OP-ED: When Laws Do Not Name Religion — but Still Impact It

When Laws Do Not Name Religion — but Still Impact It

Imagine a retired pastor convicted for preaching John 3:16 near a hospital. Not because any statute named preaching as its target, but because a public-order law written for another purpose was read that broadly. Imagine a seventy-five-year-old grandmother arrested twice for standing silently outside a hospital with a sign offering conversation. The law was said to target harassment, not silent presence.

These were not laws framed as restrictions on religion. They arose from ordinary legal instruments (hate speech provisions, public order powers, child welfare law, anti-discrimination law, and new conversion practice bans) tested at their outer limits by prosecutors, regulators, and courts.

This pattern is documented in the Pew Research Centre's sixteenth annual Global Restrictions on Religion report, published in June, which found government interference with religious practice at a new high across 175 of 198 countries, and in the United States Commission on International Religious Freedom's 2026 Annual Report (USCIRF report), which similarly flags EU member states for retaining blasphemy and hate speech laws that fall on religious minorities and dissenting believers. Neither claims that legislatures set out to restrict belief; both point to something more pertinent: laws drafted for one purpose extended, case by case, to conduct nobody in Parliament identified as the target.

South Africans have reason to pay attention, not because these incidents have occurred here, but because the pattern reflects a legislative design challenge that every constitutional democracy must get right for itself. A hate speech clause, a buffer zone power, a child protection standard or an anti-discrimination provision can each serve a legitimate purpose. Yet, its real boundary may be discovered later, by a prosecutor's charging decision or a court's interpretation, rather than by Parliament when the law was passed.

Finland provides a clear illustration. Päivi Räsänen, a sitting MP and former interior minister, was prosecuted for seven years over a 2004 pamphlet restating conventional Christian teaching on marriage. Two lower courts acquitted her unanimously, finding no incitement to violence. However, in March, Finland's Supreme Court convicted and fined her, while acknowledging that the pamphlet contained no incitement to harm. Nothing suggests that the law she was charged under was enacted to punish the restatement of church doctrine. Yet that is where its enforcement reached. She is now appealing to the European Court of Human Rights in what will be a landmark case for freedom of expression and religious freedom in all member EU states

The United Kingdom shows the same dynamic differently. Isabel Vaughan-Spruce, a charity volunteer, was arrested in 2022 for silently praying, not speaking or displaying a sign, in a protest exclusion zone near a Birmingham abortion clinic. She was acquitted when prosecutors offered no evidence, was arrested again weeks later, and eventually was paid compensation for wrongful arrest. She now faces a fresh charge, reportedly the first under a new buffer zone provision. The same conduct has now been pursued through three distinct legal routes. That is the concern: the boundary of lawful conduct is being discovered through enforcement, rather than fixed by statute. The punishment is also in the process, with years of significant legal costs, multiple court appearances and the emotional stress this clearly entails.

None of this means the underlying laws are illegitimate. Public order powers exist to prevent harassment of vulnerable people, hate speech laws to prevent genuine incitement, and child welfare laws to protect children from real harm. These are proper objectives. The concern is narrower: whether legislation is tailored closely enough that ordinary religious conduct (a decades-old pamphlet, a silent prayer or a voluntary pastoral conversation) does not fall within reach of the law by accident of enforcement.

Parental authority raises the same issue from another direction. In Sweden, two daughters aged ten and eleven were removed after one made an abuse allegation that she later recanted. Prosecutors found no evidence, yet authorities kept the children in state care, citing thrice-weekly church attendance as “religious extremism”. The case is now before the European Court of Human Rights. A different judgment from the same court, Wunderlich v Germany, cuts the other way: it upheld Germany's power to ban homeschooling and remove children to enforce that ban, even though the children were found well-adjusted and adequately taught. The question is not whether the State may protect children. It plainly may. The question is whether the law draws a principled and foreseeable line between genuine harm and parental choices shaped by religious conviction.

The line is most contested in conversion-practice legislation. Protecting people from coercive practices and protecting voluntary religious counsel are both legitimate aims. They become opposing goals only when enforcement, rather than the statute itself, decides where one ends and the other begins. This year, in Chiles v Salazar, the United States Supreme Court held that laws restricting what a licensed counsellor may say to a willing client must survive strict scrutiny, shielding faith-consistent counselling from being redefined as a banned practice. According to its Justice Department, Canadian law does not criminalise private conversation or pastoral support, though that remains untested. An independent fact check confirms that Victoria’s law in Australia does not ban prayer outright, even though it identifies prayer-based practice as a category it can reach.

That leaves a serious question: how will regulators treat prayer offered at a person’s own request? Most such statutes say they do not target voluntary prayer. Critics respond that their real boundaries will be set later — by prosecutors and courts, after the fact — rather than in advance by the letter of the law. What connects these examples is not a claim that governments set out to restrict belief. It is a narrower and more practical warning: a statute’s words can remain the same while its enforcement quietly expands.

The safeguard against that drift is not sentiment or slogan. It is drafting discipline; proportionality between the harm targeted and the conduct caught; the constitutional requirement that citizens know in advance what the law requires; and a steadfast commitment to uphold and maximise human rights.

That is the standard against which South Africa’s laws touching expression, family life, education, and pastoral care should be measured. Not because what has happened elsewhere has already happened here, but because the discipline required to prevent it is the same wherever a constitutional democracy takes the rule of law seriously. A law that says nothing about religion can still, in the wrong hands, come to rest on conscience, belief and faith. Recognising how that has happened elsewhere is a cheaper lesson than learning it the hard way here in South Africa.