Religious freedom continues its slide down the hierarchy of protected rights
The courts won’t protect what society doesn’t understand or value
The relationship between faith and social acceptance is changing fast. Yesterday’s majority is today’s minority; what was generally accepted and valued is now marginal. Religious people know this instinctively, and recent court decisions have confirmed it. On the surface, religious freedom is a protected human right—but in the face of widespread social incomprehension, that protection is waning. The High Court’s latest COVID decision continues this trend. Churches and mosques united to argue that some COVID-related regulations, like gathering limits that restricted in-person services, went too far and breached the New Zealand Bill of Rights Act. Running into a temporal and technocratic approach, they lost.
Muslim and Christian applicants argued that online services didn’t allow them to fulfil God’s commands and that this breached their right to manifest their religious beliefs. The mosques led evidence that Muslims’ obligation to take part in Friday prayers could not be fulfilled at home, and that gathering restrictions made it impossible for them to run daily prayer services. The churches argued they were prevented from fulfilling an obligation to worship in community and that using vaccine passes divided the church on unbiblical lines. Of course, these positions are contested but that didn’t rule them out—as the Court said, sincerely held religious beliefs quality for Bill of Rights Act protection and the judge accepted that the Government’s COVID restrictions limited the applicants’ right to manifest their faith. But the Bill of Rights Act says that limitations on rights are only unlawful if they are unjustified—and this is where things get interesting.
We hear a lot about the importance of spiritual wellbeing, yet it didn’t even register on the Court’s radar. The Māori health framework, Te Whare Tapa Whā, acknowledges that one of the four pillars of health is ‘taha wairua’, the spiritual dimension. It’s promoted in schools, throughout the health system, even by the Health Ministry itself. But when it weighed up the health risks of COVID the Court looked only at the risks to public health and to life—roughly, two of the four pillars. Worse, the Court didn’t even go beyond health issues to weigh other risks, like the consequences of failing to fulfil religious duties. It’s an approach that prioritises the here and now, this world over the next, the temporal over the eternal.
The Court’s approach was also technocratic, almost algorithmic. Having established public health risk as the key issue, it accepted the Government’s evidence that risk should be measured by the Secondary Attack Rate (SAR), “the percentage of contacts of an index case that become a secondary case.” Religious gatherings had a SAR of 8.6 percent; they were therefore high risk, featuring COVID-spreading activities such as singing, hugging, communion, and sharing food and drink. Debate centred on whether masks, hand hygiene and physical distancing could lower these risks, but not on whether other measures could lower these risks—maybe by holding services without singing, communion, or morning tea after the service. The SAR was the SAR, and that was that.
Deciding whether limits on rights are justified involves a balancing exercise, one that contains an immense amount of subjectivity. This subjectivity lurks under an apparently objective and neutral formula—the Courts ask whether limitations are rational and proportionate—but it’s there nonetheless. This is why a right that looks compelling on paper can be watered down in practice. The actual protection given to religious freedom will depend on how the judge, the parties, and society at large understands the value and purpose of religious faith. The Court’s temporal and technocratic approaches came together in its comparison of religious gatherings with other COVID-restricted activities. Some, like schooling, were less restricted because they had a lower SAR while others, like supermarket shopping, were less restricted because they were “essential”. The message is clear; expressing your faith is a nice-to-have, a non-essential.
The treatment of minority views was also disconcerting. There was disagreement between the expert witnesses on what religious obligation requires. The applicant churches and mosques provided theological evidence on what they saw as their duties; the Government countered with its own theological evidence rebutting the churches’ evidence (though not the mosques’). The Court concluded the disagreement meant the COVID restrictions were a justified limit on the “rights of a group whose views are not widely shared.” But human rights are meant to protect those outside the mainstream; that is one of their core justifications.
Finally, as the Court rightly said, we are interconnected creatures and our actions affect our neighbours—but that logic seemed to cut one way only. “Risks incurred in places of worship impact others,” said the Court, and weighed that against the applicants’ right to practice religion. But it didn’t acknowledge that the choices and actions of the majority impact the minority in just the same way.
Whether or not you believe, you should be concerned by this case. Even if the concerns I’ve raised wouldn’t have made any difference to the outcome in this particular case, the approach reveals a worrying lack of comprehension of what at least some of us think are among the most important questions in life. People of faith can’t be confident that the courts will protect their beliefs—or even understand them.
This is an important issue, Alex, that gets little attention in today's world of novelty. Thanks for raising it.
Sadly, naïve wokesters believe simplistic rights-based laws can replace spiritually-inspired religious guidance and fail to appreciate the complexity of the human spirit and its striving to live well and redemptively in an ordered society. Rather than initiating endless "rights laws", these issues are far better addressed by the more complex tenets of established religions, which were developed over long periods of time by individuals more academically and philosophically competent than moderately-educated ill-read Marxist-inspired populists.
Alex,
I do like your writing, but in this, you could have summarised it in a few words: The Court, inevitably, favoured the government‘s position.
We have all witnessed the overreach these past couple of years this government has been able to achieve, with its absolutist dogma, and along with a supplicant media, the judiciary has shown its weaknesses in standing up to that dogma.
Saint Ashley and the cult of Jacinda at their pulpit of “Truth” is the only religion left to defend. The thought of undermining this new ‘progressive’ religion, after all the harm they’ve done, would be seen as heresy. Something few Judges would have the courage to rain down upon themselves in the political climate of these times we are living through.