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
Date Written: December 1, 2016
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
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