1 Introduction
The global COVID-19 pandemic resulted in unprecedented legal restrictions on acts of collective religious worship across the whole world. These restrictions generated considerable conflict, even violence, in many countries. In a report released late in 2022, the Pew Research Center found that in 23 percent of the 198 countries surveyed, authorities had used physical means (that is, arrests and prison sentences) to enforce restrictions on religious groups.1 In many ways, existing government restrictions and social hostilities were simply exacerbated by the pandemic. Minorities who are already subject to discrimination were subjected to additional discriminatory policing. Old prejudices found newer manifestations, as, for example, in the extent to which Jewish people were blamed for spreading the virus in many countries. But the report also contains evidence of new levels of tension. In over a third of the world’s countries, one or more religious groups defied pandemic-related public health rules, and in a quarter, religious groups started litigation or spoke out publicly against the measures. A common cause of complaint was the sense of injustice in being made subject to restrictions from which some secular social activities—deemed “essential” by governments—were exempt.
The COVID-19 pandemic provides an important case-study in the legal protection of religious group autonomy under pressure. It enables us to see how arguments from autonomy fare in the context of litigation, and to consider how best to give those arguments legal expression under modern conditions. In some respects, the case law generated by the pandemic is far from ideal. The pandemic itself developed rapidly, resulting in an unprecedented volume and pace of regulatory change as governments sought to impose and then lift restrictions. The factual matrices giving rise to litigation had often changed even in the context of expedited processes, rendering the points of law in
Nevertheless, looking at the case law through the lens of religious group autonomy immediately reveals a rather surprising point. In recent decades, such arguments have found their most common application in the context of the employment of ministers of religion.3 At the very least, religious groups cannot be held to the same standards of religious nondiscrimination as secular employers. Having a particular religion or belief is a central qualification. Other protected characteristics of antidiscrimination law are not far behind—think of male-only and celibate vocations to the priesthood. Beyond the specific context of nondiscrimination, a good case can be made that the entire modern employment law framework inappropriately distorts the nature of the relationship between a minister and his or her religious group, colorfully indicated by the claim that a minister works for God, not the church. Such arguments can be found in a number of jurisdictions, but they have arguably made the most headway in the United States, where the Supreme Court has established extensive immunities for religious groups from secular scrutiny of employment decisions.4
However, arguments based on religious group autonomy barely figured in the COVID-19 judgments of the Supreme Court. On the other hand, in the United Kingdom, where the “ministerial exception” is rather more limited, arguments from group autonomy were at the forefront of claims made by religious litigants. In the main Scottish case, the argument made considerable headway. However, the difficulties the judge had in applying it are instructive for the nature and content of that principle more generally, and indeed help explain its absence in the U.S. context. We shall see that religious group autonomy in its strong, “jurisdictional” form is hard to sustain as a principle of modern
Such a move is easier to make in the European context, where fundamental constitutional rights are typically understood to trigger proportionality analyses. These seek to balance the interests of claimants and the public interest.6 Yet even here there is a need for further doctrinal development. When courts undertook proportionality analyses in relation to COVID-19 restrictions, they did so primarily by reference to the substantive interests at stake, such as the religious imperative to gather in person for collective prayer, worship, and the administration of sacraments on one hand, and the risk of the transmission of disease on the other. Religious group autonomy conceived as a principle of self-government adds another layer of complexity. The proper question is not simply whether restrictions on collective acts of worship are justifiable given the balance of interests at stake, but whether the degree to which religious authorities are subject to state regulation in balancing the interests at stake for themselves is justifiable. Proportionality analysis, or balancing, needs to be applied in a way which is sensitive to the relative expertise and legitimacy of the parties before the court.
This idea is familiar enough when courts are reviewing the decisions of legislatures and executive agencies. Indeed, such arguments figured significantly in cases where courts found pandemic restrictions warranted. Understood as a principle of self-government, religious group autonomy demonstrates that such arguments cut both ways. Theological expertise and ecclesiastical legitimacy are also relevant to proportionality analysis, and these point to a narrowing of the scope of governmental powers.
COVID-19 cases before the U.S. Supreme Court appeared on the “shadow docket” of listings for injunctive relief, and in some cases no majority reasoning was offered. Nevertheless, they quickly became mired in the politics of judicial appointments. In the early cases, before the death of Ruth Bader Ginsburg in 2020, the Court consistently ruled 5–4 in favor of governmental restrictions, Chief Justice John Roberts siding with the Democrat-appointed four on grounds of deference to government discretion in responding rapidly to an unprecedented public health crisis.7 Nevertheless, powerful dissents, such as that of Justice Brett Kavanaugh in the Calvary Chapel case, were an indication of future change. In that case, the state of Nevada had provoked the understandable frustration of religious groups by subjecting businesses such as casinos to a 50 percent occupancy limit, but religious meetings to a fifty-person cap. Once Justice Amy Coney Barrett had taken up her appointment, the balance of power shifted, and religious groups started to record wins.8
Quite apart from the controversy triggered by a topic which has so quickly become enmeshed in wider culture wars, legal scholars have debated vigorously whether the approach of the new Republican majority represents a departure from, or development in, the Supreme Court’s previous case law. As is well known, that case law is dominated by the problematic interaction between the Free Exercise and Establishment Clauses of the First Amendment, which itself reflects the complex relationship between liberty and equality. Case law from the 1960s onward had suggested that regulations burdening the free exercise of religion—even facially neutral provisions—should be subjected to “strict scrutiny,” a very demanding test.9 In order to trigger strict scrutiny, there needed to be some discriminatory treatment of religion, such as an exception, targeting, or animus.10 But in Employment Division v Smith, the Court controversially held that neutral and generally applicable provisions were presumptively constitutional, subject only to “rational basis review,” a very easy test to satisfy.11 In
The COVID-19 cases concerned complex regulatory regimes in which collective religious worship has been one of a range of social activities subjected to restriction. The doctrinal question is whether the shift from rational basis to strict scrutiny tests in the Court’s COVID-19 decisions represents an application of Smith, a departure, or a limit. One could take the view that both the liberal and the conservative approaches are simply applications of Smith in which the justices disagree on the facts. The question is basically one of nondiscrimination. If religious groups have been subjected to standards which are common to a range of nonreligious social activities, and there is some rational basis for the set of restrictions applied to that set of activities, then the regime as a whole passes constitutional muster. But there is plenty of scope for disagreement as to whether religious groups have been subjected to the same standards. It all depends on the choice of the comparators. Conservatives could typically point out that religious worship was subjected to stricter standards than, say, retail businesses, and liberals could typically point to similar restrictions on concerts and cinemas. Egregious cases of antireligious discrimination—as, for example, in the decision by the mayor of Washington, DC, to proscribe outdoor religious gatherings while promoting political rallies—were relatively rare.12
However, the COVID-19 cases did not simply reduce to arguments about the most appropriate secular comparators. In his dissent in Calvary Chapel, Justice Kavanaugh sought to restructure the problem by requiring state authorities to justify the absence of religious groups from any regime of exemptions. He preserved the two-stage structure of Smith but held that the exclusion of religious groups from the most privileged secular category would then trigger the need for “substantial justification” based on a “compelling reason.” The comparator still returned at the second stage, since the presence of a less-regulated secular analogue would cast doubt on the legitimacy of the purported justification, but it played a much less significant role. This approach creates a strong presumption against the exclusion of religious groups from the “most favored”
“Most favored nation” approaches to religious liberty work well enough in cases of individual conscience. If a state is willing to allow a man an exception to a no-beards rule for medical reasons, it cannot treat religious reasons for wearing a beard as having any lesser status. It is the mere existence of the beard which undermines the state interest in hygiene, regardless of the reason for wearing one. But it is not obvious how such theories operate in the context of a spectrum of different activities and restrictions. The fact that one is allowed to leave one’s house to buy food is relevant to the prohibition on leaving to attend an act of religious worship only if in some sense the activities are comparable in the threat they pose to public health. It would be no argument that restrictions on public worship are not unconstitutional because people can still pray and sing at home with the members of their family. That fact is simply irrelevant. Perhaps the more plausible view is that Smith was only ever intended to address cases of individual conscience in relation to identical acts and omissions, and not core activities of religious groups. On this account, the COVID-19 cases demonstrate the limits of Smith rather than either an application or a departure.
From a European perspective, the U.S. Supreme Court COVID-19 case law in relation to collective worship suffers from two connected weaknesses. First, there is a familiar structural point. In theory, both strict scrutiny and rational basis review allow for balancing, which is to say a consideration of competing reasons for and against restrictions on liberty. However, they each approach that exercise with the scales heavily weighted. This in turn throws all the emphasis back on the earlier, comparator stage, in which the search is for a presumptive rule to determine the case. This bifurcation between religious liberty
More specifically, the influence of Smith unhelpfully prioritizes comparability with secular activities. COVID-19 regulations severely restricted acts of collective religious worship which were in many cases central to the religious life and obligations of worshippers. The question is whether such restrictions are inherently justified or not, given what was at stake in terms of public health. An excessive restriction is not cured because other, nonreligious activities are treated equally badly. There is undoubtedly a place for comparators in the process of justification, but the question is better framed as one of civil liberty rather than nondiscrimination. This not only requires careful tailoring to minimize intrusion into the collective life of the religious group, but it also requires account to be taken of internal measures to reduce risk. Indeed, construed as a positive obligation as well as a negative limit on intervention, it requires governments to encourage and promote responsible internal decision-taking. The nuanced review which this requires can be facilitated by the more flexible approach offered by proportionality.15
3 Religious Group Autonomy and COVID-19 in British Courts
Strong accounts of religious group autonomy can be found in both English and Scottish litigation by religious groups challenging COVID-19 restrictions. The English cases never reached court, because on two occasions restrictions were lifted before the cases were heard. In the early stages of the first national lockdown (imposed from March 26, 2020) there was initial acceptance of the need for immediate and drastic measures until the implications of the new disease should be clearer. Indeed, many churches adopted stricter restrictions than
Rather, our clients’ concern is that, as a matter of principle, the imposition of appropriate anti-epidemic measures in the Church is ultimately a matter for Church authorities rather than secular state authorities.
Whatever difficulties may sometimes arise in drawing a precise boundary between temporal and ecclesiastical matters, there is no doubt, and has never been any doubt, that closure and opening of churches for services and rites is a matter for ecclesiastical authorities and not for temporal ones.
The letter went on to refer to “self-regulation” on the part of the church and to emphasize the extreme importance of the constitutional “principle of Church autonomy.”
Taken literally, these claims were vastly overinflated. They suggest that even Parliament has no constitutional competence to impose any restrictions on religious groups acting within their own sphere. This would turn them into fully autonomous legal systems—islands of immunity within the common law—which could be invited to regulate their actions for the common good, but not legally required to do so. However, the argument was never refined or tested, because the government responded by inviting the church leaders to roundtable discussions, and soon afterwards collective worship was permitted with social distancing and other health measures in place.18
Under the second national lockdown, in autumn 2020, collective worship was once again prohibited in England and Wales. Although the prohibition proved to be relatively brief, it was long enough for legal proceedings to be revived and presented in a more developed form, although, once again, the
This argument is no longer based on religious group autonomy. The claimants clearly accepted, as they had to, that Parliament has the authority to make law regulating religious worship. Moreover, they accepted that state authorities, including administrative and judicial bodies, are competent to assess the balance of interests between churches and the general public. Far from presenting a radical claim based on group autonomy, it adopted familiar formal and substantive arguments for collective religious liberty. It was therefore no different from other judicial review actions, including one brought by the chairman of a Bradford mosque. These, too, failed in part and in other respects ran out of time, albeit with strong hints from the judges concerned that the claimants would ultimately have failed in substance as well.21
The Scottish government had not closed places of worship during the second national lockdown; however, early in 2021, at the start of the third lockdown, the roles reversed. While places of religious worship were allowed to remain open for collective worship elsewhere, in Scotland they were closed. This continued until, on March 24, 2021, legal action resulted in a ruling from Lord Braid in the Outer House of the Court of Session that in some respects the
Lord Braid’s extensive discussion of church autonomy took as its starting point the agreement between both parties on the basic constitutional principle that the church (and religious groups more widely) has exclusive jurisdiction in spiritual matters, while the state has exclusive jurisdiction in civil matters. He accepted that the Church of Scotland Act 1921 is declaratory of a centuries-old constitutional tradition, found most notably in the General Assembly Act 1592 and the 1707 Articles of Union with England, that the church has “the right and power subject to no civil authority to legislate, and to adjudicate finally, in all matters of doctrine, worship, government and discipline in the church.”23 It is significant that the articles in which those words are found are not authorized by Act of Parliament but recognized as declaratory of the constitutional position, making the mutual independence of church and state deeper than the sovereignty of Parliament. Section 1 of the act even makes a sustained effort to entrench it against future change.
The problem lay in determining on which side of the line a general prohibition on collective worship lay. As Lord Braid rightly concluded, the question is unanswerable. On one hand, it is harder to imagine a greater interference with the right of the church to determine its own forms of worship than to ban it altogether. On the other hand, the protection of the public health of all citizens is surely a civil matter, fully within the competence of government. Lord Braid pointed out that it was a logical consequence of the argument from autonomy that only the church could have the power to order the closure of a church building for any reason, including public health reasons. If a religious group refused to do that, the government would be powerless. That was an unacceptable conclusion for him. In any case, the petitioners conceded that the state could legitimately order a 24/7 curfew on the streets surrounding the church if such a draconian measure were unavoidable. This would of course have the effect of making worship impossible in fact, although not prohibited in law.
The fact that the argument from church autonomy was made and considered in the strongest possible terms proved fatal to its success. In order to achieve autonomy in relation to worship, the claimants were forced to argue that the geographical space within which worship takes place has to be treated as an island of independent jurisdiction, immune from state regulation. The state
One might think that this rather overstates the problem. After all, the Scottish government was not attempting to tell churches and religious groups how to worship; they simply proscribed the gathering for any sort of worship. What the church has exclusive jurisdiction over is the mode of worship. It would, admittedly, be unconstitutional of the Scottish government to display any sort of theological preference for one form of worship or another, but they did not do that.
However, this move does not solve the problem. To start with, the ban on collective worship was, in one perspective, very clearly a preference for one type of worship over another, since the Scottish government took comfort from the fact that people could still engage in acts of worship online. The question of whether worshipping online is an acceptable substitute for the physical presence of the worshipper is a theological one which stimulated debate within many Christian denominations. Moreover, it would be easy to imagine circumstances in which government policy might touch in a more nuanced way on what is and is not permissible as a matter of worship. One only needs to consider acts such as the consumption of wine from a common cup, or, indeed—an example at stake in the Scottish litigation—the legality of a ban on singing.
In the end, two basic points determined Lord Braid’s rejection of a jurisdictional approach to church autonomy. On one hand, if the state ordered the closure of every church in the land without good reason, that would be straightforwardly unconstitutional. On the other hand, restrictions on worship could not be unlawful if they pursued a legitimate state purpose. So the case turned on the potential justification of policies by reference to accepted public goods. Having reached that point, the adoption of proportionality analysis was inevitable. The main factor leading to his finding that the restrictions were disproportionate was the willingness of the Scottish government to open indoor jury centers in cinemas. The government had failed to explain why they had preferred the right to a fair trial over the right to freedom of religion or belief.24 In the end, then, the resort to a comparator to undermine a purported secular justification brought his reasoning close to that of U.S. courts.
4 The Origins and Nature of Religious Group Autonomy: from “Jurisdiction” to “Self-Government under Law”
Scholars of law and religion, especially those with an interest in historical dimensions of their subject, such as John Witte, Jr., whose work we honor with this volume, have regularly reminded their modern readers of the origins of civil liberty in the plural structure of European society.26 Christianity was distinctive among religions in positing an institutionalized distinction between church and government. In 494, Pope Gelasius I famously claimed that Christian society was governed by two swords, not one.27 The church had a rightful
The fact that medieval Europeans could think in terms of two distinct social institutions operating according to two distinct branches of the ius commune—canon law and civil law—inevitably generated intense scrutiny over questions of competence and jurisdiction. The conflicts between church and state are well known, expressed most vividly in the career and demise of Thomas Becket, first the compliant lord chancellor and then the intransigent archbishop of King Henry II. It could also produce the memorable first article of Magna Carta from the pen of Archbishop Stephen Langton: “the church in England shall be free and have its rights undiminished and its liberties unimpaired.” This was not religious liberty in the modern sense; it was a bid for the jurisdictional autonomy of the Catholic Church based on a theory of political authority which descended from God, through the pope and church, to civil rulers.30
To this essentially negative argument can be added a more positive case. The processes of secularization have produced structural differentiation within society which enable individuals to join with different groups in different
Although medieval Christian peoples were governed by two main public institutions with their own bodies of law, those two bodies of positive law were themselves only branches of a single fundamental law, the law of nature, which was the representation of God’s eternal decrees in terms accessible to all human beings. Christians had the added advantage of accessing the eternal law through the divine law of scripture. While there was tension in the reach and relationship of church and civil government, there was also an underlying harmony of purpose in theory, and a considerable intertwining in practice. The trope of a harmonious hierarchy of laws—law of God, law of nature and human law—remained dominant in English case law up to the mid-seventeenth century, and in a few areas such as family law much later still.
In modern times, which for purposes of political theory can be dated from Jean Bodin’s (1530–1596) revolutionary account of state sovereignty and Hugo Grotius’s (1583–1645) revolutionary restatement of natural law theory, the ultimate unity of law became inextricable from the legitimacy of the state. The Enlightenment which followed culminated in the formidable philosophical restatement of Immanuel Kant. As he so cogently argued, law is rendered morally necessary by our recognition that when human beings come into proximity, the way we necessarily affect and restrict each other’s movements requires moral justification.34 Once I start to assert control over objects in the material world, the conflict between our wills becomes even more intense. To put the
On such a view, fundamental or constitutional rights can only ever have presumptive status. They must remain potentially subject to being overridden by the imperatives of the national interest, and those imperatives cannot but be determined by the representatives of the entire nation. Any limitation of state jurisdiction in favor of the “autonomy” of a social group can only ever be a grant or recognition of lawmaking power subject to recall at any point if the group exercises its independence to the detriment of the public. Kant says this expressly in relation to the religious and military orders of late eighteenth-century Prussia.35 The only type of autonomous normative system imaginable has to be territorially distinct, and even here it must be bound into an inter-state system of law. Thus, even if the Vatican has managed to sustain a claim akin to statehood in the international legal order, the Roman Catholic Church within any individual state is subject to its laws and legal forms. The device of the concordat mitigates the implications of this subordination by securing agreement on protected powers and liberties while preserving the form of a negotiated settlement between sovereign powers, but it cannot remove it entirely.
The unity of the modern law-state presents a challenge for accounts of religious group autonomy. On one hand, we may be persuaded that authority within society is plural, expressed through the collective life of distinct groups which gain their legitimacy directly from their members. On the other hand,
As a result of developments in the judicial role in the later eighteenth century in which judges cast themselves as defenders of presumptive natural rights against Crown prerogatives, common law jurisdictions were considerably better placed to develop a law of social groups than were civilian ones.42 Gierke was correct that the first and most important legal expression of group autonomy is its juridical personality. Although incorporation was a privilege enjoyed by custom only by the established church and later granted by Crown or Parliament, equivalent effects could be achieved by the device of the trust, unknown to civilian systems. Combined with the concept of office-holding—also ultimately derived from ecclesiastical paradigms—this enabled English courts in the eighteenth century to develop a law for legally tolerated religious congregations which secured a high degree of autonomy under ultimate judicial oversight.43 Once it was also accepted that such congregations could effectively bind themselves into larger regional and national associations, a form of internal lawmaking was available to religious groups which provided a private law analogue to the public law of the established church.44
Language of “two kingdoms” or “sovereign spheres” naturally suggests a jurisdictional conception of religious group autonomy. There is some truth in the parallel with statehood in the sense that the internal law of religious groups can have a similar status to foreign law: effective within its domain, and to be proved as a fact before a court by the admission of expert testimony. But it has already been pointed out that the parallel with statehood is also unhelpful: religious groups do not control their property in the way that a state governs its territory. Moreover, the competence of a religious group is not parallel to that of the state, in the way that the competence of the British state parallels that of the United States. Rather, religious groups and states are concerned with distinctive subject matters, such that the business of one is not the business
To some extent, the distinction between spiritual and civil makes perfect sense. The fact that the local priest has just delivered an unorthodox sermon discloses no cause of action in the civil courts; if I fall out with my employer, my remedy does not lie in church courts. But the underlying problem is that life cannot be carved up so neatly. The COVID-19 pandemic raised legal questions which fell squarely within both domains. And as those cases predictably demonstrate, when civil courts are faced with a matter which has both spiritual and civil dimensions, the tendency is for the latter concerns to predominate.
However, every now and then one can observe the reverse process in operation. On occasion, courts have been so impressed by the argument that the relationship between a religious minister and his or her organization is spiritual that they have concluded that it is not legal at all.45 It must then be a purely voluntary arrangement which produces no enforceable rights on either side. This might not seem so very bad, since religious workers are often volunteers, but when the same logic is applied to questions of property, it has bizarre consequences. In recent English litigation concerning the control of a Sikh temple, the High Court and Court of Appeal both refused to determine which of two rival groups was the rightful owner. It took the Supreme Court to restore common sense. A civil court must be able to resolve a property dispute, even if it is required to explore the depths of unfamiliar and complex theological arguments to do so fairly.46
A jurisdictional view of religious group autonomy is unstable precisely because the binary opposition it appears to posit between spiritual and civil matters is untenable.47 In classical canon law terms, it fails to account for the existence of res mixta: those matters which have a dual dimension. Religious liberty does not depend ultimately on being left alone by the state and its law. Instead, it requires the existence of distinctive bodies of civil law which protect the rights of self-government. In technical terms, these rights are powers not
Conceiving of religious group autonomy as the legal powers of self-government shows how it can have continuing relevance even in cases which concern both spiritual and civil matters. This point has numerous contemporary applications, for example in the ongoing discussions and development of vicarious liability for abuse within institutions. But the COVID-19 case law raises a different general problem: given that some sort of balancing of interests is inevitable in areas of overlap, how can the self-government of religious groups be integrated doctrinally with proportionality analysis?
5 Proportionality and the Self-Government of Religious Groups
We can take as a starting point the two COVID-19 judgments of the German Federal Constitutional Court.48 Germany is, after all, the home of proportionality both historically and theoretically. The court refused to issue an injunction against the initial blanket ban on religious services in Hessen, but a fortnight later it found the restrictions in Lower Saxony unconstitutional to the extent that they made no provision for individual permissions to be granted if the religious group making the application could demonstrate to the regional authorities that it had put in place sufficient protective measures. The applicant mosque had gone to considerable lengths to enable Friday prayers to take place safely during Ramadan, and the high importance of religious liberty meant that the mosque should have the opportunity for gaining an administrative permission.
The directness and authority of the Court are clearly evident in the judgments. It makes its own decision about the validity of the legislative regimes introduced in Hessen and Lower Saxony, and it seems to have no inhibition in assessing the severity of the impact on religious believers or the costs to public health. This assumes some common public scale of values by which we can agree on the importance of spiritual acts in relation to common secular concerns. While the Court sought to protect collective religious liberty in the
This type of approach is vulnerable to the pressures of secularization. Since the importance of religious liberty depends on some recognition of the value of the religious acts at stake—celebrating the Mass, praying together—these are relatively easy to dismiss as idiosyncratic and lightweight in comparison with human life and health.49 British judges applying proportionality analysis were rather more cautious about their ability to weigh the relevant interests. Two distinct strands can be seen to this caution. The more common—and this can also be found in COVID-19 cases in many other jurisdictions—is a degree of deference toward scientific assessment of the extent of the health risk and the various ways in which those risks may be mitigated. In the main case before the English Court of Appeal, the judges also directed attention to the accountability of the government to Parliament in what was ultimately a matter of political judgment.50
Elsewhere I have argued that these two types of judicial caution can be distinguished as deference to expertise and restraint in the face of superior legitimacy.51 They apply particularly in relation to the final two stages of the proportionality test. When asking if a restriction on rights is the least necessary or involves minimal impairment, judges are often faced with questions of factual assessment and prognosis in areas of expertise which they may well lack. They are more likely to reach correct outcomes if they rely on experts. Given that their capacity to consider extensive depositions from expert witnesses is limited, evidence that the government has fulfilled that responsibility before concluding that a measure is necessary tends to show that it is, indeed, necessary. As for the final stage of analysis, when asking if a balance of interests or values is correct for the purposes of the law, a democratically accountable determination enshrined in primary legislation may well have more legitimacy than an individual judge’s personal views. Taken to an extreme, deference and restraint have the effect of radically qualifying the final stages of proportionality review, turning it into something akin to “Wednesbury reasonableness”
While some people may derive some benefit from being able to observe on-line services, it is undeniable that certain aspects of certain faiths simply cannot take place, at all, under the current legislative regime: in particular, communion; baptism; and confession, to name but three. It is impossible to measure the effect of those restrictions on those who hold religious beliefs. It goes beyond mere loss of companionship and an inability to attend a lunch club.52
The idea that the weight of interference is “impossible to measure” might suggest that it has an absolute value, but the following sentence shows that it is really an admission of incompetence. The judge can only depend on the sincere testimony of the believer as to the spiritual significance of the prohibited acts. This may be very important—as important as eating and drinking.
Tentative steps in this direction were already taken in the United Kingdom during the COVID-19 pandemic, although one suspects that the meetings hastily arranged between government representatives and religious leaders were as much about securing compliance as a genuine effort in dialogue. Models of partnership in reaching an agreed regulatory approach to matters of common concern are more associated with Tony Blair’s “New Labour” ministry of 1997–2007,53 but a recent attempt to reinvigorate them can be found in the report of the (Conservative) government’s independent faith engagement adviser.54 Here one finds calls for a new “proactive partnership” to include “regular roundtables with senior, serious and national faith leaders” and “consistent, quality faith literacy learning” for everyone on the public payroll.
This shows a better route forward than “most favored nation” approaches to free exercise alone. One suspects that in his desire to downplay the role of comparators, Justice Kavanaugh was struggling to reconcile his libertarian instincts with the egalitarian framing of Smith. This dissatisfaction with Smith is even more apparent in the recent opinions of Justices Samuel Alito and Neil
6 Conclusion
The constitutional principle of religious group autonomy is present within many liberal democracies, but not securely so. The value of social pluralism is patent, but its reconciliation with modern unified systems of law problematic. Jurisdictional accounts do little to help the situation, being unattractive in theory and unworkable in practice. Paradoxically, they seem both to defend an unwarranted immunity for religious groups from legal oversight while also disempowering them. By contrast, conceiving of religious group autonomy as a power of self-government within the law holds out the hope of reconciling liberty with responsibility. In this chapter I have started to work out the implications of such an approach for proportionality-based assessments of religious-liberty restrictions in the context of pressing public interests. This analysis holds out hope that a similar approach may also be fruitful in other areas of unavoidable state-religion interaction.
Acknowledgments
I am most grateful to Kathleen Brady, Jonathan Chaplin, and Rafael Domingo for their insightful comments on an earlier draft.
Pew Research Center, “How COVID-19 Restrictions Affected Religious Groups Around the World in 2020,” Nov. 29, 2022.
Mark L. Movsesian, “Law, Religion and the COVID-19 Crisis,” Journal of Law and Religion 37 (2022): 9–24.
See, above all, the seminal work of Douglas Laycock, “Towards a General Theory of the Religion Clauses: The Case of Church Labor Relations and the Right to Church Autonomy,” Columbia Law Review 81 (1981): 1373–417; and id., “Church Autonomy Revisited,” Georgetown Journal of Law and Public Policy 7 (2009): 253–78.
Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 US 171 (2012); Our Lady of Guadalupe School v. Morrissey-Berru, 140 S. Ct. 2049 (2020). For a comparative introduction, see Pamela Slotte and Helge Årsheim, “The Ministerial Exception—Comparative Perspectives,” Oxford Journal of Law and Religion 4, no. 2 (2015): 171–98.
An exploration of the range of possible judicial oversight in relation to religious ministers, appropriately framed in this way, is Paul Billingham, “The Scope of Religious Group Autonomy: Varieties of Judicial Examination of Church Employment Decisions,” Legal Theory 25, no. 4 (2019): 244–71.
In the context of the ministerial exception, see Emma Svensson, “Religious Ethos, Bond of Loyalty, and Proportionality—Translating the ‘Ministerial Exception’ into ‘European,’” Oxford Journal of Law and Religion 4, no. 2 (2015): 224–43.
South Bay United Pentecostal Church v. Gavin Newsom, 590 U.S. _ (2020); Calvary Chapel Dayton Valley v. Steve Sisolak, 591 U.S. _ (2020); Danville Christian Academy v Beshear, 592 U.S. _ (2020).
Roman Catholic Diocese of Brooklyn v. Andrew M. Cuomo, 592 U.S. _ (2020); South Bay United Pentecostal Church v. Gavin Newsom, 590 U.S. _ (2021); Tandon v Newsom, 593 U.S. _ (2021).
Sherbert v Verner, 374 U.S. 398 (1963).
Church of the Lukumi Babalu Aye v City of Hialeah 508 U.S. _ 520 (1993).
Employment Division v Smith, 494 U.S. 872 (1990).
Capitol Hill Baptist Church v Muriel Bowser 496 F. Supp. 3d 284 (D.D.C. 2020).
The analogy of “most favored nation status” was drawn from Douglas Laycock, “The Remnants of Free Exercise,” Supreme Court Review 1 (1990): 49–50.
Luray Buckner, “How Favored Exactly? An Analysis of the Most Favoured Nation Theory of Religious Exemptions from Calvary Chapel to Tandon,” Notre Dame Law Review 97, no. 4 (2022): 1643–67. An alternative route to a similar outcome is offered by Mark Storslee, “The COVID-19 Church-Closure Cases and the Free Exercise of Religion,” Journal of Law and Religion 37 (2022): 72–95.
This point is implicit but clearly present in Kathleen A. Brady, “COVID-19 and Restrictions on Religious Worship: From Nondiscrimination to Church Autonomy,” Fides et Libertas (2021): 23–41.
Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, reg. 5(6).
Letter before claim of May 28, 2020, CC-Resource-Misc-Judicial-Review-Opening-Churches-200529.pdf (christianconcern.com).
Permission was refused for an expedited hearing on June 26; the prohibition on opening for public worship was lifted on July 4.
The Coronavirus Act 2020 s. 52 and Schedule 22 contained more precise powers to prohibit or restrict events, gatherings, or entry to premises. In the event, it was not used to ban religious gatherings, and it is no longer in force.
R (Hussain) v Secretary of State for Health and Social Care [2020] EWHC 1392 (Admin); R (Dolan) v Secretary of State for Health and Social Care [2020] EWCA Civ 1605; R (Hussain) v Secretary of State for Health and Social Care [2022] EWHC 82 (Admin). See also the Privy Council decision in Maharaj v Attorney General of Trinidad and Tobago [2022] 3 WLR 309.
Revd. Dr. William Philip v Scottish Ministers [2021] CSOH 32. For a discussion of the constitutional aspects, see Jamie McGowan, “Public Health, Proportionality and the ‘Freedom of the Halie Kirk’: On Philip v Scottish Ministers,” Public Law (2022): 454–553.
Church of Scotland Act 1921, Schedule 1, para. IV.
Philip, [114]–[116].
See Percy v Board of National Mission of the Church of Scotland [2005] UKHL 73, [2006] 2 AC 28.
See especially his monographs: God’s Joust, God’s Justice: Law and Religion in the Western Tradition (Grand Rapids: Eerdmans, 2005); The Reformation of Rights: Law, Religion, and Human Rights in Early Modern Calvinism (Cambridge: Cambridge University Press, 2007); Church, State, and Family: Reconciling Traditional Teachings and Modern Liberties (Cambridge: Cambridge University Press, 2019); Faith, Freedom, and Family: New Essays on Law and Religion, eds. Norman Doe and Gary S. Hauk (Tübingen: Mohr Siebeck, 2021); The Blessings of Liberty: Human Rights and Religious Freedom in the Western Legal Tradition (Cambridge: Cambridge University Press, 2021); and Religion and the American Constitutional Experiment, 5th ed. (Oxford: Oxford University Press, 2022).
Gelasius I, “Letter to Emperor Anastasius,” reproduced in part in Oliver O’Donovan and Joan Lockwood O’Donovan, From Irenaeus to Grotius: A Sourcebook in Christian Political Thought (Grand Rapids, MI: Eerdmans, 1999), 179.
The idea that the church was uniquely tasked with the rational administration of welfare can be found already in the writings of Ambrose of Milan (339–397). For its longer-term impact, see, for example, Larry Siedentop, Inventing the Individual: The Origins of Western Individualism (London: Penguin, 2015).
Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition (Cambridge, MA: Harvard University Press, 1983).
The classic account of medieval debates between “descending” and “ascending” theories of authority is Walter Ullmann, Principles of Government and Politics in the Middle Ages, 2nd ed. (London: Methuen, 1966).
Steven Smith, “The Jurisdictional Conception of Church Autonomy,” in The Rise of Corporate Religious Liberty, ed. Micah Schwartzman, Chad Flanders, and Zoë Robinson (Oxford: Oxford University Press, 2016).
It is appropriate to refer here to the many international projects on the place of corporate religious freedom in the Jewish, Christian, and Muslim traditions, and in modern frameworks of democracy and human rights, led by John Witte, Jr. in his role as director of the Emory Center for the Study of Law and Religion. See, especially, the major collections coedited by Witte: Christianity and Democracy in Global Context (Boulder, CO: Westview Press, 1993); Religious Human Rights in Global Perspective, 2 vols. (The Hague: Martinus Nijhoff, 1996); Proselytism and Orthodoxy in Russia: The New War for Souls (Maryknoll, NY: Orbis Books, 1999); Sharing the Book: Religious Perspectives on the Rights and Wrongs of Proselytism (Maryknoll, NY: Orbis Books, 1999); Christianity and Human Rights: An Introduction (Cambridge: Cambridge University Press, 2010); Religion and Human Rights: An Introduction (Oxford: Oxford University Press, 2012); and No Establishment of Religion: America’s Original Contribution to Religious Liberty (Oxford: Oxford University Press, 2012).
The term is taken from Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality (Oxford: Blackwell, 1985).
Patrick Capps and Julian Rivers, “Kant’s Concept of Law,” American Journal of Jurisprudence 63, no. 2 (2018): 259–94; and id., “Kant’s Concept of International Law,” Legal Theory 16 (2010): 229–57.
Immanuel Kant, The Doctrine of Right, General Remark B (AA 6:324), in The Metaphysics of Morals, ed. Lara Denis; tr. Mary Gregor (Cambridge: Cambridge University Press, 2017), 108.
Otto von Gierke, “The Nature of Human Associations,” in The Genossenschaft Theory of Otto von Gierke: A Study in Political Thought, ed. John D. Lewis (Madison: University of Wisconsin, 1935), Appendix C.
See Victor Muñiz-Fraticelli, The Structure of Pluralism: On the Authority of Associations (Oxford: Oxford University Press, 2014); and Jacob T. Levy, Rationalism, Pluralism, and Freedom (Oxford: Oxford University Press, 2015).
J. N. Figgis, Churches in the Modern State (London: Longmans, Green and Co., 1914).
Gierke’s retrieval of the covenantal political thought of Johannes Althusius is important in this context, even if, as Jonathan Chaplin points out, Gierke read Althusius in a way which was not entirely congenial to Kuyper. See Jonathan Chaplin, Herman Dooyeweerd: Christian Philosopher of State and Civil Society (Notre Dame, IN: University of Notre Dame Press, 2011), 368, n. 91. On the seminal figure of Althusius, see Witte, The Reformation of Rights, chap. 3.
See Abraham Kuyper, “Calvinism and Politics,” in his Lectures on Calvinism (Grand Rapids, MI: Eerdmans, 1931); discussion in Peter Heslam, Creating a Christian Worldview (Grand Rapids, MI: Eerdmans, 1998), 142–66.
Abraham Kuyper’s intellectual successor, Herman Dooyeweerd (1894–1977), made progress with this problem in his discussion of “enkaptic interlacements” between the laws of church and state. See Chaplin, Herman Dooyeweerd, 246–54.
See Julian Rivers, “Natural Law, Human Rights and the Separation of Powers,” in The Cambridge Handbook of Natural Law and Human Rights, ed. Tom Angier, Iain T. Benson, and Mark D. Retter (Cambridge: Cambridge University Press, 2023), 303–23.
I trace this development in Julian Rivers, The Law of Organized Religions (Oxford: Oxford University Press, 2010), 74–82.
This model received statutory expression in the legislation disestablishing the Anglican Church in Ireland and Wales. See Rivers, The Law of Organized Religions, 82–88.
See, for example, Khan v Oxford City Mosque Society, unreported, July 23, 1998. The development is discussed in Rivers, The Law of Organized Religions, 112–16.
Khaira v Shergill [2014] UKSC 33.
Steven Smith makes an important admission when he insists that the jurisdictional conception of church autonomy he professes to defend is not “absolute” and simply has a “stronger preemptive character” than a merits-based review. See Smith, “The Jurisdictional Conception of Church Autonomy,” 27.
Bundesverfassungsgericht, Beschluss der 2. Kammer des Ersten Senats vom 10. April 2020 (1 BvQ 28/20); Beschluss der 2. Kammer des Ersten Senats vom 29. April 2020 (1 BvQ 44/20).
See Julian Rivers, “The Secularisation of the British Constitution,” Ecclesiastical Law Journal 14, no. 3 (2012): 371–99.
R (Dolan) v Secretary of State for Health and Social Care [2020] EWCA Civ 1605 at [86] and [90].
Julian Rivers, “Proportionality and Variable Intensity of Review,” Cambridge Law Journal 65 (2006): 174–207.
Philip, [121].
See Rivers, The Law of Organized Religions, 296–305.
Colin Bloom, Does Government “Do God”? An Independent Review into How Government Engages with Faith, Department for Levelling Up, Housing and Communities, Apr. 26, 2023, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1152684/The_Bloom_Review.pdf.
Fulton v City of Philadelphia 593 U.S. _ (2021). (City’s refusal to renew fostering services contract with Roman Catholic agency on account of the latter’s refusal to certify same-sex couples is a breach of the Free Exercise Clause.)