Freedom of religion during the pandemic: France and Belgium in search of consistency, by Romain Mertens

Since the Coronavirus pandemic outbreak in 2020, States have adopted stringent measures to curb the virus’s propagation. These measures include limitations of freedom of religion. On request of Governments, churches, mosques and synagogues ceased to hold ceremonies or limited the number of believers allowed. While the judicial procedures raised by the British Government’s guidance were rejected, the situation is different in other countries. Namely, in France and Belgium, people have challenged the prohibition of religious ceremonies in front of the French and Belgian Councils of State, which pronounced very different decisions. Analysing these decisions could help us draw guidelines about the proportionality of restrictions to freedom of religion during a health crisis.

Exceptional measures

In its efforts to contain the pandemic, the UK Parliament voted the Coronavirus Act, which gave the Government power to mitigate the economic effects of the pandemic and prohibit or impose restrictions on gatherings, including religious ceremonies. In France, a new state of health emergency was declared, combined with a large delegation of powers to the Government. In Belgium, the Federal Government, in cooperation with Communities and Regions, did not rely on a de jure derogatory regime to enforce distancing measures and fundamental rights restrictions. Authorities invoked provisions of the law of 31 December 1963 on civil protection, the law of 15 May 2007 on civil security and the law 5 August 1992 on the police function, which are designed to address calamities and natural disasters.

Thus, in France, Belgium and the United Kingdom, the executive power has been the spearhead of the fight against the Coronavirus pandemic. However, as John Bell explained, the United Kingdom used a different style of Government than France – and Belgium. French and Belgian authorities enacted mostly formal legal rules that the police enforced, while British authorities relied on understanding and compliance. This might explain why the United Kingdom has faced less judicial challenges than France and Belgium.

First lockdown: the opposition between the two Councils of State

During the first lockdown (March 2020 – June 2020), all three Governments decided to prohibit religious ceremonies, with limited exceptions. In France and Belgium, individuals and associations introduced legal challenges against these restrictions. Each Council of State reviewed the ban on religious ceremonies. The procedural rules are somewhat similar in France and Belgium. The Council of State can suspend an administrative decision if there is an emergency to do so. In Belgium, the law further demands a serious argument that could lead to the cancellation of the administrative decision. In France, a serious infringement of fundamental freedom is required, which seems stricter.

Concerning France, according to the decree of 11 May 2020, places of worship might remain open, but no ceremony could occur, except for funerals, with a limit of twenty people. When the Council of State judged the case, several elements concurred to meeting the emergency condition. Believers could not attend religious services for several weeks. Furthermore, the main religions present in France have major celebrations during the spring. Thus, the Council deemed the emergency condition fulfilled “considering the improvement of the sanitary situation”. However, the emergency condition is not sufficient for the ban to be suspended.

Indeed, restrictions are necessary to avoid a new surge of contaminations. The risk of contamination is higher during religious ceremonies since they happen inside and involve collective prayers, songs and ritual movements. Nevertheless, the Council of State noted that rules were less rigid for other activities, while the fundamental rights involved were not the same. Namely, shopping malls, libraries and shops were open. The Council of State also considered that there had been no analysis of the possibility to adopt distancing measures during religious ceremonies and no consideration given to the ability of religious authorities to enforce them. In conclusion, the Council of State judged that the restriction to freedom of religion was disproportionate.

In Belgium, the claimants wished to suspend a provision forbidding religious ceremonies with three exceptions: weddings, funerals and broadcasted ceremonies. In the first two situations, the limit was thirty people and, in the latter, ten people. The Council of State insisted that the claimants cannot wait passively before the introduction of their case. According to the administrative court, the claimants had indeed been too slow in initiating proceedings: it should have been clear from 24 April, date of the announcement of the “déconfinement”, that religious ceremonies would not be allowed before June. The Council of State added, following its past case law, that a violation of a fundamental right is not automatically an urgent matter. Finally, the Council observed that the Government had maintained a dialogue with the representatives of the main religions and had announced it would discuss the restrictions of freedom of religion about ten days later. Thus, the administrative judge rejected the claim.

Second lockdown: more unity but less consistency

The second lockdown (November 2020 – December 2020), led to new judicial procedures in France and Belgium. What is especially striking is that the Belgian Council of State decided for the first time that a measure was not proportionate to fundamental rights. As I have underlined in another paper, the Belgian Council of State has not been willing to strike down the measures adopted by public authorities. In France and Belgium, each Council of State pronounced two decisions about freedom of religion.

In France, the Council of State decided on 7 November 2020 that the prohibition of religious ceremonies, except for funerals and weddings, was proportionate. Thirty people were allowed at funerals, while six people could attend weddings. The Council of State accepted the Government’s willingness to mitigate the most severe effects of the first lockdown, for instance by maintaining schools open, and the need to compensate with other measures. The Council of State also observed that the sanitary protocols in place during the summer had not been updated, although they were insufficient to maintain social distance. Finally, the duration of the prohibition was short (from 3 to 16 November), and a re-assessment of the measures was planned, along with concertation with religious representatives.

About three weeks later, the Council of State judged that the numerical limit set at thirty people per ceremony was not adequately justified, since it did not take into account the size of the place. At this time, the Government had again authorised all religious ceremonies. The Council of State acknowledged that religious activities involve higher risks than other activities, because of the singing, ritual movements and exchanges between participants. However, the Government did not justify the limit of thirty people, especially considering that no other activity had a fixed numerical limit. Finally, the fact that gatherings remained in principle forbidden had to be balanced with the interests at stake in each situation.

As for Belgium, the Government had decided that no more than fifteen people could attend funerals and only five at weddings. It also permitted the broadcasting of religious ceremonies. The limit was particularly problematic for Jewish weddings, which necessarily involve ten men and were thus impossible. Jewish believers challenged the restriction in front of the Council of State. While the decisions pronounced during the first lockdown were relatively short and procedural, the Council of State reviewed here thoroughly the principles at hand. It stated first that religious ceremonies are at the heart of freedom of religion. Then, the Council did a proportionality analysis and observed that it was almost utterly impossible for the claimants to practice their religion collectively. Besides, there was no justification for the different limits imposed on weddings and funerals. The conclusion was that the restriction did not appear to be proportionate. As for the extreme emergency, the Council of State considered the impossibility of holding long-planned weddings.

About two weeks later, the Belgian Council of State pronounced three decisions (here, here and here). In these cases, the Council of State judged that the measures were proportionate since places of worship remained open for individual prayers and now for all ceremonies up to fifteen people. The Council considered that it was not a problem that the limitation of the numbers of allowed attendees did not depend on the surface of the place. According to the administrative court, religious ceremonies are different from other activities such as shopping because they are collective and not individual. The Council of State added that the last decision of the French Council of State was irrelevant and could not be transplanted to Belgium. Finally, the Council observed that the representatives of the three main religions did not object to the limit of fifteen people, assuming they would have if the limit were too stringent. Thus, the Council of State decided there was no severe infringement of freedom of religion.

How to fix a numerical limit?

In the United Kingdom, the rules were more restrictive during the first lockdown. Belgium was the most flexible for weddings since they could only occur in case of an emergency in France and the United Kingdom, for instance if one person was severely ill. Besides, churches were closed to individual prayer, contrarily to Belgium and France. The United Kingdom was also the last of these three countries to allow religious ceremonies to resume after the first lockdown.

During the second lockdown (beginning in November 2020), the British Government decided firstly to prohibit all religious ceremonies, except funerals up to thirty people. Secondly, a four tiers-system entered into force in December. In Tiers 1, 2, and 3, weddings can occur with a maximum of fifteen people, excluding the minister. The limit is six people in Tier 4. For funerals, all Tiers permit up to thirty people in attendance. As for usual religious ceremonies, the Government allow them in all tiers. There is no fixed limit, but a risk assessment is mandatory for religious authorities. Thus, it appears that France and England have currently the same rules, except for weddings, while Belgium remains stricter. In addition, several practical recommendations are applicable: for instance, it is preferable that only one person sings, that the volume of music is kept low enough to prevent people from shouting, or to avoid sharing items such as prayer books. While some recommendations restrict freedom of religion, they do not harm its core.

Besides, one can wonder how governments fix the numerical limits. Why did Belgium allow thirty people at funerals during the first lockdown and only fifteen during the second one? Why did France allow twenty people at funerals during the first lockdown and thirty during the second one? Why be stricter towards weddings than funerals?

To conclude, the most proportionate decision is perhaps the one pronounced by the French Council of State in November’s “déconfinement” about the importance of the surface in religious places to determine the number of allowed attendees. However, would the French Council of State uphold this decision when infections rise? Furthermore, the curfew now raises a similar proportionality issue, because the time available to attend religious ceremonies is restricted. For now, the British Government seems to have chosen to maintain ceremonies with no fixed limit. More people can attend a religious ceremony if it happens in Canterbury Abbey than in Culbone Church. Maintaining religious ceremonies is a courageous decision that reflects their consubstantial symbolic and social dimensions, but setting a proportionate limitation remains difficult.

Posted by Romain Mertens (University of Namur)

This post has been amended on 19th February 2021 to include a reference to case law in England in the first paragraph.