The Court pointed out that the government's justification of a ban on indoor worship — zero attendees can safely worship in churches — is not showing careful discretion. It sought that government can at least give churches the option akin to COVID testing in workplaces to reopen.
3) Proportionality/neutrality test
Germany – Stemming from its prior reasoning, Court states that the absolute ban on religious services is disproportionate.
UK – Justice contends that worship places present greater transmission risk than secular businesses; therefore, the infringement of claimant’s rights in Article 9 is not disproportionate.
USA – The majority stated that worship services in comparison with secular activities are treated disadvantageously, such as hair salons. Justice Barrett also views that singing bans in churches is also considered as not neutral because “a chorister can sing in a Hollywood studio but not in her church”. However, the dissent — led by Justice Kagan — warned that indoor worship should be compared to secular conduct that endangers the government’s interests “in a similar or greater degree”; the decision also blurs the line for the government of the permissibility of indoor ban.
4) Margin of Appreciation
Germany – It emphasizes that its review is on a case-by-case basis. In the specific circumstance of this case, a fair balance between individual rights and public interest is not reached.
The UK – A fair balance is struck by the Regulation. The case is only concern with one aspect of religious activity and does not represent the belief of the majority of Muslims. The Regulation is also periodically reviewed and subjects to expiration in September 2020.
USA – The majority opined that citizens' rights need to be protected. It is skeptical about the government’s “uneven regime” that the “temporary” ban on indoor worship had continued while malls had reopened. However, the dissent warned of the grave consequence — foreboding the surge of COVID infections — of the interference with medical expert’s decisions.