DiReSom

Diritto e Religione nelle Società Multiculturali/ Law and Religion in Multicultural Societies/ Derecho y Religión en las Sociedades Multiculturales/ Droit et Religion dans les Sociétés Multiculturelles/ Recht und Religion in Multikulturellen Gesellschaften/ 多元化社会中的法与宗教 / القانون والدين في المجتمعات متعددة الثقافات

by Maria Luisa Lo Giacco*


marialuisa.logiacco@uniba.it


On 9 March 2020, the Government Decree, renamed “I stay at home”, has extended to the whole Italian territory the prohibitions that the previous Decree, dated 8 March, established for “Red Areas”, the areas most affected by the coronavirus epidemic. Il provides for the suspension of “all events in a public or private place, including those of a cultural, recreational, sporting, religious nature” (art. 1, g). Furthermore, “the opening of places of worship” is “conditioned on the implementation of organizational rules that allow to avoid gatherings of people, considering the size and characteristics of the places”, and respecting the distance of at least one meter between people. It suspends “civil and religious ceremonies, including funerals” (art. 1, i).

These rules constitute a unicum in relation to the exercise of freedom of worship in Italy. Art. 19 of the Italian Constitution protects the exercise of worship, in public and in private. It derives directly from religious freedom and it has one only limitation: rites should not be contrary to morality. Other constitutional rights and freedoms have also been limited. As Azzariti has pointed out, only the state of emergency may legitimize rules, which affect fundamental rights[1]. Indeed, he cites Arts. 16 and 17 of the Constitution, which state that freedom of movement can be limited for “health or safety reasons” and that freedom of assembly may be limited for “proven reasons of security and public safety”. These limits are not present in Art. 19. The drafters of the Constitution established that public health and safety are valid reasons to limit free movement and assembly, but not religious freedom. Francesco Finocchiaro wrote that freedom of religion is to be considered as “a privileged freedom, in its various manifestations, both as freedom of assembly and association, and as freedom of manifestation of thought” [2]. For this reason, the Constitution has not established limits on the worship activity: “Religious rites are not a show or event that are offered to the public … but they are an expression of the gathering of the faithful in the cult of divinity”[3]. Art. 9 of the European Convention for Human Rights, which was approved only two years after the Italian Constitution, makes a different choice, and it provides for the protection of health as a legitimate limit to religious freedom.

However, scholars and case law have always agreed that health protection needs should also prevail on religious freedom: from this point of view, therefore, there is no doubt about the legitimacy of the decree which, as an urgent matter, has also intervened on such a sensitive matter (the celebration of rites), which belongs to the competence of the Church (and of other religions). Art. 1 of the Villa Madama Agreement (revising the 1929 Concordat), after establishing that the State and the Catholic Church are independent and sovereign, commits them to mutual “collaboration for the promotion of humanity and the well-being of the country”.

Since the outbreak began, the collaboration of the Catholic Church has not been lacking. With a document of 5 March 5, the Italian Bishops’ Conference envisaged particular measures to be adopted in the areas most at risk of infection; among these, “in the light of the dialogue with the Government”, is the suspension of masses for a week. In the rest of the national territory, the Italian Church is committed to respecting all the preventative measures useful to limit the contagion, such as the maintenance of at least one meter of distance between people and the avoidance of gatherings, saving “the possibility to celebrate the Holy Mass, as well as to promote the schedule of prayer times that characterize the time of Lent”. Thus, there has remained a space to exercise freedom of worship, even if it has been necessarily reduced. 

The other religions have shown the same collaborative spirit. On 5 March, the Assembly of the Italian Rabbis released a statement containing some recommendations for the celebrations. The rabbis recalled that, according to Jewish law, it is a “duty for everyone to observe the mitzvot even in difficult situations”. However, it is also a duty to “safeguard one’s life and one’s own health and the life and health of others, and therefore it is a halakhic duty to observe the health recommendations of the competent authorities. These two fundamental duties must be reconciled as far as possible, even if the protection of life and health clearly takes precedence over everything”[4]. The rabbis then gave some practical instructions: making sure that the functions are short during the Shabbat, and making sitting people keep the safety distance between each other, possibly fixing a maximum number of participants. The document also contains some recommendations for the Purim festival, scheduled on 9-10 March, during which a greater number of celebrations is planned, like the reduction of the number of participants in each of them. It is recommended to celebrate with family or friends, avoiding public events. On 8 March, the Jewish authorities intervened again. Even in the red areas worship activities are guaranteed: in Milan, in places that allow their carrying out “subject to the government’s indications”; in Venice, “also on Shabbat day, with a limited entrance. Therefore, only the members of the Community shall enter, respecting the conditions envisaged by the government about the distance that must be kept”[5]. On 9 March, Rav Alfonso Arbib published some instructions for the celebration of Purim in the synagogue: when reading the Meghillà “it is absolutely necessary that people sit at a safe distance, therefore it is necessary to organize a reading with a limited number of people who must sit at a distance from each other. If this is not possible, several readings must be scheduled at different times”. The ritual then envisaged that two portions of ready food (manòt) must be sent to a person: “We remember that the manòtcan be sent without delivering them directly”. It is recommended to have the festive lunch at family, without organizing public lunches, while gifts to the poor must be distributed “keeping due distance or sending them through other people”. The document ends asking to observe the feast precisely because we are in a difficult period, citing a poetic passage read during Kippur: “Repentance, prayer and tzedaka take away the bad decree”[6].The divine intervention saves from danger.

Also UCOII (Unione delle Comunità Islamiche in Italia – Union of Islamic Communities in Italy) published the “Coronavirus emergency provisions for Islamic communities” on 5 March 2020. It is the community circular no. 01/2020, which affirms the general principle of the prevalence of the health protection over the obligation of daily community prayer (Art. 1). Art. 2 is very interesting: it reinforces the quarantine obligation for the infected by reporting a hadith of the Prophet Muhammad who, in the event of epidemics, invited believers to self-quarantine with these words: “If an epidemic appears on one land, don’t go there; and if you find yourself in it, you won’t leave that land by running away”. UCOII has decided to close temporarily all Islamic centres in Italy, and to suspend the five daily prayers and any other cultural and worship activities. However, it regards as “binding” the “funeral and the prayer of the gha’ib which can be performed in small groups by closing the doors, respecting the one-meter distance, while equipped with masks to avoid direct contact as much as possible” (Art. 5)[7]. Therefore, even for the most representative of Italian Islamic organizations, there remains a small chance to perform worship activities, with the limits necessary for the protection of the health of the participants.

Among the Christian churches, we emphasize the position of the Waldensians and Lutherans. On 5 March, the moderator of the Waldensian table wrote to the churches stating that restrictions on demonstrations and events should not be considered as an impediment to worship [8]. On 10 March, however, with a new letter, in the light of the new governmental provisions legally binding across the country, and following a consultation within the Church, the moderator ordered the suspension of all community worship activities, including public weddings and funerals and recommended that the relatives  of the deceased should accompany them only spiritually[9]. Obviously, the worsening of the health situation persuaded the governing bodies of the Church that it was appropriate to completely suspend worship activities. The consistory of the Lutheran Evangelical Church left the decision of “whether or not to cancel the cults and spiritual encounters” to each community, inviting to consider the need “not to respond with isolated measures to the difficult situation regarding the physical and soul state of people”. We can read the invitation to continue public worship, scrupulously observing the hygiene measures provided for by the government decree[10].

In this scenario, the decision of the Italian Bishops’ Conference (IBC) to suspend all liturgical celebrations, even those on Sunday, stands out. Actually, examining the document from the literal point of view, the Catholic Church seems to have had to adapt to a decision taken by the Italian government, without margins of negotiation. In fact, as we can read in the press release issued in the late afternoon of Sunday 8 March by the National Office for Social Communications: “The government’s interpretation strictly includes funeral masses and rites amongst religious ceremonies. It is a highly restrictive provision, the reception of which is met with suffering and difficulty by Pastors, priests and faithful. The decree is accepted only for the desire to do one’s part, also in this situation, in order to contribute to the protection of public health”[11]. Also the subsequent press release of 10 March, signed by IBC’s  General Secretariat, reveals the “regret and disorientation” that the government’s decision created “in the Pastors, in the priests, in the religious communities and in the people of God”; it was “accepted – therefore not agreed – by virtue of the protection of public health”[12].

The disconcert of the Italian Catholic Church is understandable. As Antonio Staglianò wrote on 27 February 2020 on Avvenire[13], in difficult times believers should pray more and celebrate more masses. Throughout history the Church has built a tradition of prayers against the plague, infectious diseases, other diseases and, in the past, when the plague raged, the faithful asked for help from their patron saints. In an article published in La Stampa, Franco Cardini also recalled that: “Once during the epidemics novenas and processions were organized to invoke divine protection, today the churches are closed”[14]. According to Andrea Riccardi, the government’s decision has not taken into account the reality of the Italian Catholic Church, which – in times of crisis – has always been a support for the country and whose contribution is extremely important even in this difficult moment[15]. Perhaps government authorities could have left the possibility to celebrate at least Sunday mass, with all the necessary preventative measures, such as the minimum distance between the faithful, or the adjustment of the maximum number of people allowed in according to the size of the place of worship. In this case, the IBC itself might have decided autonomously to suspend the celebration of the masses, in order to protect the health of the faithful and for the good of the country.


* Associate Professor of Law and Religion at the University of Bari (Italy). 

[1] See the interview with Liana Milella, Coronavirus, Azzariti: “Le misure sono costituzionali a patto che siano a tempo determinato”, in La Repubblica, 8 March 2020.

[2] Francesco Finocchiaro, Diritto ecclesiastico, 10th ed., Bologna, 2009, p. 163.

[3] Ibidem.

[4] See Il messaggio dei rabbini italiani “Salvaguardia vita e salute ha precedenza su tutto, in moked. Il portale dell’ebraismo italiano, 5 March 2020 (moked.it/blog/2020/03/05/emergenza-coronavirus-rabbini-italiani-salvaguardia-vita-precedenza/).

[5] Cfr. L’appello dei leader ebraici “Calma e collaborazione, così ne usciremo”, in moked. Il portale dell’ebraismo italiano, 10 March 2020 (moked.it/blog/2020/03/08/lappello-dei-leader-ebraici-calma-collaborazione-cosi-ne-usciremo/).

[6] See Rav A. Arbib, Le mitzvòt di Purim (ai tempi del coronavirus), in Mosaico, 9 March 2020 (https://www.mosaico-cem.it/vita-ebraica/festeeventi/le-mitzvot-di-purim-ai-tempi-del-coronavirus).

[7] See the document on the website: https://www.ucoii.org/2020/03/05/01-2020-disposizioni-emergenza-coronavirus-per-le-comunita-islamiche/.

[8] In https://www.chiesavaldese.org/aria_articles.php?ref=766.

[9] In https://www.chiesavaldese.org/aria_articles.php?ref=767.

[10] https://www.chiesaluterana.it/2020/03/06/decreto-ministeriale-su-covid19/

[11] In https://www.chiesacattolica.it/decreto-coronavirus-la-posizione-della-cei/

[12] In https://www.chiesacattolica.it/un-tempo-di-enorme-responsabilita/

[13] In https://diresomnet.files.wordpress.com/2020/03/la-forza-delle-nostre-preghiere-per-c2abcontrastarec2bb-lepidemia.pdf

[14] In https://www.lastampa.it/vatican-insider/it/2020/03/05/news/lo-storico-franco-cardini-un-tempo-contro-le-epidemie-si-pregava-oggi-si-chiudono-le-chiese-1.38553779.

[15] See Andrea Riccardi, Il coronavirus e la sospensione delle messe: così c’è il rischio di sottovalutare la solitudine, in Il Corriere della Sera, 8 March 2020, https://www.corriere.it/cronache/20_marzo_08/coronavirus-sospensione-messe-cosi-c-rischio-sottovalutare-solitudine-aaa5aaa2-618d-11ea-8f33-90c941af0f23_preview.shtml?reason=unauthenticated&cat=1&cid=gWGAPAId&pids=FR&credits=1&origin=http

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