Opinion: Brazilian states and cities can, and should, ban religious services during the pandemic

RIO DE JANEIRO, BRAZIL – (Opinion) Today, March 7, Brazil’s Supreme Court (STF) will hear cases involving the controversial question of whether states and municipalities can, constitutionally, issue a blanket ban on all religious services in their efforts to restrict contagion by Covid-19.

On Saturday, April 3, STF Justice Kassio Nunes Marques issued a temporary restraining order prohibiting governments from issuing or enforcing such a ban.  On Monday, April 5, STF Justice Gilmar Mendes rejected an almost identical petition seeking to abrogate São Paulo’s statewide ban.

A unanimous STF decision in December 2020 held that states and municipalities have concurrent jurisdiction with the federal government in fighting the Covid-19 pandemic, and can impose local restrictions more strict than those of the federal government.

Today’s decision should settle the question of whether, and to what extent, those restrictions can impinge on religious freedom.

Justice Marques argued that a blanket ban on religious services violates the constitutional guarantees of freedom of religion.  In his view, such services are “essential” to people’s wellbeing, so any restrictions must be specifically tailored to fit within restrictions generally imposed on essential secular institutions: reduced capacity, use of face masks, and physical distancing.

In this writer’s view, Justice Marques is simply wrong, for one basic reason – religious services are almost unique, among human gatherings, in promoting the spread of a fatal virus.

Full disclosure. This writer is a lifelong Christian, a “preacher’s kid” who, during life before the pandemic, attended church almost every Sunday. Regular attendance at worship is essential to Christianity: in Jesus’s words, “For where two or three are gathered together in my name, I am in the midst of them.” (Mt 18:20)

The challenge presented by the pandemic is that, where only 2 or 3 persons gather to worship, the coronavirus may (or may not) be in the midst of them; however, when 200 or 300 gather, let alone 2,000 or 3,000, the coronavirus is most definitely in the midst of them, working to infect and kill.

People in churches sing, they praise the Lord with a loud noise, they greet and hug each other, they hold hands to pray, they receive blessings and communion from each other’s hands, and they celebrate the promise of everlasting life.

By doing so, they transmit the virus that can end their lives.

Numerous studies have shown that the only events equal to religious services in facilitating transmission of the virus are enclosed sports or entertainment venues, such as stadiums, dance halls, or even bars, where fans gather, for hours at a time, to cheer on their favorites, together with their fellow enthusiasts.

Some try to compare religious services with public transportation, where people are often crowded together for up to an hour or more, even during quarantine. The analogy fails, because, unlike in churches, people on public buses, trams and subways consciously avoid unnecessary contact with others.

This writer believes that Justice Marques, seeking support for his position, was misled by another decision, the only one he cited in his own decision: one rendered by the United States Supreme Court (“SCOTUS”).

In November 2020, SCOTUS, by a 5-4 vote, told New York State that its regulation prohibiting more than 10 people from attending religious services was unconstitutional.

The majority held that the regulation “unreasonably” restricted people’s freedom to worship, because it imposed no such blanket ban on “bike shops, liquor stores, or acupuncturists”.

The majority ignored copious data showing that religious services last longer than visits to local shops, and that no one sings, shouts, hugs or holds hands in such venues.

This writer, therefore, submits that, even if religious services are “essential” to human wellbeing, they are also uniquely dangerous to human wellbeing. State and local governments, therefore, in their efforts to save lives, have every right to ban attendance at religious services during the pandemic.

The expectation is that Justice Marques’s decision will be overturned later today, and that the full STF will (correctly) decide that the freedom of religion does not prevent local governments from banning religious services during the height of a pandemic that is now killing over 4,000 people per day.