The Valais Cantonal Court, in a judgment of February 8 (case A1 20 189), repudiated the Council of State, which had limited attendance at worship services to ten people in a decision of October 21, 2020. Even though this measure had been revoked by the Council of State in a decision of November 19, 2020, authorizing religious services in accordance with the federal gauge of 50 people, the Cantonal Court agreed to analyze the arguments of the appellants, ordering the State of Valais to pay their legal costs.
Mr. Marc-André Mabillard, counsel for the Appellants, commented on this judgment in a press release. It is interesting to follow his consideration of the recitals.
He first noted that “the Cantonal Court agreed to analyze the appellants’ arguments, ordering the State of Valais to pay their legal costs.”
He then paid particular attention to recital 6.4.3 of the Cantonal Court “which explains why they should have quashed the decision limiting attendance to ten people, if it had been an issue.”
The Court notes the curious factors provided to set the unusual limit of ten people: “The cantonal executive explains that outbreaks have been identified in Mulhouse, [France], Seoul, [Korea], or even in Qom, Iran, without however seeking to demonstrate how those gatherings, which took place at the start of the pandemic and in the absence of the protective measures applied in the Valais, could be validly compared with the worship services taking place in the cantonal territory.”
The central element of the argument follows: “In the absence of any proof as to the particular risks of contamination that attendance in itself at places of worship in the Valais, limiting religious gatherings to ten people in the whole of the cantonal territory or refusing a request for an exemption for a particular celebration, without any consideration of the size of the places of worship—which is not far from equivalence, in fact, to a ban—does not stand up to scrutiny in terms of necessity, enforceability or even arbitrariness.”
The Tribunal thus recognizes, on the one hand the absence of proof, and on the other hand the manifest disproportion between the prohibition and the aim sought. He continues:
“The limitation of the movement and mixing of the population does not justify the infringement thus brought on freedom while, at the same time, certain non-essential businesses or markets were not affected respectively authorized and recorded notoriously large crowds.” The argument echoes what has been argued so often by advocates of assistance at Mass: regarding the difference in treatment between bodily and spiritual needs, the latter clearly not being seen as essential.
And the General Court concluded: “It must therefore be admitted that, from this perspective, the appeal would have had a serious chance of success.”
Mr. Mabillard further notes that the Cantonal Court has further raised that “the Council of State’s argument based on the possibility of resorting to ‘information technologies’ is, moreover, not decisive with regard to the right to participate in common at a celebration of rites, which is characteristic of worship and the corresponding freedom guaranteed by Article 15 Cst.” (§6.4.2).
In other words, the fact that the ceremonies can sometimes be followed on the internet, does not justify the prohibition: as if there were an equivalence between virtual and real participation in worship.
Mr. Mabillard concludes: “It was very important that the Cantonal Court note this violation of a fundamental right. We are therefore satisfied that the Valais will no longer be, in the future, an exceptional territory for the application of common law recalled by the French, American, and Geneva judicial authorities at the end of last year: freedom of worship is constitutional right and governments cannot abuse it.”