Religion Lessons from Europe: Intolerant Secularism, Pluralistic Neutrality, and the U.S. Supreme Court

Abstract

Case law from the European Court of Human Rights demonstrates to the U.S. Supreme Court how a pluralistic neutrality principle can enrich the American society and harness the value of faith in the public sphere, while at the same time retaining the vigorous protection of individual religious rights. The unfortunate alternative to a jurisprudence built around pluralistic neutrality is the inevitability of intolerant secularism — an increasingly militant separation of religious ideals from the public life, leading ultimately to a repressive society that has no room in its government for religious citizens. The results of intolerant secularism are seen in a recent series of negative cases decided by the European Court, which illustrate how highly secularized nations can trample the fundamental rights of religious citizens for the sake of secular ideals. The Supreme Court can avoid this type of intolerance in the United States by distancing itself from the principle of strict neutrality that the Court often has repeated in its Establishment Clause cases. A better path for the Supreme Court is to emulate a series of positive cases from the European Court that demonstrate pluralistic values. These cases show the value that religion can bring to public life, and the ability of progressive nations to welcome religious diversity into the public square without harming individual rights. The net result of this shift in the Supreme Court’s focus — without sacrificing the value and purpose of the Establishment Clause — would be to promote the cause of religious pluralism in the United States, and to enhance the dignity of the American people to live out their religious faith in the community insofar as they choose (or do not choose) to do.

Keywords: Constitutional Law, Courts, First Amendment, Human Rights Law, International Law, Religion Law, Supreme Court of the United States, European Court of Human Rights, Religious Freedom, Religious Liberty, Establishment Clause, Free Exercise Clause