Transnational Nonestablishment

Abstract

Over the past decade, significant changes have occurred in the religious freedom jurisprudence of the European Court of Human Rights. The most recent indicators of change are the conflicting opinions displayed in the 2009 Chamber decision finding the mandatory posting of crucifixes in public school classrooms in Italy impermissible, and its subsequent reversal by the Grand Chamber in 2011. Taking a broader perspective, this Article argues that an emerging trend toward a transnational nonestablishment principle seems to be developing in contemporary Europe. This Article first places the emerging principle into a larger multi-level religious policy framework, one of several such frameworks that also include the Post-Reformation model as well as the U.S. Establishment Clause model. After surveying the development of nonestablishment principles in the United States, under the European Convention, in the law of the European Union and in individual countries, this Article then traces the contours of nonestablishment. In doing so, this Article illustrates that several useful comparisons can be made between the evolving understanding of nonestablishment in the United States and current developments in Europe. Some of these comparative insights – particularly in the public school context – may prove helpful in anticipating the likely future effects of an emerging transnational nonestablishment principle. This Article then assesses possible implications of the emerging nonestablishment principle in Europe, both short-term and long-term, arguing that theories of convergence and subconstitutionalism best describe likely long-term effects. The discussion over disincorporation of the Establishment Clause and recent developments in recalibrating the scope of the Establishment Clause with respect to indirect funding of sectarian schools in the United States provide an opportunity to assess the reciprocal effects of multi-level nonestablishment. Finally, this Article turns to the question whether a shared transnational nonestablishment baseline is emerging, arguing that a nonestablishment baseline as a normative matter is necessary in western-style democratic systems.

Keywords: European Court of Human Rights, First Amendment, Establishment Clause, constitutional law, comparative constitutional law, religious freedom, law and religion

JEL Classification: K1, K19, K33, K39