Home > Journals > LAWREVIEW > Vol. 85 > No. 2 (2011)
(European) Stars or (American) Stripes: Are the European Court of Human Rights' Neutrality and the Supreme Court's Wall of Separation One and the Same?
This Article traces the different approaches to religious freedom that the European Court of Human Rights ("ECHR") and the United States Supreme Court have adopted. Although it is difficult to summarize the various tests and trends that have been developed by the Supreme Court, this Article highlights some important doctrinal differences between the Supreme Court and the ECHR.
Part I of this Article briefly surveys the dynamic role of the U.S. Constitution and of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("European Convention"). This Part sets the groundwork for the comparison between the jurisprudence of the Supreme Court, which is part of a sovereign country, and the jurisprudence of the ECHR, which was established by a large number of sovereign European states through the international treaty that created the European Convention.
Part II examines the prevailing American interpretations of religious freedom. This Part is necessarily short, but it nonetheless provides some idea of the various rationales that support the protection of religious liberty in the United States.
Part III explores the ECHR's conception of religious freedom and in particular the separation of church and state that ECHR endorses.
The Article concludes by considering the similarities and differences between the two models of protection of religious freedom. The two models diverge significantly, even though both of them can be characterized as embodying a conception of "separation of church and state." The crucial divergence between the two interpretations derives from an entirely different view of the purpose of separation.