Illicit Legislative Intentions in the Separation of State and Religion: Comparative Constitutional Insights

Abstract

Commencing with the American debate about the role of illicit motivations as putative criteria in the invalidation of laws, I show that in one field (that of separation of state and religion) a general proscription against such criteria of unconstitutionality is not respected. I provide examples from the highest courts in countries as different as in Australia, Canada, South Africa, Germany and Israel and consider the use of legislative motives as a crucial factor in judicial decision making: either for upholding when wrongful motives are absent or for invalidating when prohibited purposes are detected.

Keywords: judicial review, legislative intentions, freedom of religion, separation of state and religion, Australia, Canada, Israel, South Africa, Germany, Richard Fallon

JEL Classification: K10, K30