7 June 2021 – Online conversation
The event in brief
The conference was organised as part of the Central European Professors’ Network 2021 and coordinated by the Ferenc Mádl Institute of Comparative Law.
The webinar focused on the questions that the Covid-19 pandemic poses in terms of religious freedom and conscience, and how it influences current religious liberty issues around the world. Apart from examining the relevant legal aspects of the pandemic, the speakers provided a broader evaluation of the situation, including key sociological and political factors. Pázmány Péter Catholic University in Hungary and the University of Toledo in the USA were among the speakers.
Programme:
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 do 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 given by Lee J Strang. Professor Strang began by giving a brief history of religious liberty law in the US, emphasising that it arose from a relatively robust, but ‘thin’ religious pluralism. While early Protestants had different views on theological issues, they shared a fairly common ground in other aspects of life. The lecture’s thesis argument was that the increased religious pluralism of the late 20th century put pressure on religious liberty protection, especially because the number of non-religious people who considered religion as detrimental and in need of regulation grew. Professor Strang described the 1972 Wisconsin
v. Yoder case, exempting Amish children from compulsory education in the 8th grade, as a high point of religious liberty protection and contrasted it with the 1990 Smith v. Employment Division case which established the present level of religious liberty protection. According to the Smith decision, this protection only protects religious communities against regulations that target religious activities, but does not grant exemptions in neutral regulations. According to the decision’s underlying logic, due to the ever-widening range of what constitutes ‘religious activity’, it was necessary to prevent religious practice to become a ‘get out of jail’ card against regulations applicable to everyone. However, Professor Strang stressed that the Supreme Court currently has a number of justices who believe that religion is valuable and worthy of protection, and might be inclined to depart from the Smith decision’s rigorous criteria. In the last part of his lecture, the speaker discussed how Covid restrictions could help achieve this goal, citing existing cases such as the Roman Catholic Diocese of Brooklyn v. Cuomo ruling to demonstrate his point.
The next presentation, ‘Freedom of religion in a pandemic – Does it make any special?’ given by Balázs Schanda focused on how Hungarians responded to coronavirus-regulated religious activities. Professor
Schanda reminded the audience that in the event of a global pandemic, exceptions and privileges will undoubtedly be necessary. The question of who can benefit from these privileges is crucial. When comparing the three waves of the virus that hit Hungary, it can be established that the first one imposed stricter restrictions than the other two. Overall, the restrictions could be characterised as relatively simple and unchanging, making them easier to follow. With regard to religious liberty, the government chose to grant religious communities the autonomy to determine appropriate ways to prevent the virus from spreading. It was not the only viable approach, because the Fundamental Law, in contrast to the previous constitution, allowed for the suspension of religious freedom in case of a state of emergency. However, this approach allowed religious communities to come up with slightly different solutions to counter the effects of the virus, even if they all followed the government’s policy. The reasons for this preferential treatment can be traced back to a variety of sources. Religious gatherings mostly attract individuals from a smaller area than sports events or concerts, therefore, the risk of facilitating the spread of the virus is reduced. Moreover, historical churches often have access to archives of similar past events and can promptly impose adequate restrictions. Another explanation could be the state’s long-entrenched cooperative relationship with religious communities. However, Professor Schanda suggested that in such a unique case, it is reasonable to presume that no rational solution can be found. He also noted that Covid regulations are difficult to examine from a legal standpoint, weighing the necessity and proportionality of each measure separately, and that the pandemic should be examined holistically in order to draw conclusions for the future.
In his presentation ‘Freedom of conscience in a pandemic–What questions does vaccination raise?’, Lóránt Csink examined the specific issues that Covid vaccination regulations bring to freedom of conscience. He pointed out that while the current public debate in Hungary over the Covid vaccines is not based on rational arguments, whether or not one is vaccinated has a significant impact on one’s social life. Covid vaccination has unique aspects from the perspective of constitutional law. While most legal systems across the world require mandatory vaccination, Covid vaccination, which is identical to seasonal influenza vaccines, is not required in nearly all countries. However, there are several restrictions in place in Hungary for people who have not been vaccinated, therefore, it might be considered semi-mandatory. Furthermore, it may be argued that refusing vaccination has more serious practical consequences in the case of this semi-mandatory vaccine than in the case of mandatory ones. In the next segment, the presentation analysed the Hungarian Constitution Court’s 2007 verdict on the validity of mandatory vaccination, with a special focus on the ‘comparative test of burdens’ used in the case. This test aims to establish balancing factors in cases when an exemption is requested, invoking freedom of conscience, from generally applicable legal norms. The findings of this case were compared to the current scenario to explore their similarities and differences. Professor Csink summarised his findings by stating that many questions remain to be answered by the scientific community in order to establish the constitutionality of various regulatory measures for Covid vaccination. Individual freedom of conscience must be respected, and differences in individual beliefs must be recognised; therefore, pursuing a reasoned argument on the subject might be the most effective strategy to persuade people. Although mandatory vaccination would probably be constitutional, it is socially harmful because many people do not believe that vaccination is helpful. In the case of semi-mandatory measures, access to facilities and services should be linked to health rather than vaccination, and the law should accept alternative proofs in accordance with the need and proportionality criteria.
István Sabjanics, the event’s moderator, addressed the framework of international law protecting freedom of conscience and religion, with a specific focus on African regional human rights mechanisms and South Africa in particular. In this regard, the discussant explained that unlike 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 African regional human rights regime allows considerable room for member states to pursue 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 contentious issues, with both legal and cultural arguments on both sides. Due to the tragic experiences of apartheid, many people in South Africa are suspicious of government mandates, making mandatory vaccination difficult. Another way is to empower employers to require proof of vaccination from their employees; however, this plan might face resistance from employers as well, and it may be seen as unreasonable. 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. In contrast, a unique argument in favour of mandatory vaccination might be to invoke the principle of ‘Ubuntu’, a special concept in South Africa that encourages people to act in a manner that benefits the greater community. Earlier instances in South African jurisprudence relied on this principle, allowing for mandatory TB treatment against the applicant’s will, for example. Nevertheless, the speaker emphasised that disobeying international health regulations and corruption affecting the distribution of vaccines could cause more problems in the country than mandated vaccination.
The presentations were followed by a discussion on two main issues. The distinction between the treatment of religious communities in European legal systems and US religious law was investigated, and the role it played in Covid restrictions on religious activity. Another point examined was the responsibilities the scientific community and political decision-makers have in enacting Covid-related restrictions and regulations.
