Protecting Institutional Religious Freedom – Part 3

Earlier articles reviewed the concluding event of the Religious Freedom Institute’s three year Freedom for Religious Institutions in Society (FORIS) project, with particular emphasis on the threat of sexual orientation and gender identity (SOGI) laws to religious institutions. A second panel reviewed the national and global impact of the lockdowns and restrictions that issued from the coronavirus pandemic on religious institutions and activities.

Mark Rienzi, President and CEO of the Becket Fund for Religious Liberty, noted in introducing the panel that executives around the world (chief executives, governors, mayors, etc.) assumed drastic powers, and closed houses of worship.

Kathleen Brady, Senior Fellow at the Center for the Study of Law and Religion, Emory University, spoke first.  She said that litigation over coronavirus restrictions by churches and other religious groups “mushroomed” shortly after the March 2020 lockdown. At first, religious groups generally complied with the lockdown, but as it dragged on for weeks, many doubted the necessity of measures so stringent. Religious groups especially objected to regulations they claimed “favored commercial and recreational activities over religious activities.”

In July 2020, the Supreme Court rejected the appeal of a rural Nevada church, Calvary Chapel, which complained that casinos could be open with many people, but not churches with more than 50 people, regardless of the size of the church building. Litigation picked up in the fall of 2020 and winter of 2021 as coronavirus infections increased. With the replacement of Associate Justice Ruth Bader Ginsburg with Amy Coney Barrett, the legal tide shifted. Previously a 5-4 balance had ruled against religious freedom. There was now a 5-4 balance in favor of religious freedom. November 2020 saw injunctive relief for churches in New York fighting 25 and 50 person limits. In February 2021 the court ruled against California’s regulation prohibiting in-person worship in areas of high coronavirus infection, and in April 2021 it ruled against restrictions on religious worship in homes.

The principal claim of religious litigants has been an antidiscrimination claim, that religious activities are being disfavored relative to secular activities. There were several reasons for this strategy. First, Brady said, equal treatment makes “intuitive sense.” Religious officials also believed that restrictions on religious institutions were being maintained even after the behavior of the pandemic was being better understood, and there was a greater understanding of how large groups could meet in relative safety. The antidiscrimination strategy also conformed with the Employment Division vs. Smith ruling, which basically makes religious freedom an antidiscrimination issue. Under Smith, it must be shown that religious activities are being targeted for attack in order to appeal to religious freedom in deciding cases. Brady said that the challenges to restrictions on religious meetings as state and local jurisdictions opened up “fit this pattern.”

As a result of this litigation, “it’s now clear that anytime the government regulates religious conduct, but spares secular conduct that undermines the government’s interest to the same or greater degree, its rule is not neutral or general applicable, and it triggers strict scrutiny, and even a single instance of favorable treatment for comparable secular conduct triggers that form of heightened scrutiny. This is a major development, clarifying the concept of religious discrimination, and expanding the scope of free exercise protections.”

Brady noted however, that even this heightened scrutiny does not eliminate the general rule of the Smith decision – that religious freedom remains an antidiscrimination issue. Courts, and political authorities that must follow their rules, must now decide what a comparable secular activity is to a given religious activity. Religious freedom is not a fundamental right in itself, in contrast to free speech. She agreed with Justice Neil Gorsuch’s comment in the Fulton vs. the City of Philadelphia case, in which the court declined to overturn the Smith decision, that Smith is an “ailment” that needs to be cured. If a jurisdiction were to place very severe restrictions on all comparable secular activities, strict scrutiny would not be triggered, “even if there were less restrictive measures the state could take to make sure that religious worship was safe.”

She also said that a problem with the pandemic restrictions and antidiscrimination jurisprudence is that the restrictions which were imposed restricted or prohibited essential religious functions (such as weekly worship or the administration of sacraments). This conflicts with the doctrine of “church autonomy” that the court has recently begun developing, in which protecting religious exercise is not dependent on antidiscrimination considerations. But even the “autonomy” principle is not absolute, Brady said. In the case of an epidemic, public safety may require restrictions that limit religious activity. But “if anything falls within the scope of church autonomy, certainly worship services do.” Religious activities are as essential for believers as food, and governments must regard them as essential, just as grocery stores are considered essential.

Rebecca Shah, Senior Fellow at the Oxbridge Institute, and an architect of the Institutional Religious Freedom program at RFI then discussed the SMART survey, conducted under the auspices of RFI’s FORIS Project. The survey covered both religious individuals and religious institutions. Shah discussed the religious institutions section of the survey. The survey stands for “Simple Meaningful Accessible Relevant and Timely” reports. It looked at violations of religious freedom worldwide, and endeavored to gain the perspective of local actors in non-Western countries on the ground, rather than from reports of religious persecution issued in western countries. The survey measured both the state of the free exercise of religion, and discrimination against religious persons and groups. Also measured were the intensity of religious restrictions. The survey differentiated between majority and minority religious communities.

The SMART survey also looked at the impact of the coronavirus pandemic. Although it was begun before the pandemic began, it was “retooled” to measure the religious freedom impact of the crisis on different communities.

In this regard, it surveyed how laws were used to determine “whether or not certain religious institutions could re-open.” “Registered” churches could more easily open in parts of Malaysia, for instance. One out of three respondents in India reported discrimination in the distribution of humanitarian assistance during the pandemic, one out of five respondents in Indonesia said the same thing.

In India, majority population (Hindu) religious institutions are in fact more strictly regulated than others, and the pandemic restrictions “shut, locked the door of temples, and placed limits on how religious authorities – Hindu religious authorities – could interact with Hindus.” An additional problem was that Hindu temples were asked to contribute to relief funds for the pandemic. Yet the temples had been closed and Hindu nationalist organizations such as the RSS (which want temples released from state control) asked “how could Hindu temples provide hundreds of thousands of rupees when our priests are solely dependent on the offerings of the devotees and right now the pandemic has left them in the lurch and facing starvation.” The great majority of India’s poor are Hindu, and “due to heavy state sanctioned restrictions on Hindu institutions, many … were not able to serve their adherents.” Other religious communities were “differently set up, and they were able to provide humanitarian assistance to the poor.” Shah said that since liberalization in 1991, there has been less state support for the poor, but religious organizations have filled in the need for social services. The pandemic has also enabled various governments to place severe restrictions on religious institutions they deemed “a threat to national security.”

Another problem has been control of financial resources. “In Turkey, non-recognition of Alevi places of worship by the state meant that during the pandemic these religious institutions did not benefit from free utilities.” Christian institutions in northern Nigeria “claimed that they had been excluded from funds to help them during the Covid pandemic.” In Iraq, Yazidis claimed that funding for the restoration of their shrines were cut, but “large amounts of money were available for the restoration of Islamic sites.” In India, regulations on foreign currency were used to determine how funds for religious institutions could be used.

Shah said that a danger she has noted from her work in South Asia and Southeast Asia is that western institutions “instrumentalize religious freedom to promote their own pre-existing frameworks and agendas.” This, she said, is “increasingly taking place.”

Katherine Marshall, Senior Fellow at the Berkley Center at Georgetown University, reported on the research of a Georgetown University project, the  World Faiths Development Dialog, and the Joint Learning Initiative. It attempted to look at how religious communities around the world are responding to the coronavirus crisis. “What has changed fundamentally?” she asked, with religious communities.

She observed that according to the Pew Research Center, 84% of the world’s population has some religious affiliation, so the response of religious communities to this crisis is important. She believes that with religious communities, the “most immediate challenge is vaccination.” Many religious communities are supportive of this, although there is some resistance.

Overall, the project looked the impact of the pandemic in five major categories: 1) religious gathering, 2) religious practices, 3) humanitarian activities, 4) conflict related to religion, and 5) permanent changes in religious belief and practice.

She said that the vast majority of religious communities have seen the desirability of restrictions on religious gathering, although there has been some resistance. This is natural, since coronavirus restrictions themselves vary, from complete prohibition of religious gathering to distancing and mask mandates.

Secondly, with respect to religious practices, she said that the greatest pain has resulted from restrictions on funerals, but also weddings and singing. An important question is “what is essential” – this is in large measure a social judgment, Marshall said.

Thirdly, the humanitarian response has been one of extraordinary mobilization by religious communities to respond to human need resulting from the pandemic. There are two million coronavirus orphans by some estimates, she said. This has resulted in some issues with orphanages, and “how religious communities view and handle children who have lost caregivers.” The project found that the coronavirus era and lockdowns have also seen an increase in domestic violence, and also child marriage, the latter of which is also an issue for some religious communities.  

In the fourth area – conflict related to religion, which was also characteristic of the Black Death in late medieval Europe, Marshall said – there is “overall indication that conflicts have in fact increased during the pandemic period.”

Finally, with regard to lasting change, Marshall asked, is this a turning point? She said that “we’ve lost huge progress in fighting poverty, in developing healthcare systems, in education.” It seems that “new ways to rebuild” are needed. The Vatican established Covid Commission to deal with the effects of the pandemic, however, it was done with no understanding when founded of the size of the crisis, and its duration, There have been parallel efforts in other religious communities, she said.

The coronavirus pandemic has provided avenues for governments and government officials hostile to particular religions or religion in general to restrict or prohibit the functioning of religious institutions. Since, as Rienzi pointed out at the beginning of the first panel, much essential religious activity does happen through religious institutions, the pandemic has posed a major threat to religious freedom. Recognizing religious activity as an essential activity in society, with its content to be determined by religious doctrine, not state doctrine, will be crucial to protecting institutional religious freedom in the future.