Weddings and Kirpans- indirect religious discrimination in NSW

While Sikh weddings will often feature the symbolic dagger known as the “kirpan”, that is not the connection I am writing about. In NSW at the moment both weddings in general, and kirpans worn by school students, have featured in debates about religious freedom. For weddings, those committed to religious beliefs are deeply concerned that all weddings are banned under COVID-19 provisions. In relation to the kirpan, I have written previously about a ban on these items applied to school students and the problems that raised for observant Sikh students. Both of these issues provide an example of what is called “indirect discrimination” on the basis of religion. The kirpan ban seems to have recently been sensibly modified to take into account concerns of the Sikh community. I argue here that the wedding ban should be approached in a similar way, and the deep-seated concerns of believers in NSW met by adjusting the current rules to allow the small number of people most directly involved to gather for weddings.

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COVID rules for NSW churches- exemption issued, though not necessary

Following on from my recent post outlining COVID-19 restrictions that will impact NSW churches, the NSW Health Minister has now issued an exemption under the Public Health (COVID-19 Temporary Movement and Gathering Restrictions) Order 2021 (the “TMGR Order”), cl 25, dealing with singing in live-streamed services and in places of public worship outside Greater Sydney (where gathering for church in limited numbers and with face masks is still permitted). The Minister is to be commended for responding to concerns that have been raised by advice given by officials of his Department to some churches (for the content of the advice and some comment, see this article from 2 July from Eternity.) In my view, however, the advice given was wrong, and the exemption that has been issued today was unnecessary- the official TMGR Order already allowed the activities that were wrongly said to be prohibited by Health Department advice. I will try to unpack these things here.

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COVID restrictions on NSW churches

There are a number of restrictions on church activities in NSW at the moment under rules introduced to manage the current outbreak of cases in Sydney. In this post I will try to briefly summarise what I think is the best interpretation of the rules. These rules are generally in place until midnight Friday 9 July. Keeping up with the various version of the Public Health Orders is not easy. The two main ones at the moment are the Public Health (COVID-19 Temporary Movement and Gathering Restrictions) Order 2021 (No 282 of 2021) (“the TMGR Order”) and the Public Health (COVID-19 Mandatory Face Coverings) Order (No 3) 2021 (No 279 of 2021) (“the Face Coverings Order”).

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Updated NSW rules for churches

A new Public Health Order will apply from the beginning of Monday 29 March 2021 to churches in NSW: the Public Health (COVID-19 Gathering Restrictions) Order 2021. One of the biggest changes is that there will no longer be restrictions on singing in services (hooray!) There was actually a temporary exemption in place over the weekend of 27-28 March to allow this to happen a bit early. But this new CGR Order will now operate on a long-term basis. In this post I will just summarise the provisions affecting churches, and where they can be found in the new Order.

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Sydney Northern Beaches- churches closed Sunday 20 Dec

Residents of Sydney’s Northern Beaches local government area should be aware that a special Public Health (COVID-19 Northern Beaches) Order 2020 was published late today, commencing at 5:02 pm on Saturday 19 December. The effect of the order (made due to increased cases of COVID-19 in that area of Sydney) is that there is a “lockdown” in force for all residents, and except for a limited number of specific purposes no-one is to leave their homes. Nor is anyone from outside the area to travel into it. Most will be aware of this already, but this will means that no-one can leave home to attend their usual church service on Sunday Dec 20 if they live in the area, or their church is located in the area.

Schedule 1 cl 2 allows leaving home for “work”, which as previously discussed on this blog would seem to allow even a volunteer who was serving as an essential part of a church team to visit the church premises for the purposes of “live streaming”. Schedule 1 cl 14 allows for “a person who is a priest, minister of religion or member of a religious order—[to go] to the person’s place of worship or providing pastoral care to another person”. But other than these limited exemptions, and some specific provisions relating to weddings and funerals, church services cannot be held in person.

This Order expires at midnight on Dec 23. Hopefully it may not be required after that point if the current spread is contained.

NSW Covid-19 rules for churches from 7 Dec 2020

The NSW Government has now released the text of the new more generous gathering rules which will apply from Monday 7 December, in the Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No 7) 2020 (“PHO7”). The new rules are much more generous in allowing churches to gather- in short, most indoor church meetings will only be subject to a new “one person per 2 square metres” rule, rather than a hard numerical cap. Restrictions as to outdoor gatherings have also been eased.

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Latest NSW amendments to gathering rules for churches, weddings and funerals

Following a good run of low COVID-19 numbers in NSW, limits on rules around numbers for church services, weddings and funerals have been eased again. The latest amending Public Health Order, the Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No 5) Amendment Order (No 3) 2020 has been made available on the NSW Legislation website. (A bit early this time! Most of it comes into effect at 12:01 am on Monday 23 November; some provisions noted below relating to weddings and funerals commence on 1 December.) I will aim to briefly outline the main changes relating to churches.

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Capitol Hill Baptist case- COVID restrictions on gatherings unlawful

Most of us are chafing under restrictions on gatherings imposed by COVID-19 laws. Getting the balance right here is hard, and we want to give the government as much leeway as possible; but the restrictions have been very difficult for churches, and the rules adopted in some jurisdictions seem to discriminate against church meetings in comparison to other activities which are now allowed. These were the issues at stake in the recent decision of the United States District Court for the District of Columbia in Capitol Hill Baptist Church v Bowser (Case No. 20-cv-02710 (TNM), McFadden USDJ, Oct 9, 2020).

Capitol Hill Baptist Church has been meeting in Washington DC for 142 years. In recent days it has been prevented from gathering all at one time by local rules restricting all church gatherings, wherever held, to the fewer of 50 percent capacity or 100 persons. The Church is theologically committed to the view that all members of the church should gather together physically on a Sunday in one meeting. As they usually have about 1000 people attending the meeting on Sundays, they have had to move their meetings across the State border to Virginia, where they have been meeting outdoors with social distancing precautions and facemasks. They would like to meet in this way in Washington DC. Their action against the Mayor of the District claimed that the rules in place breached the provisions of the Religious Freedom Restoration Act (RFRA). They have now been successful in obtaining an expedited preliminary injunction enjoining the District from enforcing their restrictions “insofar as they prevent the Church from holding socially-distanced outdoor worship services in which congregants wear masks”- see pp 1-2 of the ruling.

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Clarification of NSW COVID rules for churches- separate buildings

A brief update on my previous post on the COVID-19 rules applying to churches in NSW, where I referred to an “exemption” issued by the Minister for Health relating to weddings and “places of public worship” where there is more than one building on the premises.

The current Public Health Order governing “gatherings” has been formally amended with operation from Monday 14 September 2020 to implement this “exemption”. (For the amended text of the Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No 4) 2020 see here.)

There is now a definition in cl 3(1) of the term “separate area” for “places of public worship”:

separate area, for a place of public worship, means a building— (a) that is separate from other buildings within the premises, and (b) has been designated as a separate building by the occupier of the premises, and (c) that is staffed by persons officiating or volunteers or other staff who provide services in that building only, and (d) that does not allow persons gathering in different buildings to mingle.

New cl 9 then sets out the rules concerning gatherings in places of public worship:

9 Directions of Minister about places of public worship
(1) The Minister directs that the occupier of a place of public worship must ensure—
(a) for a place of public worship with more than one separate area, the maximum number of persons in each of the areas is the lesser of—
(i) the number of persons that is equivalent to one person per 4 square
metres of space in the area, or
(ii) 100 persons, and
(b) for any other place of public worship, the maximum number of persons on the premises is the lesser of—
(i) the number of persons that is equivalent to one person per 4 square
metres of space on the premises, or
(ii) 100 persons.
(2) The Minister directs that the occupier of a place of public worship comprised of more than one separate area must ensure that a religious service, activity or event conducted in one separate area does not commence or end at the same time as another religious service, activity or event in another separate area in the place.
(3) Subclause (1) does not apply in relation to a wedding service or a gathering following a wedding service.
Note. Clause 14A(5) provides for the maximum number of persons for wedding services and gatherings following wedding services.

This rule allows a “place of public worship” (a formal “church building”) to allow different groups of up to 100 or the “4m2” number (whichever is the smaller) in separate buildings, so long as the events start and finish at different times. (Weddings are subject to a higher limit of 150, set out in cl 14A).

The only other change that may impact churches is that the residential gathering limit of 20 persons may now be enforced, not only against the occupier of the residence, but also against any visitors who join a meeting larger than 20- see new cl 11(1A). This reinforces the rule but will probably not have a major impact, given that most church home bible study groups would already be observing the 20 person limit anyway. Presumably it will make life easier for police in prosecuting persons who attend large parties at private houses.