Litigating Religious Freedom in the Time of COVID-19: A Comparative Analysis

Courts have received a huge amount of applications concerning COVID-19 provisions and processed multiple legal challenges concerning ad interim relief against emergency measures, often resorting to urgency procedures. Such exceptional procedures have led to summary judgements where legal matters concerned were scrutinized in a limited way. However, courts have given a significant contribution to a crucial challenge: clarifying whether and to what degree fundamental rights can be subject to restrictions due to an unprecedented health crisis. The present paper demonstrates that although in various legal contexts courts have scrutinized cases following multiple standards of review, a common playground can be found. First, it analyzes how at the outset of the pandemic the judiciary recognized a high level of deference to the executive boards. Second, it investigates how, in a subsequent stage, courts scrutinized restrictive measures more carefully, in order to verify whether religious activities had been singled out for discriminatory treatment compared to analogous secular activities. Third, it argues that in some cases courts have been tempted to interfere unduly in church matters, assessing and minimizing the impact that government’s measures can have on religious practice. Finally, it explores whether, and to what extent, the pandemic courts moved forward to revisiting their ordinary standards of review.