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Freedom of conscience and religion in pandemic times

2021.06.07. @ 15:00 - 17:00

The event in brief

The conference was organized as part of the Central European Professors’ Network 2021 and coordinated by the Ferenc Mádl Institute of Comparative Law.

The webinar focused on questions the Covid-19 pandemic poses in connection with freedom of religion and conscience, and ways it influences already existing issues of religious liberty around the world. Apart from examining the relevant legal aspects of the pandemic, the speakers provided a wider evaluation of the situation, introducing important sociological and political dimensions of the assessment as well. Speakers attended from Pázmány Péter Catholic University, Hungary, and the University of Toledo, USA.

Program

Lee J Strang (University of Toledo, USA): The Unsettled State of American Religious Liberty Law

Balázs Schanda (Pázmány Péter Catholic University): Freedom of religion in a pandemic – Does it make any special?

Lóránt Csink (Pázmány Péter Catholic University): Freedom of conscience in a pandemic – What questions does vaccination raise?

Discussant: István Sabjanics (Pázmány Péter Catholic University)

Host: Noémi Suri (Pázmány Péter Catholic University)

The event in detail

The first presentation “The Unsettled State of American Religious Liberty Law” was held by Lee J Strang. First, Professor Strang provided a brief overview of the origins of religious liberty law in the US and pointed out that it was the product of a relatively robust, but “thin” religious pluralism. While early Protestants had different views on theological questions, they otherwise had a fairly common view on many other aspects of life. The thesis statement of the lecture was that the increased religious pluralism of the late 20th century caused pressure on religious liberty protection, especially since the number of non-religious people, considering religion as harmful and in need of regulation, grew. Professor Strang described the 1972 Wisconsin v. Yoder case, exempting Amish children from compulsory education past 8th grade, as a high point of religious liberty protection and contrasted it with the 1990 Smith v. Employment Division case which established the current standard of religious liberty protection. Under the Smith decision, this protection only protects religious communities against regulation targeting religious activities but does not grant exemptions in the case of neutral regulation. According to the underlying argument of the decision, due to the ever-widening range of what constitute “religious activity”, it was necessary to prevent religious exercise to become a “get out of jail” card against regulation applicable to everyone. However, Professor Strang stressed that the Supreme Court currently has a number of justices who do see religion as valuable and worthy of protection and might be inclined to change the strict standard set out by the Smith decision. In the last part of his lecture, the Speaker explored how Covid restrictions might provide an opportunity to achieve this goal and described already available cases such as the Roman Catholic Diocese of Brooklyn v. Cuomo decision to illustrate his point.

The next presentation, “Freedom of religion in a pandemic – Does it make any special?” held by Balázs Schanda, focused on how Hungarian measures in response to the coronavirus regulated religious activities. Professor Schanda reminded the audience that a global pandemic inevitably creates room and necessity for exceptions and privileges. The question of who can benefit from these privileges is of utmost importance. Comparing the three waves of the virus reaching Hungary, it can be established, that the first one entailed more severe restrictions than the other two. Overall, the restrictions could be characterized as relatively simple and hardly changing which made them easier to follow. With regards to religious freedom, the government chose to grant religious communities the autonomy to find appropriate ways to prevent the spread of the virus. It was not the only tenable policy, since contrary to the previous constitution, the Fundamental Law allows the derogation of freedom of religion in case of a state of emergency. However, this approach allowed religious communities, to have slightly different solutions to counter the effects of the virus, although they all instituted measures in line with the government’s policy. The reasons behind this preferential treatment can be traced back to multiple possible roots. Religious gatherings mostly attract people from a smaller area than sports events or concerts, therefore the risk of facilitating the spread of the virus is lesser. Moreover, historical churches usually have access to records of similar historical experiences, and can quickly put adequate restrictions in place. Another explanation can be the long-entrenched cooperative relationship of the state and religious communities. However, Professor Schanda also posited that in such an exceptional situation, it is also possible to assume, that no rational answer can be found. He pointed out that Covid regulations are difficult to examine from a legal point of view, weighing the necessity and proportionality of each measure separately, and should rather be examined holistically to conclude from the pandemic for the future.                                               

In his presentation on “Freedom of conscience in a pandemic – What questions does vaccination raise?” Lóránt Csink examined the particular problems the regulations of Covid vaccination pose to freedom of conscience. He pointed out that in Hungary, while the current public debate on the Covid vaccines is hardly based on rational arguments, whether someone is vaccinated or not has a high impact on his or her social life. Covid vaccination has unique aspects from the perspective of constitutional law as well. While mandatory vaccination is constitutional in most legal systems around the world, Covid vaccination – similarly to seasonal influenza vaccines – is not mandatory in virtually all countries. However in Hungary, there are several restrictions in place for those who are not vaccinated, therefore it might be considered as semi-mandatory. Furthermore, it could be argued that the refusal of vaccination has more severe practical consequences in the case of this semi-mandatory vaccine than with respect to mandatory ones. In the next segment, the presentation analysed a 2007 decision of the Hungarian Constitution Court examining the constitutionality of mandatory vaccination, with a special focus on the “comparative test of burdens” invoked in the case. This test aims to establish the criterions of balancing in cases when an exemption is requested, invoking freedom of conscience, from generally applicable legal regulation. The findings of that case were compared to the present situation to explore their similarities and differences. Summarizing his findings, Professor Csink stressed that to establish the constitutionality of various regulatory solutions of Covid vaccination, there are still many questions that need to be assessed by the scientific community. Freedom of conscience must be respected, and the differences in individual beliefs must be accepted and therefore striving for rational debate on the matter might be the best way to convince people. Although mandatory vaccination would probably be constitutional, it is socially dangerous as many people are not convinced that vaccination is helpful. In case of semi-mandatory measures, access to facilities and services should be linked to being healthy and not to vaccination, the law should accept alternative solutions to prove this, in line with the test of necessity and proportionality.

The discussant of the event was István Sabjanics, who addressed the framework of the protection of freedom of conscience and religion in international law, with a special focus on African regional human rights mechanisms and South Africa in particular. In this regard, the discussant explained that contrary to other regional human rights conventions, Article 8 of the African Charter on Human and Peoples’ Rights contains a clause referring to “law and order” which allows member states to limit the right to freedom of conscience and religion by simply referring to their domestic law. Consequently the regional human rights regime of Africa allows considerable room for member states to further their own political agendas at the expense of human rights protection. To examine how this framework works in practice, South Africa is an excellent example. The question of mandatory Covid vaccination is currently one of the most debated issue, with legal and traditional cultural arguments on both sides. Due to the tragic experiences of apartheid, many people in South Africa are suspicious of any compulsory government measures, which makes mandating vaccination difficult. Another way considered is to allow employers to require proof of vaccination from their employees, although this plan might face resistance from employers as well, and it could be considered to be a disproportionate measure. Although objections were raised based on freedom of conscience by members of the Catholic Church regarding vaccines administered to health workers, their political impact was marginal. On the other hand, a unique argument in favour of mandatory vaccination might be to invoke the principle of “Ubuntu,” a special concept in South Africa requiring individuals to act in a manner that benefits the greater community. Earlier cases in South African jurisprudence relied on this principle allowing for example mandatory tuberculosis treatment contrary to the applicant’s will. Nevertheless, the discussant stressed that ignoring international health regulation and corruption affecting the distribution of vaccines might pose greater problems in the country than questions of mandatory vaccination.

The presentations were followed by a discussion, examining two main issues. On the one hand, the distinction or the lack of distinction made between religious communities in European legal systems and the US religious law was explored, and the role it played in Covid restrictions pertaining to religious activity. Another point examined, was to what responsibilities the scientific community and political decision-makers have in creating Covid-related restrictions and regulations.

The videos of the webinar can be found below

Details

Date:
2021.06.07.
Time:
15:00 - 17:00

Venue

Webinar