Rights, recourse to the courts and the relationship between religion, law and state in Europe and the United States

Abstract

This paper compares the jurisprudence of the European Court of Human Rights and the US Supreme Court to show the weakness of rights-based justifications such as those suggested by Sager and Eisgruber, Dworkin and Nussabaum, for the strict religious neutrality of the state. Justifying secularism in rights terms is likely to lead to minimialist forms of secularism and risks drawing courts into problematic assessments of the compatibility of the beliefs of particular faiths with liberal democracy. The paper closes by suggesting that rights-based litigation is a problematic vehicle through which to regulate the relationship between religion, the law and the state as fundamental rights cannot do justice either to the reasons in favour of strict separation of religion and state or to the richness of religious experience.