Law Professor: Italy’s Ban on Public Worship ‘Unacceptable, Illegitimate, Unconstitutional’

Don Giuseppe Corbari, parson of the Church of Robbiano, celebrates mass in front of empty church pews adorned with selfies sent by his congregation, in Giussano on March 22, 2020. - Italian Prime Minister Giuseppe Conte on March 21 ordered all non-essential companies and factories to close nationwide to stem …
PIERO CRUCIATTI/AFP via Getty Images

ROME — Law professor Maria Lucia Di Bitonto has written a scathing legal analysis of the Italian government’s ban on public worship, saying the state’s actions have been “unacceptable, illegitimate, and unconstitutional” and more closely resemble the measures adopted by Chinese communists than a democratic regime.

On Sunday evening, Italian Prime Minister Giuseppe Conte declared that according to his new lockdown regulations, which will go into effect on May 4, no public Masses or other liturgical services except small-scale funerals can be celebrated.

In a strange addendum, Mr. Conte said that he had made the decision following the opinions of “scientists,” without explaining how science distinguishes between “essential” services such as cigarettes and newspapers and “non-essential” services such as Catholic Masses, soccer games, and theater performances.

In her article Tuesday, Prof. Di Bitonto, who teaches law at Rome’s LUISS university, said the state’s actions have been “unacceptable” because the liturgical celebration is an activity that can be carried out while respecting norms of social distancing as well as or better than many permitted activities.

The faithful could be spread out during the service and access to the church could be limited to a maximum number based on the size of the structure, she notes. Moreover, when churches are too small, “celebrations could take place outdoors, in parks or other large places.”

The ban is “illegitimate,” she said, “because no state law allows government measures to prohibit the performance of religious rites tout-court.”

Finally, the measure is “unconstitutional,” she contends, “because the only limit identified by the Constitution to the right to freely profess one’s faith is that the rite is contrary to morality.”

Furthermore, the European Convention on Human Rights and Fundamental Freedoms “prohibits any restriction of religious freedom that is not imposed by law,” she adds, which Mr. Conte’s decrees are not.

Prof. Di Bitonto observes that in democratic regimes, restrictions on fundamental rights must conform to the principle of proportionality, which “prevents the limitations of individual rights provided by any authority from exceeding the extent of what is strictly necessary to achieve the political objective being pursued.”

There are many possible solutions to the problem, she states, but “an indiscriminate ban on celebrating mass cannot be continued.”

“The preference for bans is a Pavlovian reaction of all governments, because banning everything from everyone is always easier,” Di Bitonto observes. “Choosing what to ban and what not, however, is more tiring and, above all, it exposes decision-makers to mistakes.”

Proportionality was in fact conceived and developed by legal systems precisely to counter this propensity of the authorities, she adds, to “make it clear that prohibiting everything is always the worst possible course.”

Italian Catholics have accepted the restrictions out of a sense of responsibility, she notes, which coincided with a particularly season of the liturgical year, that of Lent and Easter.

“After almost two months, however, the extension of the restrictions beyond appropriate legal limits could legitimize any acts of ‘resistance’ by ecclesiastical authorities and the individual faithful,” she warns.

Italian pastors and laypeople care deeply about the health of the population but “indiscriminately extending the ban on celebrating masses with the faithful is not a proportionate measure and aligns our country with China,” she observes, “which banned the celebration of Christmas well before the epidemic emergency and for reasons that have nothing to do with need.”

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