In an extraordinary development, High Court Judge, Charles Meenan, has given the State two weeks to clarify whether there is a legal basis for Covid-19 restrictions on people attending religious services or whether they are merely advisory.
The issue arose because businessman, Declan Ganley, has challenged the constitutionality of the Level 5 restrictions which prevent people from attending mass. His challenge began last November. It is troubling that in late March, legal representatives for the State were unable to answer the question immediately.
It seems to confirm what a recent report commissioned by the Irish Human Rights and Equality Commission (IHREC) asserted, that is, that there has been a ‘blurring of the boundary between legal requirements and public health guidance, something which is fundamentally out of step with the principle of the rule of law.’
Prof Oran Doyle, one of the IHREC report's authors and professor in law at TCD said in a recent blog that gardaí around the country have formed the mistaken belief that attending religious services is legally prohibited. He believes that this is unsurprising, given that "Government statements frequently encourage people to believe that their legal obligations are more restrictive than is, in fact, the case."
Not only does it treat people like infants but it also makes it far less likely that people will cooperate voluntarily with restrictions
There was considerable anger among those over 70 when it was confirmed last April that there was no legal obligation to cocoon, just public health advice. The Irish State does not seem to have learned from that experience.
This should trouble all of us, no matter what our perspective on public worship is. Not only does it treat people like infants but it also makes it far less likely that people will cooperate voluntarily with restrictions.
Of course there should be some restrictions on public worship in the interests of the common good but they should be thoughtful, proportionate, and imposed for the shortest period necessary.
Compare how churches and schools have been treated. We all accept that keeping schools open is a vital public good. We also know that mass goers tend to be older and therefore more vulnerable but it does not explain the mantra that schools are safe but churches are not.
It was astonishing that up until mid-week, at a time when Covid-19 figures have plateaued at a worryingly high level, teachers and students were being told that they could not wear masks during oral examinations in case the recordings would be muffled.
Naturally, the screeching brakes of yet another u-turn were eventually heard.
In contrast, any act of public worship is deemed to constitute an unacceptable risk until we reach Level 2, despite the fact that churches are usually cavernous in comparison to the average overcrowded classroom, and an army of lay volunteers around the country supervise and sanitise places of worship before and after every gathering.
The restrictions on funerals are particularly cruel. This is not primarily a religious issue because it affects humanist ceremonies too, but the vast majority of funerals still happen in Christian churches.
There have been a number of egregious breaches at funerals but in general, these have been despite the best efforts of priests. They happened when those attending simply refused to comply with regulations not just in the church but at wakes and post-funeral gatherings.
It might be a better use of police time if they acted more often as supports for priests facing uncooperative mourners rather than issuing fines of dubious legality to priests who do not close their churches during religious services.
The Scottish Court of Sessions found this week that a ban on public worship and the closing of churches were unlawful because compliance with guidance in places of worship was generally good. There were other less restrictive measures that could have been taken instead.
Online services are incapable of being acceptable substitutes for public worship. The highest Scottish Court found that while some aspects could be replicated online, “some aspects of worship could not – for example, baptism, communion and (in the case of Roman Catholics) confession.” Why is our own post-Christian government incapable of seeing that? It has been particularly insensitive when it comes to Easter, the celebration of the most significant moment in Christianity.
Ireland is an outlier in Europe regarding the severity and duration of the ban on public worship. Public worship has been banned so far for 35 weeks whereas even in traumatised Italy the ban only lasted for about nine weeks with some limited restrictions after that. The fact that far higher numbers attend church in Ireland than Italy does not matter if strict safety measures, low numbers, and swift dispersal are implemented at each individual service.
Even in the absence of legal restrictions, some Irish churches or faith communities may decide not to re-open or to allow very small numbers to attend because they understand the need to balance religious freedom with the demands of the common good.
As we approach the most sacred religious season in Christianity, the State urgently needs to show some faith in religious communities. It needs to acknowledge how careful and responsible they have been by restoring public worship long before we reach Level 2.