The corona virus pandemic has raised wide-ranging questions on the limits of religious freedoms in a global health crisis. While religious gatherings have acted as hot spots for the spread of the virus from South Korea to the United States, efforts to restrict religious congregation have met strong resistance from groups who claim that they threaten constitutionally granted religious freedoms. The debates that this situation has provoked have by and large revolved around the question of how to balance religious communities’ right to free congregation with the need to protect the community at large from the pandemic (see Wilson, Smith, and Bean 2020). However, a closer look at the ways in which exemptions for religious communities from pandemic restrictions are debated in individual legal systems reveals substantive legal and contextual differences. This raises important questions on how the corona virus pandemic will transform the constitution of religious freedoms, state–religion relationships, and notions of legally recognized religion more broadly across the globe. The case of Brazil, I propose, presents a case in point.

To date, Brazil has appeared in the global spotlight on the corona pandemic primarily because of President Jair Bolsonaro’s dismissal of the threat posed by the virus. As early scholarly assessments of Bolsonaro’s stance toward the pandemic have underscored, the political and social fallout can be expected to be significant (Blofield, Hoffmann, and Llanos 2020; Gabaldón and Lezaun 2020). But, alongside these political and social effects, Bolsonaro’s stance will also have significant religious implications.

Bolsonaro’s resistance to other governing officials’ efforts to contain the pandemic has raised the question of the constitutional limits of executive power in Brazil. One key legal debate on this question has unfolded in the past few weeks over a presidential decree (Decreto no. 10.292, proclaimed on March 25, 2020) that established religious activities of all kinds as essential services exempt from social isolation measures. The designation of religious activities as essential services was widely viewed as a political ploy aimed at maintaining the president’s political support among the nation’s politically powerful evangelical Christian leaders. In the courts, the decree has presented a test case on the limits of executive power in a pandemic. The Federal Public Prosecutor’s Office (Ministério Público Federal, MPF), which raised the challenge to the decree, accused it of illegality: The president did not have the authority to modify established legal definitions of essential services or to proclaim decrees that violated such constitutionally guaranteed rights as the right to health. In two jurisdictions, Rio de Janeiro and the Federal District, federal judges sided with this analysis. However, only days later, the 2nd Federal Appellate Court (TRF-2) overturned this ruling arguing that the judiciary did not have the authority to intervene in the President’s executive orders.¹

That the legal challenges to Bolsonaro’s decree on religious activities have focused on the limits of executive power is understandable. In Brazil, the question of religious exemptions to coronavirus restrictions cannot be divorced from the fact that they were proclaimed by a president notorious for his lack of concern for due process. But, what are the effects of the deep entanglement of these legal questions with efforts to control the executive excesses of Bolsonaro?

Here, it is worth attending to the ways in which the MPF and the federal judges that side with it worked to preempt counterarguments that invoked the right to religious freedoms. They claimed that not only was the right to freedom of religion secondary to that of the right to health in a pandemic, but also that the restrictions that had been imposed on face-to-face congregation did not violate religious freedoms. As the global proliferation of television and internet mediated religious services demonstrated, face-to-face congregation could be substituted by such forms of mediatized congregation.

Clearly, the ban on religious gatherings that their arguments sought to forward is important and essential from a public health perspective. But, the legal reasoning they relied on to justify it privileged a very specific model of religion—one that, ironically, was most closely aligned with the highly mediatized forms of religious practice common to the evangelical Christian churches that Bolsonaro’s decree supposedly was designed to please. By contrast, many other religious communities lack access to the means required to produce mediatized religious services. Moreover, this model of religion ignores that a broad range of religious practices are incompatible with such mediatization. One need only think of the myriad of prayer ceremonies (rezas) at Catholic shrines, prayer circles and bible study meetings, and collective offerings to African deities that are central to many Brazilians’ religious practice to see the limits of this definition of religion and religious freedoms.

The legal regulation of religion, as Winnifred Fallers Sullivan (2005) has argued, necessarily has a constitutive effect. Rather than simply reflect established understandings of what religion is, legal determinations on religion contribute to an articulation of the contours and character of religion. Historically, the legal treatment of Afro-Brazilian religions in Brazil provides a particularly clear example of this. The religions were treated not as religions but as criminalized forms of magic and healing until the latter half of the twentieth century (Johnson 2006). Afro-Brazilian religious communities still struggle to access such legally mandated provisions as property tax exemptions to religious communities. The manner in which religion comes to be regulated in the current pandemic will surely also have a lasting effect not only on legal understandings of religion in Brazil, but also how it can be practiced.

Notes

1. The MPF appealed this ruling in quick succession. At the time of writing, the fate of the decree remains open.