FOR much of the past year, it has been illegal for the people of Scotland to go to church in person. That strange reality ended abruptly last week when a group of church leaders succeeded in their claim against the forced closure of church services.

The judge to hear the case, Lord Braid, ruled that the Scottish Government had acted unconstitutionally in forbidding public worship as a response to the pandemic. Alongside this, he concluded that the ban on public worship exercised a disproportionate interference in Article 9 of the European Convention on Human Rights, an article that guarantees free religious expression as core to liberal democratic society.

For the 800,000 Scots who attend church, this is a striking development. However, its significance goes far beyond that part of the population. Freedom of religious expression matters across all of society, even in a secularising, post-Christian one like our own.

This is so because freedom of religion is the product of a host of other essential freedoms: it requires, and is also required by, the freedoms of conscience, belief, expression, and assembly. In a society where only state-approved forms of religious expression are legal, one (or more) of those liberal pillars has collapsed. As such, religious freedom is a canary in the coalmine of healthy democracy. It should be watched carefully by all, regardless of their own religiosity, precisely because it protects freedoms far beyond its own.

To religious Scots, Lord Braid’s conclusion is unsurprising: throughout lockdown, the Government has told us that we were still free to worship, but that this worship must take place in our own homes. To many, though, that directive is easier preached than practised.

While some parts of Scotland’s religious community believe and worship in ways that can migrate from church pew to sofa with relative ease, for others this is an impossibility. Lord Braid’s judgment is sensitive to the diverse realities of religious worship across Scotland, including those whose worship is tied to place, and requires in-person participation.

To draw one contrast: many low church evangelicals certainly miss their immediate connection to their fellow believers during their weekly Zoom services, but their theology nonetheless allows for a sense of direct connection to God that works even when church is virtual.

Conversely, Scotland’s Catholics, whose religion is more tied to real-world people, places, and objects, have been hit hard. Unable to participate in sacraments or attend confession, they have found themselves legally banned from practising their religion. In their case, the argument that they are still free to practise their religion, as long as that happens at home or online, is meaningless.

Of course, Article 9 recognises that in some extreme circumstances, a state has authority to limit religious expression: public health crises are an important example of this. However, it is also true that in such circumstances, these crucial freedoms should be temporarily limited with care, never taking one’s eye off the proverbial canary. If a religious practice can carry on in a way that mitigates the risks to public health, the state does not have the authority to ban that religious expression regardless.

In our own context, as Lord Braid has recognised, that is precisely the reality. Religious practices that do not work online, like confession for Catholics, can be modified in ‘covid safe’ ways, for which reason the blanket ban imposed on churches was wrong. A different approach was necessary.

The realisation of this is painful to many Scots, who now know that they have been denied one fundamental human right that is itself the expression of a range of other basic human rights. For them, Lord Braid’s verdict is both a relief and a shock: we are free to be our worshipping selves again, although the way we lost that freedom now looks murkier. Trust in our political leaders has been damaged, and now needs careful attention. The Scottish Government should not just brush this off.

What might the Government have done differently? Whether intentionally or not, in a public health crisis like ours, authoritarian limits on religious freedom treat religious people as part of the problem, rather than as citizens who can be trusted to contribute to the solution. Many religious people feel this deeply.

A heavy handed ‘legislation first’ approach treats us as untrustworthy and unreasonable, as bad faith citizens about whom the Government assumes the worst - namely, that if called upon to make personal sacrifices voluntarily in order to love our neighbours well, we might well refuse. And so, the starting point was simply to make public worship illegal. Given the importance, however, of freedom of religion to a healthy democratic society, that approach is neither desirable nor necessary.

Article 9 points to a better way forward. It reminds us that because acts of public worship allow us to express core individual freedoms, they are themselves necessarily voluntary. In pre-covid Scotland, church-going was neither forced nor forbidden. Every act of church-going was a choice to exercise that individual’s freedoms of conscience, belief, expression, and assembly. In view of that, the Government could have taken Article 9 to heart by asking us to use our freedom for the public good.

For Scotland’s Christians, this would been a good faith expectation to move worship online wherever possible, and to modify in-person practices wherever necessary. They could even have called us to do so by reminding us of our own highest ideals: to love God and neighbour in tandem. This would have been the path of freedom, rather than coercion, motivated by love, rather than fear of fines or imprisonment. Had this approach been taken, there would have been no shortage of volunteers. Love, after all, is stronger than fear.

Dr James Eglinton is Meldrum Senior Lecturer in Reformed Theology at the University of Edinburgh

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