Necessary Questions in Free Religion Cases: Application of 'General Applicability' to the French Veil Case
17 Pages Posted: 7 Jan 2016 Last revised: 29 Feb 2016
Date Written: January 5, 2016
The First Amendment (“FA”) of the U.S. Constitution is understood to protect the freedom of religion (“FR”). Under FA, FR includes the principle of separation of church and state (through its establishment clause provision), and to protect the rights of individuals to freely exercise religion (through its free exercise clause provision). In this article, I will first briefly introduce the “test” of the U.S. Supreme Court (“SC”) in FR cases, summarise how the test was applied in a leading case (Church of the Lukumi Babalu Aye v. City of Hialeah), provide a recommended interpretation or elaboration of such test, and then apply relevant aspects of the elaborated test to the case of S.A.S. v. France concerning France’s prohibition of the veil, a case decided by ECt in 2014. The purpose of applying the elaborated test to S.A.S. v. France is to further elucidate the issue of FR and demonstrate what questions European and American courts should consider in determining cases concerning FR. The issues and evaluation I consider in regards to S.A.S. v. France are based on interpretation of a specific prong of SC’s test in FR cases, called the “general applicability” prong, which may be very useful in evaluating such cases. In this article, I aim to provide analysis of a specific aspect of SC’s doctrine in order to propose a consistent and effective approach for evaluating FR cases in both Europe and U.S. I do not aim to definitively state that ECt decided S.A.S. v. France wrongly – that is beyond the scope of this article.
Keywords: freedom of religion, First Amendment, general applicability, French veil case, living together
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