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

26 Pages Posted: 15 May 2017  

Wojciech Sadurski

The University of Sydney Law School

Date Written: May 14, 2017

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

Suggested Citation

Sadurski, Wojciech, Illicit Legislative Intentions in the Separation of State and Religion: Comparative Constitutional Insights (May 14, 2017). Sydney Law School Research Paper No. 17/39. Available at SSRN: https://ssrn.com/abstract=2968220

Wojciech Sadurski (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

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