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

McCrea, R; (2017) Rights as a basis for the religious neutrality of the state: Lessons from Europe for American defenders of non-establishment. International Journal of Constitutional Law , 14 (4) pp. 1009-1033. 10.1093/icon/mow062. Green open access

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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.

Type: Article
Title: Rights as a basis for the religious neutrality of the state: Lessons from Europe for American defenders of non-establishment
Open access status: An open access version is available from UCL Discovery
DOI: 10.1093/icon/mow062
Publisher version: http://dx.doi.org/10.1093/icon/mow062
Language: English
Additional information: Copyright © The Author 2016. Oxford University Press and New York University School of Law. All rights reserved. This version is the author accepted manuscript. For information on re-use, please refer to the publisher’s terms and conditions.
UCL classification: UCL > Provost and Vice Provost Offices
UCL > Provost and Vice Provost Offices > UCL SLASH
UCL > Provost and Vice Provost Offices > UCL SLASH > Faculty of Laws
URI: http://discovery.ucl.ac.uk/id/eprint/1530763
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