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Religious freedom didn't fare well during our COVID response

Religious freedom is a fundamental human right, but during New Zealand’s COVID-19 response it wasn’t always treated that way.  

I’ve written a submission to the Royal Commission of Inquiry into COVID-19 Lessons Learned, on behalf of the independent think tank Maxim Institute. The submission argues that there are five important constitutional lessons from New Zealand’s pandemic response, including that we need to restore religious freedom, which during the pandemic was “either left out completely or treated in a way that undermined its status as a constitutional right.” For example, the submission notes that Government officials failed to consider the rights to conscience and religious freedom when they considered the impact of various laws on human rights.  

Court cases also treated religious freedom in troubling ways. For example, the submission reviewed the most recent case, Orewa Community Church and others v Minister for COVID-19 Response, where Christian and Muslim applicants challenged COVID-related restrictions on faith-based gatherings. The submission argued that this case was wrong in important ways; first, because it suggested that:

religious freedom will be given less weight if there is “a range of views,” that is, if adherents are not unanimous or if there is no strong consensus [about a religious matter]. This cannot be right. No group of any size is unanimous about significant issues, nor is there often a strong consensus; if the mere presence of a range of views on social and cultural controversies is enough to downgrade a right, it is worth very little in the first place. It is certainly not being treated as a fundamental human right if it can be disposed of or diluted so easily. The decision also suggests that rights should receive less protection if they [are] held by “a group whose views are not widely shared.” This cannot be right either; in fact, it is back-to-front. Human rights are supposed to protect minorities from the power of the majority. The fewer people hold a belief, the more important human rights guarantees are.

A key issue for the Commission, as Lady Deborah Chambers KC has said, is “whether the indisputably large inroads into our liberties,” like the restrictions on religious freedom, “were justifiable”. This should be part of a wider assessment of the constitutional implications of our pandemic response, looking at all the ways in which public power was wielded.  

Ultimately this matters because, as the submission says, “constitutions are about people—all the rules, institutions, ceremonies and offices are meant to advance the interests of actual flesh-and-blood human beings, and if our constitutional discourse forgets this it is not merely arid but futile.” We hope that the Commission’s important work helps us all to respond better to the inevitable next emergency.  

You can access the submission on Maxim Institute’s website.

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Alex Penk
March 25, 2024
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