Freedom of religion and places of worship during Covid-19

Abstract

With reference to places of worship, this article considers the justifiable extent to which freedom of religion may be limited within the context of a global pandemic. While the article focuses on the 2020 South African case of Muhammed Bin Hassam Mohamed v The President of the Republic of South Africa, it also draws on five USA cases for comparative purposes. The article demonstrates that the judiciary in both jurisdictions relied on the jurisprudence of their domestic freedom of religion clauses to determine the outcome of their cases. During the earlier stages of the Covid-19 pandemic, it appears that the South African and USA judiciaries were inclined to sacrifice freedom of religion in the interests of the greater good. However, this was achieved at the cost of applying their jurisprudence on freedom of religion incorrectly. By doing so, they unjustifiably treated religious activities more harshly than secular activities. The later three US cases illustrate that, even during a global pandemic that has killed millions of people worldwide, the judiciary remains under an obligation to ensure that freedom of religion is protected, especially when less restrictive means are available to do so.