Protests vs. prayers vs. weddings

“If people are permitted to gather in order to demonstrate, there would seem to be no justification for restricting gatherings for prayer; and if people are permitted to gather for prayers, there would seem to be no justification for restricting gatherings at weddings”; ad infinitum. At the heart of the seething public debate over restrictions on public gatherings, are claims of discrimination against specific population groups in the application of COVID-19 restrictions. The current lockdown, which imposes stringent restrictions on all types of gatherings, including political demonstrations, once again surfaces a difficult question: Is the government allowed to apply sweeping regulations across the board with a view to ensuring that all activities and all individuals are treated in the same way, or must it differentiate among various types of activity based on the unique characteristics of each?

 The media discourse focuses on the specific characteristics of each restricted activity and the empirical findings on infection rates that justify these restrictions. Yet, there is another important consideration that should be taken into account when evaluating the approach taken in imposing restrictions: that is, the tendency of governments to impose restrictions on specific rights.

The three activities referred to above are linked up with the exercise of fundamental rights — freedom of assembly and freedom of speech, freedom of religion, and the right to enter into marriage; and there is no clear basis for claiming that one is more central to an individual’s life than the others. Presumably, for a religious person, being able to pray together with his or her religious community, especially during the High Holidays, is no less important than being able to protest against the government by taking part in a mass demonstration Likewise, for members of many groups, attendance at wedding celebrations plays an important role in maintaining social cohesion. However, the interface with the government differs in each case, and this justifies the adoption of different approaches to attempts to restrict these underlying rights.

Freedom of assembly and freedom of speech are regarded as fundamental political rights in democratic countries, given that they enable the public to protest against the government and its policies, and thus play a meaningful role in shaping the country’s political discourse and public life. Like other political rights, they have been granted legal protection in the wake of a long history of attempts by governments — both democratic and not — to silence their critics. The inherent tension between the government’s illegitimate interest in suppressing criticism, and the legitimate aspirations of those seeking to demonstrate in order to voice their criticisms, generates suspicions of any government attempt to restrict freedom of assembly and speech.

Suspicions against attempts to limit protests are especially relevant in the current Israeli context in which, on the one hand, there are demonstrations that are harshly critical of the prime minister and of the government’s policies; while on the other, there are no solid data indicating that open air demonstrations pose a direct and significant danger to public health. In such circumstances, while it is permissible- and even necessary- to impose reasonable restrictions on these demonstrations for public health reasons (such as enforcing the wearing of masks and taking steps to prevent over-crowding), there is no justification for a complete ban on them (or for subjecting them to extreme restrictions with regard to where and how they are held).

By contrast, there is no intrinsic or inevitable conflict between freedom of religion and the right to marry, and government interests — especially in Israel, where religious parties are well represented in the government. Given this situation, there is no reason to fear that the government seeks to limit activities in synagogues or in wedding halls for political reasons. The combination of different points of departure on the possible motivation to limit the Right and the empirical data indicating high infection rates in large prayer gatherings and weddings (which often take place in closed spaces), justifies adopting a differential approach to these activities, and legitimizes the imposition of severe restrictions on prayer gatherings and weddings, that are not applied to demonstrations.

In this context, an important question of principle arises: Is it justified to impose restrictions on demonstrations due to their indirect influence on compliance with restrictions on other activities? There are valid concerns that exempting demonstrations from the lockdown restrictions on movement and on public gatherings will make it more difficult to enforce similar restrictions in other cases, and that doing so is liable to erode trust in government leadership among those population groups on which restrictions are imposed, and fuel a strong sense that they are being discriminated against.

However, the response to this question of principle is clear. There is no room for imposing unjustified restrictions on the basic rights of one group of citizens, simply because this will make it easier to impose justified restrictions on the basic rights of another. Issues of trust should be addressed with trust-building tools :that is,, collecting and publicizing data on infection rates and paths, as the basis for imposing reasonable restrictions on all activities identified by these data as high-risk for spreading infection, even if these activities come under the heading of basic rights.

In fact, bundling different rights together into one package raises a serious and opposite concern: That the government may act too aggressively to limit the non-political rights to worship and to marry, in order to gain legitimacy for limiting political rights such as freedom of assembly and freedom of speech. If government policy is perceived as motivated by such considerations, the crisis of trust between the public and the State will only be further exacerbated.

About the Author
Professor Yuval Shany is a vice-president of Research at the Israel Democracy Institute, and a member of the Faculty of Law of the Hebrew University of Jerusalem.
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