Photo: Jesse Wagstaff, via Flickr.

Public health orders restricting in-person gatherings have faced legal challenges across Canada. The argument is that these orders are contrary to the Canadian Charter of Rights and Freedoms, especially its guarantee of “freedom of religion.” Many of these challenges have been organized or funded by the Justice Centre for Constitutional Freedoms, a Calgary-based NGO headed by John Carpay, which considers COVID-19 a “political pandemic,”¹ but more mainstream civil libertarian organizations such as the Canadian Civil Liberties Association have also been involved. So far these challenges have been unsuccessful, although much remains undecided.²

Similar battles have played out in the United States, but with more uneven effect. The U.S. Supreme Court has visited the question of whether public health restrictions on religious gatherings violate the free exercise guarantee of the First Amendment on three occasions. Each of its decisions has been divided, and none of them have been final.³ Its most recent decision, issued shortly after Ruth Bader Ginsburg’s death, was deeply divided on partisan lines with Justices Sonia Sotomayor and Elena Kagan accusing their Republican-appointed colleagues of playing a “deadly game in second guessing the expert judgement of health officials.”

It is hard to imagine a creature less interested in the subtleties of rights, law or ideology than the SARS-CoV-2 virus. It relentlessly focuses on its Darwinian mission of using the resources of human cells to make copies of its genetic material. But like everything else that fulfils that mission by spreading through networks of interacting human bodies, it both shapes and is shaped by all aspects of society, very much including the constitutional law of liberal democracies.

We usually think of rights as being about individuals. “Collective” rights seem exotic to Western, Educated, Industrialized, Rich and Democratic (WEIRD) people. At best, they make sense as a concession to vulnerable minorities. Normal rights – the kinds of rights everyone in Western societies gets to claim – are thought to be claims against society by an individual acting alone. But the COVID-19 pandemic makes clear – in the most literal possible sense – that these old-fashioned liberal Enlightenment rights like freedom of religion or expression, mobility and even privacy are about social interactions. Because social interactions are also how the virus spreads, interpretations of these rights shape the course of the pandemic.

In addition to demonstrating how social “individual” rights are, the pandemic has also put stress on Isaiah Berlin’s distinction between “negative” liberty (against state action and private coercion) and “positive” liberty (enabling people to fulfil their capacities). This distinction plays a controversial role in political philosophy. It is also embedded in Canada’s Charter of Rights. Section 32 makes it clear that the Charter only applies to governments and legislatures, reflecting the classical liberal idea that it is the state that threatens rights and freedoms.⁴ Section 7 protects a right to “life” and “security of the person” – rights very much at stake when a deadly novel virus is spreading exponentially through an immunologically naive population. But on closer inspection, it turns out that the Charter only protects these rights from “deprivation” by the state. Those who need protection by the state against the free action of others have to make creative arguments in Canadian courts under the Charter. (To be fair, those countries that explicitly recognize “positive” rights have also struggled with meaningfully vindicating them.)

Human beings in general, and lawyers in particular, are bad at thinking through exponential growth. If the average infected person goes on to infect more than one other person, and if this is sustained, then the number of infections in a naive population will explode. As Italy and New York proved to the world in the spring of 2020, no health care system – no matter how advanced – can cope with the consequences. The only responsible strategy on the part of public health authorities is therefore (a) to try to drive the number of infections to zero and then try to keep it there by restricting entry from more infected places (the “zero COVID strategy”) or (b) to keep the number of cases from increasing above what the health system can handle by keeping the average number of persons infected by each infected person around 1 (the “flatten the curve strategy”).

Until vaccines could be deployed in sufficient number, the only realistic way of keeping case numbers down involved keeping people apart and/or keeping them under surveillance. There was no way to avoid a confrontation with liberal rights, especially when those rights are understood in an absolute or “deontological” way (i.e. regardless of consequences). The SARS-CoV-2 virus may not care about the West’s longstanding ideological fixation on the conflict between the state and the rights of the citizen, but any attempt to stop the spread of the virus was bound to get caught up in that ideological fixation.

It was not surprising that this conflict would take its sharpest form in the American court system. Americans are litigious and their judiciary has become increasingly ideologically polarized, while the Trump Administration’s response to the pandemic created a deep partisan divide around “lockdowns.” To be sure, there are some ideological ironies in the way the free exercise of religion cases have played out. Justice Antonin Scalia – the longtime lion of conservative jurists who died in 2016 – was the author of the 1990 Employment Division v. Smith decision,⁵ which held that the First Amendment did not protect religious practices from generally applicable laws unless their “object” is the prohibition of those practices. While it is not hard to find people on the internet who think that public health measures are motivated by hostility to religion in general or Christianity in particular, real officials – no matter how secular their personal belief system – are anxious to get support and “buy-in” from religious communities. Unsurprisingly, there has been little evidence of antireligious animus presented to any courts.

In addition, control of communicable diseases has long been understood to have a special status as a justification of governmental measures that would otherwise be unacceptably coercive. Quarantines in the pre-antibiotic era were drastic everywhere, including in the United States. George Washington’s administration was faced in 1793 with a yellow fever epidemic in Philadelphia, then the American capital. Other states quickly moved to detain ships and travellers from Philadelphia, although the tiny federal government of the time did no more than hasten its own relocation to the District of Columbia. After the Civil War, the Supreme Court decided that the Fourteenth Amendment prevented states from exercising their powers in a way that infringed the liberty of employees to agree to long working hours, but was unsentimental about liberty when it conflicted with curtailing the spread of infectious diseases.⁶

Given this history of interpreting liberties in light of public health needs – well supported by liberal political theory, which has always permitted state intervention when individual actions directly harm others – why did COVID-related measures become so controversial within the American court system? There is no question that some of the explanation lies in the ideological divisions laid bare by the fierce battles over replacing Justices Scalia, Kennedy and Ginsburg with Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. Journalistic accounts were not wrong to highlight this dimension, as well as Chief Justice John Roberts’s role as a swing justice.

But reasoning matters too, and much of the legal debate turned on how to understand what counts as a “law of general application.” In 1990, Justice Scalia said the state would be on solid ground if it implemented measures that were not intended to disadvantage religious practices. By 2020, the conservative justices insisted on a much more muscular notion of evenhandedness between religious and secular activity. When Chief Justice Roberts upheld California Governor Gavin Newsom’s executive order at the end of May 2020, he pointed out that various secular activities – including lectures, concerts, movie showings, spectator sports and theatrical performances – were subject to similar or more severe restrictions. Californians could gather in no greater numbers to hear a reading of Richard Dawkins’s God Delusion than to hear a passage from the book of Genesis. By contrast, Justice Kavanaugh, speaking for the conservative wing of the court, pointed to grocery stores, restaurants and factories, where more people were allowed.

In such comparisons, everything turns on what is considered comparable. While the virus does not care about the reasons people gather, it will transmit more easily depending on how they act once they are together. No indoor gathering of any size is entirely safe in a pandemic, but a number of factors make a difference: the prevalence of the virus in the community, the demographic profile of those present, the behaviour of people once gathered (singing, chanting and loud talking are particularly likely to spread the virus) and how likely people are to comply with mandates that they stay away from one another (presumably more likely in more transactional situations).

An additional difficulty is that “flattening the curve” is about managing the average number of transmissions in the community. While every death is a tragedy, it is not in the nature of public health to be able to prevent every death. A flattening-the-curve strategy involves avoiding increases – especially sustained increases – in the number of cases. No jurisdiction has attempted a total lockdown of a year or more – those that have successfully implemented a “zero COVID” strategy have not had to and those that have sought to flatten the curve have tried to maintain schooling, other health services and economic activity to the extent consistent with that strategy. This necessarily involves choices.

Chief Justice Roberts and the liberal members of the U.S. Supreme Court – while willing to scrutinize some measures they thought went too far – were also willing to allow some flexibility for choices by those accountable to the electorate. But by November, a conservative majority established an approach of looking at restrictions on religious activity that went beyond any secular comparator with the eyes of “strict scrutiny.” This follows a trend in American rights jurisprudence, found on both right and left and criticized by Columbia Law School professor Jamal Greene in his recent book How Rights Went Wrong, of viewing rights as “trumps.”⁷

Canadian constitutional law has always been more willing to protect religious practices from unintended restriction than the U.S. Smith case. But it has also been more willing to give governments latitude than the deontological tradition in American law, especially in the protection of public health. To be fair, not all American judges take an absolutist approach to rights – and sometimes Canadian fuzziness can make it difficult to predict how cases will be decided. But while it is possible that Canadian courts will take an approach like that of the conservative justices in the United States, so far that has not happened.

The first set of cases that have been decided in Canada involved applications to “stay” public health orders until the constitutional issues could be fully argued. This is generally a hard, but not impossible, thing for a person challenging governments to obtain. In the case Canadian lawyers still refer to, the tobacco companies facing the Chrétien government’s proposed unattributed health warning on cigarette packages failed to get an exemption while the case went to the courts, even though they (rightly or wrongly) ultimately persuaded the Supreme Court that their “freedom of expression” was unjustifiably infringed.

In light of the more urgent public situation of a pandemic compared with the chronic health issue of smoking, it is perhaps not surprising that preliminary “stay” applications have been rejected by Ontario, Quebec, Alberta and Manitoba courts. A Newfoundland and Labrador trial court has rejected a challenge to the “Atlantic Bubble” policy of keeping residents of other provinces out – while it accepted that this policy violated mobility rights guaranteed by section 6 of the Charter, it saw this as a “reasonable limit” of the kind the Charter’s section 1 allows. The case is being appealed by the Canadian Civil Liberties Association.

In British Columbia, I was part of a small team of lawyers for the defence in a constitutional challenge to Dr. Bonnie Henry’s Gatherings and Events Order (Beaudoin v. British Columbia). This order restricted in-person religious gatherings, with exceptions for limited-attendance baptisms, funerals and weddings – and later small outside gatherings, first for Orthodox Jewish congregations and now for anyone whose practices are consistent with outdoor gatherings.

By the time the case got to court, Dr. Henry had already exempted outdoor political demonstrations: B.C. Supreme Court Chief Justice Christopher Hinkson held that an earlier blanket ban on those was an unjustified infringement of freedom of peaceful assembly in light of the evidence and situation at the time. But he upheld the restrictions on in-person religious gatherings, specifically approving of Dr. Henry’s consultative style. As he noted, genuinely comparable religious and secular activities have been treated equally. Religious and secular education, for example, have both been allowed, as have religious and secular weddings and funerals. Like the Atlantic Bubble case, this case has been appealed; meanwhile,  other challenges are before the courts across the country.

I cannot pretend to be a neutral observer, but I think that, so far, the Canadian approach better reflects what a legal system can appropriately do. Judicial review can make public health decisions more transparent and evidence-driven, so long as it is sensitive to legitimate needs to make decisions quickly – and therefore necessarily before all the evidence can be in. Epidemics, like life, can only be fully understood backward, but must be lived forward. Lawyers and judges need not accept unreasoned claims of “expertise,” but they should have appropriate humility in relation to their ability to evaluate the management of inherently complex problems. This is especially true when one of those complex problems is the judicial system itself, and especially its accessibility for ordinary people – and neither lawyers nor judges have figured out how to fix it. But most of all, lawyers should always recognize that “rights” are inherently social claims, and that it is society that must negotiate their resolution.

To read more on religion and public health in the age of Covid, click to read Holy or Irresponsible by Martin Lockshin.

Notes

¹ See Justice Centre for Constitutional Freedoms, TRAILER: Covid – The Political Pandemic (video).

² Toronto International Celebration Church v. Ontario (Attorney General), 2020 ONSC 8027; Springs of Living Water Centre Inc. v. Manitoba, 2020 MBQB 185; Ingram v. Alberta (Chief Medical Officer of Health), 2020 ABQB 806; Conseil des juifs hassidiques du Québec c. Procureur general du Québec, 2021 QCCS 281; Beaudoin v. British Columbia, 2021 BCSC 512 (upholding health order prohibiting most in-person religious gatherings); Although less common, there have also been court challenges by those who argue that public health orders do not go far enough: Trest v. British Columbia, 2020 BCSC 1524

³ South Bay United Pentecostal Church v. Newsom, 590 US __ (29 May 2020) (upholding order restricting number of worshipers to lesser of 25% of capacity or 100 attendees); Calvary Chapel Dayton Valley v. Sisolak, 591 U.S. __ (24 July 2020) (denying injunction limiting religious gatherings to 50 people); Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U.S. __ (25 November 2020) (enjoining enforcement of 10- and 20-person occupancy limit). None of these are final decisions.

⁴ As pointed out by Allan Blakeney, who as NDP Premier of Saskatchewan in 1981 both participated in the creation of the Charter and remained a sceptic about its potential to bring about social justice. See my interview with Blakeney, Judges: Canada’s New Aristocracy.

⁵ Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990).

⁶ Lochner v. New York, 198 U.S. 45 (1905); Jacobson v. Massachusetts, 197 U.S. 11 (1905).

⁷ Jamal Greene, How Rights Went Wrong: Why Our Obsession with Rights is Tearing America Apart (New York: Houghton Mifflin Harcourt, 2021).