Religious liberty and Covid 19: The US Supreme Court and the French Conseil d’Etat.

It is so easy to characterise the recent Supreme Court decision in Roman Catholic Diocese of Brooklyn v. Cuomo as the work of 5 judicial extremists. However, a good reason to shirk simplistic commentary came when a French court this week embraced very similar arguments. And not just any court – but the Conseil d’Etat, France’s supreme administrative jurisdiction (juge administratif suprême).

The facts on both American and French cases overlap considerably. Challengers in the US case – the Catholic diocese of Brooklyn and Agudath Israel of America (a group of Jewish synagogues) objected to 10- and 25-person occupancy limits on certain churches and synagogues adopted by the Governor of New York, Andrew Cuomo to contain coronavirus infections. In France, a similarly offending measure pushed several religious organisations and a Catholic prelate to seek recourse to the Conseil d’Etat. They were displeased by a 30-person limit for gatherings in religious buildings that had been imposed by the government in October 2020 as part of anti-COVID restrictions.

An important common feature was that both courts ruled in the face of rapidly evolving circumstances. In the US, Justice Stephen Breyer commented in dissent that “there is no need now” for the court to act, simply because the challenged restrictions had, in fact, recently been removed as they related to the religious sites in question (Breyer J, dissenting, 3). Across the ocean, the urgent applications judge (juge des référés) of the Conseil d’Etat similarly stepped in despite recognising that the impugned prohibition would possibly be “modified on 15 December” [para.20]. Yet why did judges on both sides of the Atlantic decide to act now?

The short answer is that both courts identified the religious rights implicated as too fundamental to be suspended. Submitting the challengers’ request to the familiar test for injunctions, the six-member majority in the US concluded that “The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty” [Per curiam, 5]. Likewise, their French peer made similarly bold comments, determining that this particular anti-COVID restriction constituted a “serious and manifestly illegal attack” on freedom of religion.[1]

In reaching this conclusion, the French judgement leaned on some pretty weighty texts (and which some of us might recall from high school history lessons], firstly invoking article 10 of the 1789 Declaration of the rights of man:  « Nul ne doit être inquiété pour ses opinions, même religieuses, pourvu que leur manifestation ne trouble pas l’ordre public établi par la loi ».[2] After quoting from the European Convention on Human Rights, the Court then cites article 1 of the historical 1905 law that separated church and State in the French republic, which holds that «La République assure la liberté de conscience. Elle garantit le libre exercice des cultes sous les seules restrictions édictées ci-après dans l’intérêt de l’ordre public »[3] The originalists on the US Supreme Court would assuredly gobble up this sprinkling of history with enthusiasm (and perhaps a nice French Sancerre).

In their precise reasoning, both courts approached the subject matter in similar fashion. I might single out two key concerns which emerged in Roman Catholic Diocese of Brooklyn: proportionality and discrimination. As to the first, the US Supreme Court noted that the New York law was not narrowly tailored to its goals:

“Not only is there no evidence that the applicants have contributed to the spread of COVID-19 but there are many other less restrictive rules that could be adopted to minimize the risk to those attending religious services. Among other things, the maximum attendance at a religious service could be tied to the size of the church or synagogue” [4].

In the French case, it becomes equally plain that a similar concern about proportionality helped carry the day. Indeed, the court seemed particularly concerned that the measure before it went too far, observing that the law in fact allowed secular authorities the freedom to “fix a ceiling departing from a level to be determined nationally [and] related to square metreage per person or to the capacity of religious buildings.”

On the subject of discrimination, the US Court was uncompromising, commenting that the New York rules “single out houses of worship for especially harsh treatment.” [p.3] For its part, the Conseil d’Etat followed in a similar vein, ruling that:

“.the prohibition of all religious ceremonies of more than 30 people, when no other other authorised activity is subject to such limitation fixed independently of the relevant site’s floor area ,would [not] be justified by the risks arising from these ceremonies.”[4] [my emphasis]

Further, like some of the concurring judgements in Roman Catholic Diocese of Brooklyn, which excoriated a rule according to which it was “unsafe to go to church, but it is always fine to pick up another bottle of wine, shop for a new bike, or spend the afternoon exploring your distal points and meridians” [Gorsuch, concurring, 2], the French Court put similar emphasis on disparate treatment between secular and religious activities. Therefore, while acknowledging the government’s submission that gatherings and meetings exceeding 6 people were forbidden without exception in public places, and that certain public establishments besides churches remained closed, the Court put a premium on religious rites over commerce, ruling that “the activities in these [secular] places are not of the same nature and the fundamental freedoms engaged are not the same.”[5]

Unlike the American decision, the upshot of the French court’s determinations will be real change, for the Court gave the Prime Minister three days to adopt «strictly proportionate measures for the management of gatherings and meetings in religious establishments. » [6] The deadline for this was 2nd December 2020.

Finally, it bears noting that both Courts continued to recognise the exigent health questions arising from COVID. For example, the Conseil d’Etat fully accepted that religious ceremonies “expose participants to risks of contamination which are all the higher because they occur in enclosed spaces” where singing and ritual gestures increase human contact.[7] However, that the highest administrative authority in France – a country famous for its embrace of laïcité – would intervene in favour of religious adherents serves as a caution to legal commentators to resist sweeping generalisations about the US Supreme Court’s decision. Indeed, it is a further signal that the noises created by religious groups at this time are finding receptive audiences globally and may well find more. Just recently, a group of senior faith leaders in the UK – including the Cardinal Archbishop of Westminster, the Anglican Archbishops of Canterbury and York and Chief Rabbi of the Commonwealth – wrote in stern terms to Prime Minister Boris Johnson, arguing “there is no scientific rationale for suspension of Public Worship where it is compliant with the guidance that we have worked jointly with government to establish.” Will they too seek the protection of the courts? They may well feel emboldened now.

[1] Para. 20 : “…une atteinte grave et manifestement illégale [à la liberté de culte]”. Unless where otherwise indicated, all the English translations in the text are my own.

[2] “No one shall be disquieted on account of his opinions, including his religious views, provided their manifestation does not disturb the public order established by law.” This English translation can be found on “The Avalon project, Documents in Law, History and Diplomacy”:

[3] “The Republic ensures freedom of conscience. It guarantees the free exercise of religion subject to the sole restrictions enacted hereafter in the interest of public order.”

[4] Para.18: “…il ne résulte pas de l’instruction que l’interdiction absolue et générale de toute cérémonie religieuse de plus de trente personnes, alors qu’aucune autre activité autorisée n’est soumise à une telle limitation fixée indépendamment de la superficie des locaux en cause, serait justifiée par les risques qui sont propres à ces cérémonies.. “

[5] Para.19: “D’autre part, si, durant la phase actuelle de l’allègement du confinement, les rassemblements et réunions sont interdits, ainsi que le relève le ministre de l’intérieur, au-delà de six personnes, sauf exceptions, sur la voie publique et dans les lieux ouverts au public, et si certains établissements recevant du public autres que les lieux de culte restent fermés, les activités qui y sont exercées ne sont pas de même nature et les libertés fondamentales qui sont enjeu ne sont pas les mêmes.”

[6] Article 2: “…en prenant les mesures strictement proportionnées d’encadrement des rassemblements et réunions dans les établissements de culte…”

[7] Para. 15: “Les cérémonies religieuses exposent les participants à un risque de contamination qui est d’autant plus élevé qu’elles ont lieu dans un espace clos…”

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