Rights as a basis for the religious neutrality of the state: Lessons from Europe for American defenders of non-establishment

Abstract

This article compares elements of the approach of the European Court of Human Rights (ECtHR) and the US Supreme Court (USSC) to the issue of the separation of religion and state. It shows how the European experience of such issues can help to demonstrate which are the more compelling, and the less compelling justifications for such separation. It argues that a comparison between key decisions of the ECtHR and the USSC reveals rights-based justifications for strict separation of religion and state to be relatively weak. It argues that rights-based separation will not rule out non-oppressive forms of establishment of religion and place pressure on courts to enter into risky assessments of the compatibility of teachings of particular faiths with fundamental rights. This casts doubt on the theories advanced by several influential proponents of a maximalist reading of the separationist requirements of the First Amendment as well as explaining some of the problematic elements of Strasbourg jurisprudence such as the tendency of the Court to make pronouncements on the compatibility of Islam with human rights norms.