The Battle over Proportionality and Essentiality: Limitations to Freedom of Religion or Belief During the Pandemic in Brazil

Abstract

Abstract Emergency responses to the Covid-19 pandemic have generated debates over the scope and reach of government powers in the exercise of freedom of religion or belief (FoRB) and the compliance with international and constitutional provisions. This article argues that the standards used by the Brazilian Supreme Court to scrutinize the limitations imposed on religious activities were incomplete because they focused on the temporality of the restrictions and the factual situation of hospitals’ capacity. Although these are fundamental factors, the Court should have assessed the principle of proportionality between the objectives pursued and the means adopted. Furthermore, the unilateral “essentiality strategy”, used both at federal and state levels was problematic and generated more problems than solutions vis-à-vis religious groups. Instead, a collaboration-driven approach that stays away from debating whether or not a religious activity is essential should be used in the event of future health outbreaks.