2. The Layers of Protection of Religious Freedom
2.1. Role of Religion in Society
2.2. Content of Religious Freedom
2.3. Suspension of Rights during the COVID-19 Pandemic
3. The Church–State Model and Effective Protection of Religious Freedom
3.1. The Church and State Systems
3.2. The Distinctiveness of the Latin American Context
3.3. Peruvian Church and State Relationship
4. Final Remarks
Institutional Review Board Statement
Informed Consent Statement
Data Availability Statement
Conflicts of Interest
During the first months of 2021, Peru resumed strict restrictions that limit the celebration of liturgical acts to the maximum.
“The lack of effective response from a number of governments to protect people’s health through proven measures such as social distancing and quarantines to flatten the curve of the pandemic is also very concerning. Arguing that the cure would be worse than the disease, some governments have opposed these measures to avoid an economic slowdown” (Bohoslawsky 2020).
(Repucci and Slipowitz 2020) For example, the news came from China about a ban on entering Buddhist temples for acts of worship while they were open for tourism; public health regulations served to restrict or persecute religious minorities; mosques were singled out in India as places of dangerous contagion; stricter quarantines were imposed on some citizens because of their religious affiliation. Many governments have used public health control regulations as political repressive and discriminatory measures against religious groups.
With the intention of allowing spiritual activity to continue, the WHO published an interim guide in April 2020: “Practical considerations and recommendations for religious leaders and faith-based communities in the context of COVID-19”. This document acknowledges that religious leaders, faith-based organizations and faith communities can provide pastoral and spiritual support during public health emergencies and other health challenges and can advocate for the needs of vulnerable populations. We can see specific accommodation recommendations in this document—for example, recommendations to hold gathering outdoors or with fewer people, suggesting multiple services with a few attendees—among many other reasonable and effective suggestions to maintain religious activities during the pandemic. Unfortunately, many countries decided not to follow this guideline with the already-known restrictive consequences for religious freedom.
For example, in Spain, in October, the executive established a new protocol to rationalize the exercise of freedom of worship and the protection of health: “The permanence of people in places of worship is limited by fixing, by the authority competent corresponding delegate, of capacity for religious meetings, celebrations and gatherings, considering the risk of transmission that could result from collective meetings. Said limitation may not affect in any case the private and individual exercise of religious freedom”, there recognizing the importance of not restricting the exercise of this individual right. In this way, the legal limbo in which the acts of worship had remained in due to the March regulation was corrected.
“Access to the judicial system remained open so that citizens and legal entities could challenge, in court, the provisions and implementing acts. This access to the legal system, I argued, as a basic pillar of Rule of Law, revealed that democracy kept functioning during the pandemic” (Von Münchow 2020).
This is the main reason to include the rule of law as a general principle. Even if the Venice Commission reached the conclusion that Rule of Law was indefinable, a core elements checklist must be used as an operational tool to control state’s compliance with the rule of law: legal certainty, prevention of abuse, equality before the law and access to justice. This checklist also addresses specific, topical challenges to the rule of law: corruption and conflicts of interest, collection of data and surveillance (CoE 2016).
As will be discussed, because freedom of thought, conscience and religion undoubtedly play a key role in the formation of ideological pluralism, ignoring the guarantee of protection of this right is probably the most direct way to weaken the democratic quality of a society.
Secularism involves a complex requirement, which can be classified according to Taylor into the categories of the trinity of the French Revolution: no one must be forced in the domain of religion; there must be equality between people of different faiths or basic beliefs; no religious entity can enjoy a privileged status; and finally, all spiritual families must be heard, included in the ongoing process of determining what society is about and how it is going to realize these goals (Taylor 2010).
To better understand the role that government policy regarding religious freedom plays in strengthening democracy (Gill 1999).
For the purpose of this research, the collective nature of religion, organized as a “church”, must be considered a fundamental requirement for the approach presented here. For the collective approach to religion, see (Durkheim 1995).
The institutional approach must be understood according to Amartya Sen’s theory of institutions (Sen 2009).
We agree with Durham’s point of view on this topic (Durham 2004).
This is a particularly valuable category within the United Nations model, since for a successful solution to the sustainable development goals, they must be based on collegiate solutions in which both political power, private structures and organizations representing civil society participate (Tomalin et al. 2018).
“Governments can leverage the trust, reach and practical support of religious leaders to deliver effective public-health responses, because where confidence in and reach of government is fragile, trusted interlocutors are vital to the success of public-health responses. In fact, religious leaders can support behavioural change and public health messaging and provide facilities and community services”. https://institute.global/sites/default/files/inline-files/Tony%20Blair%20Institute%2C%20Working%20With%20Religious%20Leaders%20to%20Support%20Public%20Health%20Measures.pdf, accessed on 11 April 2021.
Religious freedom is a complex right, not only because of the varied manifestations of worship but also because of the high degree of subjectivity granted to determine when a personal behavior becomes a religious expression. Such a question necessarily leads to considering the degree of sincerity of those beliefs; however, to answer this question, we must address the collective dimension of religious freedom as a fundamental right. A religiosity test can be the degree to which an individual should be entitled to take responsibility for his convictions—a situation that leads to the extreme affirmation of denying the possibility of an effective protection of this right (Sullivan 2018).
The Universal Declaration and the norms of the Inter-American System for the protection of human rights are taken as a reference because the regional focus of this work is centered on the Peruvian and Latin American systems.
“The Universal Declaration of Human Rights (UDHR) does not define the terms ‘thought’, ‘conscience’ and ‘religion’” (Scheinin 2000).
“[w]hat has proven to be one of the most influential statements of religious rights of humankind yet devised entered into the international arena with no further light shed upon its meaning.” (Evans 1997).
Thus, converting freedom religious into a freedom that is reduced to the scope of the expression or manifestation of acts of worship.
With significant controversy among Islamic countries, as can be seen in the negotiation phase of the treaty (Clarke 1993).
The best way to guarantee the effective protection of freedom of thought is through non-coercion, allowing ideas to be freely expressed without censorship practices and with no limits on freedom of information other than those necessary for the protection of the fundamental rights of third parties.
When the fulfilment of a mandate of our conscience is placed before the fulfilment of a legal duty, the question of conscientious objection arises. Although it is true that the conscience enjoys absolute protection in the forum internum, and no one can force us to act against it, a different question concerns the responsibility produced by that action of our conscience leading it to disregard a legal mandate in the forum externum. It will then be necessary to verify the degree of involvement of one’s conscience with this moral mandate; it will be necessary to determine the eventual damage to other legal rights and rights; and it will be necessary to confirm the degree of seriousness or truth that the act contains (Prieto Sanchís 2006).
The ECHR has made it very clear in Leyla Sahim v. Turkey, recalling that: “as protected by Article 9 (of the ECHR), freedom of thought, conscience and religion represents one of the foundations of a democratic society within the meaning of the Convention. This freedom figures in its religious dimension among the most essential elements of the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics or the indifferent. It is about pluralism,—achieved in a very expensive way over the centuries—that could not be dissociated from such a society”.
Particularly the International Covenant on Civil and Political Rights (ICCPR), which acknowledges that states may need additional powers to address exceptional situations. Nevertheless, it is well established that “No state party shall, even in time of emergency threatening the life of the nation, derogate from the Covenant’s guarantees (…) and freedom of thought, conscience and religion. These rights are not derogable under any conditions even for the asserted purpose of preserving the life of the nation” (United Nations 1985).
Article 4, paragraph 2 of the Covenant explicitly prescribes that no derogation from the following articles may be made to Article 18 (freedom of thought, conscience and religion); however, the notifications that Peru submitted in compliance with this obligation have always been generic: “The Secretary-General received from the Government of Peru a notification dated 19 March 2020, made under article 4 (3) of the above Covenant, regarding the declaration of a state of national emergency for a period of fifteen (15) calendar days by Supreme Decrees No. 044-2020-PCM of 15 March 2020, No. 045-2020-PCM of 17 March 2020 and No. 046-2020-PCM of 18 March 2020”. Further extensions to the state of national emergency during pandemic were reported every time they were declared, but always in a general and unspecific document. On the other hand, Peru is a signatory state of the Pact that has accumulated the highest number of notifications (244 until January 2021) of a state of emergency, essentially because it does not have a constitutional regulation regarding the state of emergency.
In order that the Committee can perform its task to monitor these emergency laws, states should include in their reports sufficient and precise information about their laws and practice in the field of emergency power. Unfortunately, the information they send is usually too generic and inadequate for the Committee to properly carry out this control work. A fundamental requirement for any measures derogating from the Covenant, as set forth in Article 4, paragraph 1, is that such measures are limited to the extent strictly required by the exigencies of the situation. This requirement relates to the duration, geographical coverage and material scope of the state of emergency and any measures of derogation resorted to because of the emergency.
At that moment, IACHR had already observed that different states in the region responded to exponential increases in the number of infections by declaring states of emergency, states of exception and states of disaster on the grounds of so-called public calamity or health emergencies through presidential decrees and various types of regulations to protect public health; many of then officially informed the OAS that they had suspended guarantees as per Article 27 of the American Convention (OAS 2020).
In this respect, the context of the case of the Pentecostal church that reached the Supreme Court of the United States in April 2020 must be understood. The discussion here concerned this religious group: given that they carry out the sacramental elements of their worship in collective headquarters, prohibiting religious assembly implies that the right to religious freedom of this community will be left without content. In this first case, the Supreme Court did not rule in favor of the religious community; it gave the legislator freedom to maintain the restrictions, but it intuited (and later recognized in November 2020) that there was actually an unjustified violation of religious freedom.
Particularly the layers of content that are in the forum internum.
Norms on Canon Law are clear in establishing that the sacraments require a physical presence of the priest to be imparted. “The Internet is relevant to many activities and programs of the Church— evangelization, including both re-evangelization and new evangelization and the traditional missionary work ad gentes, catechesis and other kinds of education, news and information, apologetics, governance and administration, and some forms of pastoral counselling and spiritual direction. (…) Virtual reality is no substitute for the Real Presence of Christ in the Eucharist, the sacramental reality of the other sacraments, and shared worship in a flesh-and-blood human community. There are no sacraments on the Internet; and even the religious experiences possible there by the grace of God are insufficient apart from real-world interaction with other persons of faith” (Pontifical Council for Social Communications 2002).
For more details on the role of neutrality in models of church–state relationships, see (Ruiz Miguel and Villavicencio Miranda 2014).
Halmai concludes in his study that “the worldwide resurgence of religion forces liberal constitutionalism to adapt religious rights to different state–church relationships” (Halmai 2017).
In this context, it is possible to consider what future effect these events will have on people’s level of religiosity. Will the secularization of society increase or will there be a resurgence in human beings’ approach to divinity? Certainly, this is an important question that unfortunately cannot be resolved at this time or in this work; however, it can be intuited that the political model and the decisions it adopts within a religious policy strategy will have an enormous impact on the future evolution of religiosity.
Tutela 1a Inst: 2020-4398 Accionado: Presidencia de la República y otros. Accionante: Edna del Carmen Benítez Casanova.
The ACHR departs from the triad of “thought, conscience and religion” that appears in the main human rights treaties and in many of the constitutional texts of the second half of the 20th century. It appears that it decided to separate religious freedom from freedom of thought with the intention of linking freedom of expression with freedom of ideas from which every democratic state is nourished. The Inter-American Court of Human Rights has given reasons in several of its judgments to understand the special treatment that freedom of thought maintains with freedom of expression within the IAHRS, relating it to the importance of freedom of the press as a guarantee of the democratic quality of states (Mosquera 2017).
Those could be described as “weak establishment” church–state systems.
However, in practice almost all Latin American countries fit the conclusions reached by Fox in his study on separation and secularism. He summarises that: “most state, even those which declare in their constitutions that they are secular or follow a separationist policy, do not follow these policies” (Fox 2011).
Essentially to those other than the Catholic Church since its recognition is obtained through its legal personality as an international subject, and is expressed in the agreements of a concordant nature that remain in force.
Agreements equivalent to those that the Catholic Church has that allow the effective realization of the scope of cooperation between institutions.
For more detail on the effects of regulations on religious freedom, see (North and Gwin 2004).
Article 80A of Supreme Decree No. 019-2001-JUS, which approves the regulation of organization and functions of the Ministry of Justice, published on 20 June 2001, later modified by Article 2 of Supreme Decree No. 026-2002-JUS, of 26 July 2002.
This registry will be published in 2003 with the approval of Supreme Decree No. 003-2003-JUS, and it was regulated that same year (Ministerial Resolution No. 377-2003-JUS (13 October 2003) that implements the Registry of Confessions other than Catholic (RCDC) and approves its Applicable Norms). It began its task of registering the different denominations that religious groups adopt in the Peruvian territory with remarkable success if we verify its statistics since it gave entry to 142 religious entities in the 7 years that it was in operation.
Only after verifying that the procedure was poorly planned did he choose to review it through a series of changes incorporated into the law on religious freedom (Mosquera 2019a).
Legal actions in the United States, Germany, Italy and France were filed by religious authorities against the state authorities that had established the restrictive measures. The lawsuits mentioned in Colombia or Argentina were filed by private citizens. No Roman Catholic Diocese of Brooklyn v. Cuomo could be found at the judiciary in South America.
“Whilst ‘states of emergency’ or similar exceptional regimes may allow for a more rapid, flexible and effective response, they limit the application of normal checks and balances” (CoE 2020).
Especially in the initial phase where the communities made the decision to adapt to the virtual format in order to attend to their faithful and worrying above all about giving support to their community.
Adapting liturgical celebrations and funeral rites, among others. In this second state, there were also religious communities that opted for a position of denial of the facts in a kind of confrontation between science and religion.
Taking legal action and claiming against restrictions and proposals by the government.
As we can see in the Colombian regulation: “once the conditions surrounding the activities of the religious sector have been analysed, and in accordance with the information provided by the National Board of Social Action of the Ministry of the Interior and the participation of leaders of the different confessions and religious communities of the country, this Portfolio prepared the special biosafety protocol to be applied in this sector, which is adopted by means of this resolution”. Resolution No. 1120, 3 July 2020.
Protocol for the religious activities of the Catholic Church in times of pandemic. Peruvian Episcopal Conference. “In all this time of national and health emergency, we have complied with and supported the measures established by the Government to prevent the spread of the COVID-19 pandemic. These measures obviously do not deny or impede the freedom to express our religious convictions or the worship that we need to offer to God. Once the state of national emergency (quarantine) has ended, each Bishop of the place will establish the date from which the faithful will be allowed to attend the temples for Eucharistic celebrations”. 25 June 2020.
It is true that the circumstances of the Peruvian public health system also affect the decision, but they are not the only factor. This precarious situation of the public health system in the specific Peruvian case is not a novelty; it had been specifically pointed out in timely reports prepared by the same government when presenting a report to the OECD in 2017, and in many others presented to international institutions (CEPAL 2020).
Proyecto de ley, No. 6391/2020-CR, proyecto de ley que dispone la reapertura de templos de toda confesión o denominación religiosa, sean parroquias, iglesias y similares; cumpliendo con los protocolos de bioseguridad, en el marco de la declaratoria de emergencia nacional a causa del COVID-19, 8 octubre 2020.
Decreto Supremo que modifica el artículo 5 del Decreto Supremo N° 170-2020-PCM. Artículo 5.—De la apertura de los templos o centros de culto religioso. “Se autoriza a partir del lunes 02 de noviembre de 2020, a que las entidades religiosas abran sus templos y lugares de culto para recibir a sus miembros, fieles y público en general, para la profesión individual de su fe, con un aforo no mayor a un tercio (1/3) de su capacidad total, y excepcionalmente podrán celebrar sacramentos y ceremonias especiales afines según su culto, debiendo adoptar y cumplir las normas sanitarias emitidas por la Autoridad Sanitaria Nacional y las medidas aplicables del Estado de Emergencia Nacional. A partir del 15 de noviembre de 2020, las entidades religiosas podrán celebrar ritos y prácticas religiosas de naturaleza colectiva, con un aforo no mayor a un tercio (1/3) de la capacidad total de los templos o lugares de culto, según los protocolos debidamente acordados por la Autoridad Sanitaria Nacional y en concordancia con las medidas del Estado de Emergencia Nacional”. In the same context, the Health Department aproved “Directiva sanitaria N° 121-MINSA/2020/DGIESP, Directiva sanitaria que establece medidas para el reinicio de actividades religiosas o de culto en el marco de la emergencia sanitaria de la COVID-19”, 30 October 2020.
COVID-19: Italy returns to strict lockdown for Easter. https://www.bbc.com/news/world-europe-56621342, accessed on 11 April 2021.
“The COVID-19 pandemic is harming health, social and material well-being of children worldwide, with the poorest children, including homeless children and children in detention, hit hardest. School closures, social distancing and confinement increase the risk of poor nutrition among children, their exposure to domestic violence, increase their anxiety and stress, and reduce access to vital family and care services. Widespread digitalisation mitigates the education loss caused by school-closures, but the poorest children are least likely to live in good home-learning environments with internet connection” (OECD 2020b).
The impact on funeral services has been significant. In this specific manifestation of the posthumous act of worship of the faithful, including accompanying and mourning the death of a loved one, the strict restrictions imposed during this pandemic have been an effective violation of three dimensions of the health of the relatives who have buried a loved one in these conditions. The WHO has reminded us that health deserves a complete definition; it is not only physical confinement and restrictive measures on rights that have put health at risk in a multilevel sphere.
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