Minority Rights, Governing Regimes, or Secular Elites: Who Benefits from the Protection of Religious Speech by the U.S. Supreme Court and European Court of Human Rights?

Abstract

This paper draws on new data regarding judicial decisions involving religious and anti-religious expression to map the political beneficiaries of judicial empowerment. In particular, the paper assesses the extent to which free expression decisions issued by the U.S. Supreme Court and European Court of Human Rights (ECtHR) have favored claimants who are religious majorities, religious minorities, or secular elites. We find the U.S. doctrine relatively more libertarian and the ECtHR doctrine relatively more secularist, but that both bodies of case law extend regular and substantial rights protection to religious minorities.

Keywords: free speech, freedom of expression, religion, hate speech, U.S. Supreme Court, European Court of Human Rights, judicial empowerment