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Germany: Constitutional Court Denies Preliminary Injunction Against COVID-19 Measures Prohibiting Religious Services

(Apr. 16, 2020) On April 10, 2020, the German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) denied a preliminary injunction against a regulation to combat the novel coronavirus adopted by the state government of Hesse (Corona Regulation) that, among other things, prohibits religious gatherings in churches.

Preliminary injunctions are granted when they are urgently necessary “to avert severe disadvantage, prevent imminent violence, or for another important reason in the interest of the common good.” (Federal Constitutional Court Act § 32.) The standard of review is different from the one in the main proceedings and requires a balancing of consequences. 

Facts of the Case

On March 17, 2020, the state government of Hesse adopted a regulation to combat the spread of the novel coronavirus. Section 1, paragraph 5 of the Corona Regulation prohibits “gatherings in churches, mosques, and synagogues,” as well as “the gatherings of other religious denominations.” Religious buildings may remain open for individual worship. Furthermore, alternative forms of worship are allowed, such as online services. The Corona Regulation entered into force on March 18, 2020, and will automatically expire on April 19, 2020. (Corona Regulation § 3.)

The applicant is of the Catholic faith and attends mass regularly. The Corona Regulation prevents him from attending the weekly mass in general (Eucharistic celebration) as well as Easter services. He alleged that the complete prohibition on undisturbed communal religious worship in favor of the competing fundamental right to life or physical integrity is disproportionate. (BVerfG para. 3.)

The Supreme Administrative Court of Hesse denied his preliminary injunction to suspend the Corona Regulation on April 7, 2020. (Para. 4.)

Decision

The Federal Constitutional Court reiterated the standard of review for preliminary injunctions. It stated that a preliminary injunction is granted only when the arguments justifying it are so serious that granting it becomes unavoidable. The balancing of consequences requires taking into account the consequences for all people that are potentially affected by the challenged provision, not just for the applicant. (Para. 10.)

The Court first addressed the consequences for the applicant if the preliminary injunction were not granted but a subsequent constitutional complaint in the main proceedings were successful. It stated that in such a case, the prohibition on holding mass would not have been justified, thereby severely and irreversibly infringing the applicant’s freedom of religion. In the opinion of the Court, the applicant demonstrated that the communal Eucharistic celebration forms a central part of the Catholic faith that cannot be replaced by alternative forms of worship, such as online services or individual prayer. The Court concluded that the prohibition on this type of worship therefore constitutes a particularly severe infringement of freedom of religion as codified in article 4 of the German Basic Law. Furthermore, the infringement is aggravated by the fact that the prohibition extends to the Eucharistic celebration during the Easter holidays, which are the high point of religious life for Christians. (Para. 11.)

The Court then addressed the consequences for all other potentially affected people. It stated that if the preliminary injunction were granted but a subsequent constitutional complaint in the main proceedings were unsuccessful, many people would gather in church, especially for the Easter celebrations. According to the relevant risk assessment of the Robert Koch Institute of March 26, 2020, such gatherings would increase the risks of many people getting infected with the virus and becoming sick, straining health care institutions by the necessity of treating serious cases, and, as a worst case scenario, a significant number of people dying—all of which could have been avoided by prohibiting church services. These risks, in the opinion of the Court, would not be limited to people who participate in church services voluntarily but would extend to a much larger circle of people through the possible spread of the virus and the necessarily high occupancy of hospital beds. (Para. 13.)

The Court reiterated that the government has the duty to protect the life and physical integrity of its citizens. (Basic Law art. 2, para. 2.) Under the current circumstances, the Court held that the right to communal worship must give way to the right to life and physical integrity. It stated that the reason for the prohibition is to flatten the curve of the infection rate to avoid a collapse of the health care system and too many deaths. In particular, it pointed out that the Corona Regulation will expire on April 19, 2020, and the infringement of freedom of religion is therefore currently justified. It must be reviewed after that date and a new balancing of interests must be performed by the state government. (BVerfG para. 14.)