Putting Faith in Europe: Should the U.S. Supreme Court Learn from the European Court of Human Rights?

25 Pages Posted: 8 Nov 2017 Last revised: 22 Feb 2018

See all articles by Antony Kolenc

Antony Kolenc

University of North Texas Dallas College of Law

Date Written: December 1, 2016

Abstract

Does the United States of America and its Supreme Court have anything to learn from modern Europe regarding the freedom of religion? The European Court of Human Rights has been making controversial headlines in its religion jurisprudence, most recently in its approval of Italy’s practice of hanging crucifixes in public schools. Constitutional scholars have drawn comparisons between these cases and those of the U.S. Supreme Court; however, no one has yet addressed in detail why those comparisons are legitimate, especially with regard to the freedom of religion. This Article breaks down the problem into three parts, looking first at policy-based objections to the practice. It then explores whether differences between the U.S. and European systems invalidate these comparisons. Finally, it considers whether the subject-matter of religion — as protected by the U.S. Constitution and the European Convention on Human Rights — makes such comparisons futile. The Article concludes there is value in consulting foreign precedent on religion.

Keywords: European Court of Human Rights, Freedom of Religion, Justice Scalia, Justice Breyer

Suggested Citation

Kolenc, Antony, Putting Faith in Europe: Should the U.S. Supreme Court Learn from the European Court of Human Rights? (December 1, 2016). Georgia Journal of International and Comparative Law, Vol. 45, No. 1, 2016, Dean Rusk International Center Research Paper No. 2018-05, Available at SSRN: https://ssrn.com/abstract=3066068

Antony Kolenc (Contact Author)

University of North Texas Dallas College of Law ( email )

106 South Harwood Street
Dallas, TX 75201
United States

HOME PAGE: http://www.antonykolenc.com

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