Analysis: Why has Brazil’s new STF Justice forbidden the prohibition of religious services during pandemic?

RIO DE JANEIRO, BRAZIL – On Saturday, April 3, just before Easter Sunday, Justice Kassio Nunes Marques, President Bolsonaro’s most recent appointee to Brazil’s Supreme Court (STF), issued a temporary restraining order forbidding states and municipalities in Brazil from completely prohibiting in-person attendance at religious services.

The lawsuit, filed by a group called the National Association of Evangelical Jurists (Anajure), challenged several state and municipal decrees that suspended all in-person services during the pandemic. According to Anajure, the blanket prohibition violates the freedom of religion and the laicity of the state.

Nunes Marques’s order, which must be confirmed by the full 11-Justice STF, acknowledged the existence of a pandemic, but stated it was “necessary to recognize the essential nature of religious activity, responsible, among other functions, for granting spiritual welcome and comfort.”

The Justice affirmed that religious events must be allowed if they follow customary sanitary guidelines, specifically noting the following: limiting occupancy to 25% of capacity; maintaining space between rows and seats; keeping windows and doors open; requiring the use of masks; placing alcohol gel at building entrances; and taking the temperature of all who enter.

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The order is not only prospective – it specifically forbids governors and mayors from enforcing decrees issued before the decision was rendered.

Mayor Alexandre Kalil (PSD) Belo Horizonte, capital of Minas Gerais, generated controversy on his twitter feed, by declaring he did not intend to rescind his prior decree, but rather would await a decision by the full STF.

The Federal Solicitor General (AGU) André Mendonça, widely thought to be the leading candidate for the next STF position when Justice Collor de Mello retires in July, ordered Mayor Kalil be served with notice to justify his stated intention to disregard the order. Justice Nunes Marques also ordered the Federal Police and the Federal Prosecutor General’s office to question Mayor Kalil within 24 hours.

On March 30, the Solicitor General’s office had opined that Anajure did not have standing to file a lawsuit at the STF, as it did not have sufficient national presence in Brazil. Several commentators expect the ruling to be overturned by the full STF, as it seems to conflict directly with prior STF decisions granting governors and mayors broad leeway in restricting crowd-generating gatherings.

In general, the decision pleased President Bolsonaro and his evangelical followers, who have long argued against any measures restricting crowds. The National Council of Brazilian Bishops, on the other hand, has for over a year ordered all masses and other Catholic services to be virtual, not in-person.

After the decision, the Basilica at Aparecida, in São Paulo, decided to hold three masses on Easter, with no more than 1,000 faithful present – capacity is 35,000 – while following São Paulo state Red phase pandemic guidelines.

Sources: G1, UOL