Coronavirus and the Curtailment of Religious Liberty †
1. The Pandemic
[The COVID-19 pandemic] has led to a resurgence of authoritarianism, particularly in Western democracies, with towns, cities and entire countries being placed into lockdown and places of worship closed, with the active concurrence, or passive acceptance, of faith leaders. Civil rights, including freedom to manifest religion and belief, have effectively been suspended in consequence of a global health emergency. Severe limitations on personal and associational autonomy—unthinkable in normal times—have been imposed, in circumstances in which most major faith groups have been complicit and supportive. It will be interesting to see how the landscape will have changed after the current public health emergency has passed.4
2. Religious Liberty—General Overview
1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.8
- Does the complaint fall within the scope of Article 9?
- Has there been any interference with the manifestation of religion?
- Is the limitation prescribed by law?
- Is the limitation in pursuit of a legitimate aim?
- Is the limitation necessary in a democratic society?
‘Seeing issues arising from COVID-19 through a human rights lens should, instead of focusing on one right to the exclusion of others, take in the full range of human rights protections, including the right to life and to health, the right to an adequate standard of living, and the right to work, with the consequence that we locate human rights appropriately, often on both sides of major political disputes.’13
States should not limit the freedom to manifest religion or belief to protect public health past the point necessary, or close places of worship in a discriminatory manner. To the extent that states are taking measures in response to COVID-19 that limit the freedom to manifest, either individually or in community with others, one’s religion or belief in worship, observance, practice, and teaching, they should do so only to the extent that these restrictions are established by law and necessary for a limited number of purposes, including public health.15
Effective enjoyment of all these rights and freedoms guaranteed by Articles 8, 9, 10 and 1117 of the Convention is a benchmark of modern democratic societies. Restrictions on them are only permissible if they are established by law and proportionate to the legitimate aim pursued, including the protection of health. The significant restrictions to usual social activities, including access to public places of worship, public gatherings and wedding and funeral ceremonies, may inevitably lead to arguable complaints under the above provisions. It is for the authorities to ensure that any such restriction, whether or not it is based on a derogation, is clearly established by law, in compliance with relevant constitutional guarantees and proportionate to the aim it pursues.
While heightened restrictions to the above-mentioned rights may be fully justified in time of crisis, harsh criminal sanctions give rise to concern and must be subject to a strict scrutiny. Exceptional situations should not lead to overstatement of criminal means. A fair balance between the compulsion and prevention is the most appropriate, if not the only way, to comply with the Convention proportionality requirement.18
It is important for governments to account for religious freedom concerns in their responses to COVID-19, for reasons of both legality and policy effectiveness. From a legal perspective, international law requires governments to preserve individual human rights, including religious freedom, when taking measures to protect public health even in times of crisis. From an efficacy perspective, considering religious freedom concerns can help build trust between governments and religious groups, who in past public health crises have played a critical role in delivering health interventions. Such concerns include the cancellation of large gatherings, among them religious activities, where viruses easily can spread.19
3. The Constitutionality of Government Responses
4. Assessing Risk and Deference to Government
‘The precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement. Our Constitution principally entrusts “[t]he safety and the health of the people” to the politically accountable officials of the States “to guard and protect” … Where those broad limits are not exceeded, they should not be subject to second-guessing by an “unelected federal judiciary,” which lacks the background, competence, and expertise to assess public health and is not accountable to the people … That is especially true where, as here, a party seeks emergency relief in an interlocutory posture, while local officials are actively shaping their response to changing facts on the ground. The notion that it is “indisputably clear” that the Government’s limitations are unconstitutional seems quite improbable.’35
5. The UK Government’s Response—An Overview36
‘Each place of worship is strongly advised to implement the measures set out in this guidance to ensure that visitors comply with Regulations, and any risk assessments completed for the venue, for the safety of all those who visit and work there. The Government strongly advises each place of worship ensures that visitors comply with the social distancing guidelines.’
6. The Reaction of Religious Organisations
3. We take seriously our responsibility to minister to the welfare of the Community, both worldly and next-worldly. This involves a recognition of the serious importance that our religion places on life, health, community, and spiritual well-being. To trivialise any aspect of this would be an error. As our scholarly tradition demands, our approach in the Guidance is directed by consideration of what is essential, recommended, and desirable. This includes a keen understanding of when (and which) religious rulings may be suspended due to temporary harms or hardship.
5. In the event that government directives are issued over-riding any part of the guidance relating to gathering in public or private spaces, then the government directives would take priority.
7. Mandatory or Advisory?
This phenomenon meant that the scope of individual liberty was unclear and at times misrepresented. Whilst the coronavirus guidance was drafted to fulfil well-intentioned public health objectives, by implying, even unintentionally, that criminal law restrictions were different or more extensive than they in fact were and by failing accurately to delineate the boundary between law.62
the deliberative and scrutiny functions of the legislature … are crucial not only for preventing the abuse of emergency measures, but also for increasing the effectiveness of emergency measures by improving conditions necessary for compliance.65
8. Challenging Government Restrictions—United Kingdom
There is no dispute that the cumulative effect of the restrictions contained in the 2020 Regulations is an infringement of the Claimant’s right to manifest his religious belief by worship, practice or observance. The Claimant’s case is that attendance at Friday prayers is a matter of religious obligation, and the Secretary of State does not seek to contend otherwise.
This legitimate difference of opinion has something to add to consideration of the question of justification—the fair balance between the general and societal interest and the Convention rights of those such as the Claimant. The Claimant’s beliefs do not cease to be important. Real weight continues to attach to them. But the overall fair balance can recognise the indisputable point that the Claimant’s beliefs as to communal Friday prayer in current circumstances are not beliefs shared by all Muslims.
The virus is a genuine and present danger to the health and well-being of the general population. I fully accept that the maintenance of public health is a very important objective pursued in the public interest. The restrictions contained in regulations 5 to 7, the regulations in issue in this case, are directed to the threat from the COVID-19 virus. The Secretary of State describes the “basic principle” underlying the restrictions as being to reduce the degree to which people gather and mix with others not of the same household and, in particular, reducing and preventing such mixing in indoor spaces. I accept that this is the premise of the restrictions in the 2020 Regulations, and I accept that this premise is rationally connected to the objective of protecting public health. It rests on scientific advice acted on by the Secretary of State to the effect that the COVID-19 virus is highly contagious and particularly easily spread in gatherings of people indoors, including, for present purposes, gatherings in mosques, churches, synagogues, temples and so on for communal prayer.”
9. Challenging Government Restrictions—USA
Although California’s guidelines place restrictions on places of worship, those restrictions appear consistent with the Free Exercise Clause of the First Amendment. Similar or more severe restrictions apply to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time. And the Order exempts or treats more leniently only dissimilar activities, such as operating grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods.
The precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement. Our Constitution principally entrusts “[t]he safety and the health of the people” to the politically accountable officials of the States “to guard and protect.” [ ] When those officials “undertake [ ] to act in areas fraught with medical and scientific uncertainties,” their latitude “must be especially broad.” [ ] Where those broad limits are not exceeded, they should not be subject to second-guessing by an “unelected federal judiciary,” which lacks the background, competence, and expertise to assess public health and is not accountable to the people. [ ]
That is especially true where, as here, a party seeks emergency relief in an interlocutory posture, while local officials are actively shaping their response to changing facts on the ground. The notion that it is “indisputably clear” that the Government’s limitations are unconstitutional seems quite improbable.83
As a general matter, the “government may not use religion as a basis of classification for the imposition of duties, penalties, privileges or benefits.” [ ] This Court has stated that discrimination against religion is “odious to our Constitution.” [ ] To justify its discriminatory treatment of religious worship services, California must show that its rules are “justified by a compelling governmental interest” and “narrowly tailored to advance that interest.” [ ] California undoubtedly has a compelling interest in combating the spread of COVID-19 and protecting the health of its citizens. But “restrictions inexplicably applied to one group and exempted from another do little to further these goals and do much to burden religious freedom.” [ ]
What California needs is a compelling justification for distinguishing between (i) religious worship services and (ii) the litany of other secular businesses that are not subject to an occupancy cap. California has not shown such a justification. […]
The State also has substantial room to draw lines, especially in an emergency. But as relevant here, the Constitution imposes one key restriction on that line-drawing: the State may not discriminate against religion.
That Nevada would discriminate in favor of the powerful gaming industry and its employees may not come as a surprise, but this Court’s willingness to allow such discrimination is disappointing. We have a duty to defend the Constitution, and even a public health emergency does not absolve us of that responsibility.
[Nevada’s] discriminatory treatment of houses of worship violates the First Amendment. In addition, unconstitutionally preventing attendance at worship services inflicts irreparable harm on Calvary Chapel and its congregants, and the State has made no effort to show that conducting services in accordance with Calvary Chapel’s plan would pose any greater risk to public health than many other activities that the directive allows, such as going to the gym.
In times of crisis, public officials must respond quickly and decisively to evolving and uncertain situations. At the dawn of an emergency—and the opening days of the COVID-19 outbreak plainly qualify—public officials may not be able to craft precisely tailored rules. Time, information, and expertise may be in short supply, and those responsible for enforcement may lack the resources needed to administer rules that draw fine distinctions. Thus, at the outset of an emergency, it may be appropriate for courts to tolerate very blunt rules.
As more medical and scientific evidence becomes available, and as States have time to craft policies in light of that evidence, courts should expect policies that more carefully account for constitutional rights.
In sum, the directive blatantly discriminates against houses of worship and thus warrants strict scrutiny under the Free Exercise Clause.
Religion cases are among the most sensitive and challenging in American law. Difficulties can arise at the outset because the litigants in religion cases often disagree about how to characterize a law. They may disagree about whether a law favors religion or discriminates against religion. They may disagree about whether a law treats religion equally or treats religion differently. They may disagree about what it means for a law to be neutral toward religion. The definitional battles over what constitutes favoritism, discrimination, equality, or neutrality can influence, if not decide, the outcomes of religion cases. But the parties to religion cases and the judges deciding those cases often do not share a common vocabulary or common background principles. And that disconnect can muddy the analysis, build resentment, and lead to litigants and judges talking past one another.89
There are certain constitutional red lines that a State may not cross even in a crisis. Those red lines include racial discrimination, religious discrimination, and content-based suppression of speech. This Court’s history is littered with unfortunate examples of overly broad judicial deference to the government when the government has invoked emergency powers and asserted crisis circumstances to override equal-treatment and free-speech principles. The court of history has rejected those jurisprudential mistakes and cautions us against an unduly deferential judicial approach, especially when questions of racial discrimination, religious discrimination, or free speech are at stake.
10. Coronavirus and Abortion
11. Global Issues95
12. Some ‘Covidential’ Matters
- Navigating a global health emergency requires a high level of trust between the government and the governed;
- The greater and more immediate the threat, the more likely the population generally will tolerate the restrictions on their human rights in general and curtailment of religious liberty in particular;
- Public health emergencies must be handled with the framework of the rule of law;
- Collaboration between the state and religious organisations (desirable in ordinary circumstances) becomes essential during a health emergency;
- Any curtailment of religious liberty (as with civil rights generally) should be the minimum possible consistent with the emergency faced;
- Restrictions need to the focused and time-limited. Lesser means of achieving the same end should be considered.
Conflicts of Interest
- Addison, Neil. 2020. Is the Coronavirus Ban on Weddings Lawful? Law & Religion UK, May 11. [Google Scholar]
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For a comprehensive repository of COVID-related regulations and guidance in the United Kingdom (together with advice issued by religious organisations) see the designated page on Law and Religion UK. https://www.lawandreligionuk.com/2020/08/20/covid-19-coronavirus-legislation-and-guidance/.
The national governments made different provision for Wales, Scotland and Northern Ireland, leaving the Westminster Parliament to legislate for England alone.
Dolan, Monks and AB v Secretary of State for Health: Reasons for Grant of Permission to Appeal, 4 August 2020, per Hickinbottom LJ.
M Hill, ‘Locating the right to freedom of religion or belief across time and territory’ in (Ferrari et al. 2020).
See (Ferrari et al. 2020).
Note also the right to marry.
For a detailed discussion of the ambit and reach of Article 9, see (Hill and Barnes 2019).
This language is near identical with that of Article 18 of the United Nations Covenant on Civil and Political Rights.
Darby v. Sweden, 9 May 1989, European Commission on Human Rights, Application No. 11581/85, para. 44. As Queen Elizabeth I reputedly stated: ‘I would not open windows into men’s souls’: letter drafted by Francis Bacon. See JB Black, Reign of Elizabeth 1558–1603 (1936).
A state is permitted to derogate from its obligations under Article 9 ‘[i]n time of war or other public emergency threatening the life of the nation’ as permitted by Article 15. The United Kingdom has not, as yet, purported to invoke this derogation.
For a discussion on proportionality in the limitations on freedom of religion, see (Bielefeldt et al. 2016).
Lord Sumption, a retired Justice of the United Kingdom Supreme Court, has suggested that a challenge on ECHR Article 5 grounds (right to liberty and security) ‘would require the judges to say whether the objective of the lockdown was important enough to justify it, whether some less intrusive measure would have done as well and whether the injury to liberty was disproportionate to the likely benefit. I suspect that the courts would run a mile before tackling issues like these’: (Sumption 2020a).
COVID-19 and Religious Minorities Pandemic Statement: https://www.government.nl/documents/diplomatic-statements/2020/08/20/covid-19-and-religious-minorities-pandemic-statement. The co-signatories comprised: Albania, Armenia, Australia, Brazil, Bulgaria, Colombia, Estonia, Georgia, Greece, Hungary, Latvia, Lithuania, Netherlands, Poland, Slovakia, Slovenia, United Kingdom, United States of America.
These are (respectively): right to private life, freedom of conscience, freedom of expression, freedom of association.
Respecting democracy, rule of law and human rights in the framework of the COVID-19 sanitary crisis: A Toolkit for Member States (above).
The Global Response to the Coronavirus: Impact on Religious Practice and Religious Freedom (March 2020) produced by the United States Commission on International Religious Freedom. https://www.uscirf.gov/sites/default/files/2020%20Factsheet%20Covid-19%20and%20FoRB.pdf.
For example the High Court of Malawi concluded: ‘The impugned lockdown fundamentally restricts the right to life, the right to equality and recognition before the law and the right to freedom of conscience, belief, thought and religion which cannot be derogated’ [in the absence of a declaration of a state of emergency being declared by the President]: Kathumba v President of Malawi (paragraph 7.8, emphasis added).
Retired UK Supreme Court Justice, Lord Sumption, regular appears in the broadcast and print media criticising the authoritarian approach of the British government and encouraging non-compliance with the law. Some British bloggers have been active on the subject. See particularly the twitter account of @AdamWagner1 and his podcast @bhumanpodcast.
‘The longer these emergency procedures are used, the less Rule of Law compliant they are’: (Cormacain 2020).
For an outspoken critic of the British government, see (Sumption 2020b).
 MWHC 29 (3 September 2020), https://malawilii.org/system/files/judgment/high-court-general-division/2020/29/LOCKDOWN%20JUDGMENT.pdf.
Para 10.2.1. The judgment focussed on the impact of lockdown provision on education, health (particularly sexual health) and domestic violence, and made no specific reference to religious liberty, but the principles are of general application. The Malawi Council of Churches were joined as sixth respondent in the proceedings. Of particular concern was the government’s decision to declare a lockdown without providing for social security interventions for marginalised groups: para 2.1(2).
Judicial Review Case 2 of 2018 & 709 of 2017 (Consolidated)  eKLR.
Petition 120 of 2020 (Covid 025).
The provision survived the challenge, upon the government specifying precise timings which had been omitted from the original order. The court considered it a valid precautionary measure to prevent the spread of the disease.
Loielov Giles  VSC 619 (24 September 2020). http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2020/619.html?fbclid=IwAR3R1XFw0N16TxlWml4S51xoUhcB2IW85QL5eVzwFlf-TUU9qRJa_aYprO8. I am grateful to Professor Neil Foster of the University of Newcastle, Australia, for bringing this judgment to my attention in a recent Facebook post.
Particularly the following rights: to freedom of movement under s 12; to liberty and security under s 21(1); not to be subject to arbitrary detention under s 21(2); and, not to be deprived of her liberty under s 21(3).
The redaction included passages concerning the application of the right to freedom of religion: s 14 of the Charter.
Kathumbav President of Malawi  MWHC 29 (3 September 2020), at paragraph 10.2.2 et seq.
South Bay United Pentecostal Church v Gavin Newsom, Governor of California 590 U. S. (2020): See also Calvary Chapel Dayton Valley v. Steve Sisolak, Governor of Nevada 591 U. S. (2020).
For a detailed study see (Cranmer and Pocklington 2020). The Report of the UK Parliament Joint Committee on Human Rights: The Government’s response to COVID-19: human rights implications (HC 265; HL Paper 125, 21 September 2020) is disappointingly light on freedom of religion.
http://www.legislation.gov.uk/uksi/2020/350/made, made pursuant to powers in section 45R of the Public Health (Control of Disease) Act 1984. The regulations are dated 26 March 2020, three days after the lockdown was declared by the prime minister on national television and are recorded as being made at 1.30 p.m., laid before Parliament at 2.30, but coming into force at 1.30 p.m. They have been subject to a series of amending regulations, generally intended at clarification or the relaxing of particular provisions.
Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, reg 5(6). Places of worship that served as premises for early years childcare provided by a registered person were permitted to open for this purpose from 1 June 2020: Reg. 5(6)(d) inserted by The Health Protection (Coronavirus, Restrictions) (England) (Amendment) (No. 3) Regulations 2020 (S.I. 2020/558), regs. 1(2), 2(5)(b)(ii).
Health Protection (Coronavirus, Restrictions) (England) Regulations 2020. reg 10. The offence is punishable by a fine, and police officers are authorised to issue fixed penalty notices. There were some examples of over-zealous policing, and criminal many convictions for breaches of lockdown law were quashed for procedural irregularities. See, by way of example only: https://www.independent.co.uk/news/uk/crime/coronavirus-fine-police-lockdown-travel-newcastle-marie-dinou-a9444186.html. Section 64 of the Public Health (Control of Diseases) Act 1984 provides that criminal proceedings in respect of offences created by regulations made under this Act (such as these) may not be initiated other than by health protection authorities or other authorized persons. Regulation 11 of Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 states that proceedings for an offence under the regulations may be brought by the Crown Prosecution Service. It would appear that a private prosecution (by a member of the public) is not permissible.
Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, reg 6(1)(g). A friend was permitted to attend but only if there were no member of the household or family member attending.
Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, reg 6(1)(k).
Also named under key public services are: those essential to the running of the justice system, charities and workers delivering key frontline service, those responsible for the management of the deceased, journalists and broadcasters who are providing public service broadcasting.
The Archbishop of Canterbury offered this clarification during a television interview on Easter Day.
See the Church of England’s press release https://mailchi.mp/churchofengland/church-of-england-to-close-all-church-buildings-to-help-prevent-spread-of-coronavirus?e=3746409744 and subsequent Guidance which has been updated periodically, https://www.churchofengland.org/more/media-centre/coronavirus-covid-19-guidance-churches.
The Health Protection (Coronavirus, Restrictions) (England) (Amendment) (No. 4) Regulations 2020 (laid before Parliament on 12 June 2020) introduced a new reg 5(6)(e) into the original regulations adding to restricted categories of purposes for which a place of worship may be used.
Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, reg 5(6)(e), inserted with effect from 13 June 2020, by The Health Protection (Coronavirus, Restrictions) (England) (Amendment) (No. 4) Regulations 2020 (S.I. 2020/588), regs. 1(2), 2(4)(c)(ii).
It was not unusual for government guidance to precede publication of the very regulations which they were designed to explain and amplify.
COVID-19: guidance for the safe use of places of worship during the pandemic (Ministry of Housing, Communities and Local Government, 12 June 2020).
COVID-19: guidance (above) para 3.
With the exception of organists who are able to use buildings for practice with appropriate social distancing.
COVID-19: guidance (above) para 4.
The remaining parts of the Health Protection (Coronavirus Restrictions) (England) Regulations 2020 were revoked by the Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020 (SI 2020 No 684) with effect from 00.01 hrs on 4 July 2020. This included the restrictions on the use of places of worship under reg 6 discussed above. The government issued the COVID-19: Guidance for the safe use of places of worship from 4 July on 29 June in advance of the revocation of the regulations.
By way of example, Church of England guidance on the reception of the sacrament encouraged each communicant to sanitise their hands before and after removing their face covering to receive the bread, and before and after putting it on again: https://mcusercontent.com/14501d5eebc3e98fa3015a290/files/e3431843-273b-403d-9c70-aed1a0678ae7/COVID_19_Advice_on_the_Administration_of_Holy_Communion_v4.1_0.pdf.
This included guidance on Baptisms; Weddings; Funerals; Holy Communion; Confirmation; Ordinations and Consecrations; Conducting public worship; Pastoral support in the community including care homes; and a Frequently Asked Questions on the vexed question: Can a choir sing during worship? See the commentary at https://www.lawandreligionuk.com/2020/08/17/covid-19-further-changes-to-church-of-england-guidance/ As noted above, on occasions instructions from the Church of England (later styled advice) went further than government regulations required.
The imposition of criminal sanctions in the form of £10,000 fines for those organizing gatherings (including protests) was a particularly draconian response.
For example, the instruction not to live-stream liturgies from closed churches, discussed above.
See (Cormacain 2020).
 EWHC 1392 (Admin).
Part of a suite of restrictions contained in the Health Protection (Coronavirus Restrictions) (England) Regulations SI 2020/350. This is a statutory instrument (secondary legislation) made pursuant to powers contained in the Public Health (Control of Disease) Act 1984, an Act of Parliament (primary legislation). Under regulation 5(6) of the Regulations, places of worship could only be open for funerals, the broadcast of acts of worship and the provision of essentially voluntary support services or urgent public support services.
In addition, regulation 7 prevented gatherings of more than two people in any public place, save for any of seven specified purposes. Attendance at an act of worship was not one of the permitted purposes. Swift J took the provisional view, without the benefit of full argument, that a public place would naturally include a place of worship. The matter is not free from doubt: see, by way of example, Church of Jesus Christ of Latter-day Saints v Gallagher (Valuation Officer) (2008) UKHL 56; and Church of Jesus Christ of Latter-day Saints v United Kingdom (2014) ECtHR.
“Jumu’ah is both an obligation on healthy adult males and a clarion sign of Islam; lifting or suspending that obligation from the community at large is not a step that can or should be taken lightly. Nonetheless, we reiterate that the prime directive for animating this briefing paper is people’s health and welfare, particularly protecting the elderly and infirm,” per British Board of Scholars and Imams in a Briefing Document published on 16 March 2020.
A city in northern England with a large Muslim population.
There was no Article 14 claim because the regulations applied equally in respect of collective worship in a church, synagogue, temple or chapel and, accordingly, there was no discrimination against Muslims.
The judgment was handed down on 21 June 2020, and less than two weeks later places of worship were allowed to open for collective acts of worship subject to certain conditions: the remaining parts of the Health Protection (Coronavirus Restrictions) (England) Regulations 2020 were revoked by the Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020 (SI 2020 No 684) with effect from 00.01 hrs on 4 July 2020. This included the restrictions on the use of places of worship under reg 6. The government issued the COVID-19: Guidance for the safe use of places of worship from 4 July on 29 June in advance of the revocation of the regulations.
Namely that “at this time and until further notice the obligation of Jumu’ah should be lifted from the generality of UK Muslims”.
 EWHC 1786 (Admin).
The jurisdiction of a court to address matters when the impugned legislation had been revoked was discussed in Kathumba v President of Malawi  MWHC 29 (03 September 2020), High Court of Malawi. The Court observed: ‘Ordinarily, the extinction of the subject matter to litigation has the consequence of extinguishing the entire action rendering any decision-making by the Court moot thereby becoming a mere academic exercise and of no legal consequence. However, subject matter extinction must arise out of an uncontrollable or inevitable event that occurs during the course of the proceedings. Subject matter extinction cannot be conduced by any of the parties to the matter’ (paragraph 3.3) and: ‘a finding that the matter herein is moot would only enable the Respondents to evade review of a matter capable of repetition. The facts of the present case are therefore not caught by the constitutional doctrine of mootness’ (paragraph 3.5).
In referring the matter for reconsideration by an appellate court, Lord Justice Hickinbottom stated: ‘the challenged Regulations impose possibly the most restrictive regime on the public life of persons and businesses ever—certainly outside times of war—but, they potentially raise fundamental issues concerning the proper spheres for democratically elected Ministers of the Government and judges’: Reasons for Grant of Permission to Appeal, 4 August 2020.
See also (Cranmer and Pocklington 2020).
The Archbishop of Canterbury’s power to authorise a marriage in Wales by Special Licence predates the disestablishment of the Welsh dioceses of the Church of England. The Welsh Church Act 1914 did not remove that power.
On 1 October 2020, the U.S. Ninth Circuit Court of Appeals (by a majority of 2:1) uphold the Governor of California’s coronavirus restrictions on indoor worship, concluding that the health orders on churches did not discriminate against religious expression https://www.latimes.com/california/story/2020-10-01/california-appeals-court-churches-coronavirus.
South Bay United Pentecostal Church v Gavin Newsom, Governor of California 590 U. S. (2020).
In Europe these would be categorised as discrimination claims: wrongful discrimination on the ground of religion, being a protected characteristic under equality law.
This deference principle might be likened to the margin of appreciation exercised by the European Court of Human Rights: legitimate and worthy as a concept, but valueless when deployed capriciously and untethered: see (Hill and Barnes 2019).
Joined by Justices Thomas and Gorsuch.
Calvary Chapel Dayton Valley v. Steve Sisolak, Governor of Nevada 591 U. S. (2020).
As was the case in South Bay, although the dissentient Justices viewed it otherwise, taking a different—and broader—comparator.
One can assume they were probably similar to those articulated by Roberts CJ in South Bay, set out above.
Joined by Justices Thomas and Kavanaugh. It is instructive that the opinion distinguishes the South Bay case (in which Alito J had also joined the dissent). In South Bay a church relied on the fact that the California law treated churches less favorably than certain other facilities, such as factories, offices, supermarkets, restaurants, and retail stores. But the law was defended on the ground that in these facilities, unlike in houses of worship, people neither congregate in large groups nor remain in close proximity for extended periods. That cannot be said about the facilities favoured in Nevada. In casinos people do congregate in large groups and remain in close proximity for extended periods. A detailed critique of the distinction between a church and a casino is beyond the scope of this paper.
He identified four categories of laws: (1) laws that expressly discriminate against religious organizations; (2) laws that expressly favor religious organizations; (3) laws that do not classify on the basis of religion but apply to secular and religious organizations alike; and (4) laws that expressly treat religious organizations equally to some secular organizations but better or worse than other secular organizations. Nevada’s reopening fell into the fourth category.
See (Barker 2020). Concerns were expressed in an open letter sent to the Australian Prime Minister by three Archbishops—Roman Catholic, Anglican and Greek Orthodox—concerns shared by the Australian Federation of Islamic Councils.
The Queen on the application of Christian Concern v Secretary of State for Health and Social Care  EWCA Civ 1239.
The approval was time limited until either the date when the temporary provisions of the Coronavirus Act 2020 expire or two years, whichever is the earlier.
See the following extract from the government’s evidenced: ‘The COVID-19 pandemic had multiple impacts on abortion treatment and that this would be the case was evident from, at the latest, mid-March 2020. First, fewer women were willing or able to travel to abortion services because of the danger to themselves in contracting COVID-19 and the difficulties faced in leaving home by those with young children or living in coercive and abusive relationships. Second, the incidence of staff illness within some providers had reduced the availability of provision of services and lengthened waiting times. Third, abortion services themselves were being withdrawn because spare capacity was needed for patients suffering from COVID-19’ (emphasis added).
SPUC Pro-Life Scotland v Scottish Ministers  CSIH 31.
The following examples are uncorroborated and derived from various websites including: Open Global Rights: https://www.openglobalrights.org/lockdowns-vs-religious-freedom-covid-19-is-a-trust-building-exercise/.
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Hill QC, M. Coronavirus and the Curtailment of Religious Liberty. Laws 2020, 9, 27. https://doi.org/10.3390/laws9040027
Hill QC M. Coronavirus and the Curtailment of Religious Liberty. Laws. 2020; 9(4):27. https://doi.org/10.3390/laws9040027Chicago/Turabian Style
Hill QC, Mark. 2020. "Coronavirus and the Curtailment of Religious Liberty" Laws 9, no. 4: 27. https://doi.org/10.3390/laws9040027