Putting Faith in Europe: Should the U.s. Supreme Court Learn from the European Court of Human Rights?

• Publication year: 2016

PUTTING FAITH IN EUROPE: SHOULD THE U.S. SUPREME COURT LEARN FROM THE EUROPEAN COURT OF HUMAN RIGHTS?

Antony Barone Kolenc^*

TABLE OF CONTENTS

I. INTRODUCTION ...................................................................................3

II. POLICY-BASED LIMITS ON COMPARING THE U.S. AND EUROPEAN MODELS ............................................................................4

III. SYSTEM-BASED LIMITS ON COMPARING THE U.S. AND EUROPEAN MODELS ............................................................................9

A. Differences in Structure Between the Two Courts.....................10
B. Similarity of Focus: Federalism, Subsidiarity, and the Margin of Appreciation..............................................................13

1. Admissibility Doctrine.........................................................15
2. The "Margin of Appreciation" Doctrine.............................17

IV. SUBJECT-MATTER-BASED LIMITS ON COMPARING THE U.S. AND EUROPEAN MODELS..................................................................19

A. The First Amendment and Article 9...........................................19

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B. Article 9 and the Free Exercise Clause......................................21
C. Article 9 and the Establishment Clause.....................................22

V. CONCLUSION ..................................................................................... 24

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I. Introduction

Do the United States of America and its Supreme Court have anything to learn from modern Europe regarding the freedom of religion? Should Europe look to U.S. jurisprudence for guidance on interpreting its own religious freedom protections?

In the twenty-first century, the European Court of Human Rights (European Court) has been making controversial headlines in its religion jurisprudence. It has ruled that Italy may hang crucifixes in government-run schools,¹ but also that Switzerland can prevent Muslim teachers from wearing the hijab in its public schools.² The European Court has allowed France to ban the Islamic burqa in public places,³ but it also has required the United Kingdom to allow a flight attendant to wear a Christian necklace at work.⁴ These and other important decisions have caught the attention of constitutional scholars, who often draw comparisons between these cases and the religion jurisprudence of the U.S. Supreme Court.⁵ But are such comparisons valid? This Article will explore that query in a systematic fashion.

One may question—and indeed, Justice Antonin Scalia repeatedly did so⁶ —why the Supreme Court ever would consult "foreign precedent,"⁷ particularly when the Court is interpreting the U.S. Constitution on a purely domestic issue, such as the freedom of religion. Allowing foreign judges to influence modern interpretations of domestic U.S. law seems to ignore the

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notion that the American colonies broke their ties with European ideas and practices in a fiery revolution. Indeed, many in the United States today still promote the concept of American exceptionalism that Alexis de Tocqueville noted early in the nation's history.⁸ Having thrown off the shackles of Europe, should the Supreme Court now embrace those same old ideas and repatriate them to American soil?

While many scholars today compare religion cases in the United States and Europe, no one has yet addressed in detail why that practice is legitimate. This Article tackles that issue by defending the practice of consulting foreign precedent, within reasonable limits. It breaks down the problem into three parts, looking first at policy-based objections to the practice. It then explores whether differences between the U.S. and European systems invalidate these comparisons. Finally, it considers whether the subject-matter of religion—as protected by the U.S. Constitution and the European Convention on Human Rights—makes such comparisons futile. The Article concludes there is value in consulting foreign precedent on religion. Indeed, Europe and the United States may have a few lessons to teach one another about the value of religion in modern, pluralistic democracies.

II. POLICY-BASED LIMITS ON COMPARING THE U.S. AND EUROPEAN MODELS

Regarding the reliance on foreign precedent in modern Supreme Court decisions, Justice Scalia passionately argued:

[I]rrelevant are the practices of the "world community," whose notions of justice are (thankfully) not always those of our people. . . ." Where there is not first a settled consensus among our own people, the views of other nations, however enlightened the Justices of this Court may think them to be, cannot be imposed upon Americans through the Constitution."⁹

Surely he is correct that foreign precedent cannot be imposed upon the Supreme Court, but does that mean foreign jurisprudence must have no role at all, even as a reference point?

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A policy debate is raging about the propriety of drawing lessons for the U.S. Supreme Court from foreign sources, such as the European Court. In recent years, some politicians have bemoaned official references to foreign precedent in U.S. jurisprudence.¹⁰ The issue has garnered so much attention that Republicans in Congress (unsuccessfully) introduced legislation in 2004 and 2005 that would have prohibited federal courts from using "foreign authorities except in special circumstances where the foreign law 'informs an understanding of the original meaning of the laws of the United States.' "¹¹ Some worry that uniquely American ideas will be tarnished if exposed to the brushstrokes of a European system that never understood American values. Indeed, all this controversy about foreign precedent in domestic legal interpretation has generated serious scholarship on both sides of the argument,¹² yet no one has systematically tackled the issue in the specific context of the courts' jurisprudence on religion.

From a historical perspective, the Framers considered foreign law when designing the U.S. Constitution; however, judges in that founding generation generally did not find it appropriate to consult foreign sources when interpreting the Constitution.¹³ It is no surprise, then, that in the first 150 years of Supreme Court decisions, the Justices almost never referenced foreign precedent to resolve a domestic issue.¹⁴ Although Chief Justice John Marshall made an oblique reference to foreign law in McCulloch v. Maryland, the most notable pre-modern use occurred as late as 1905, when the Court—interpreting the Equal Protection Clause—referred to Roman,

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Napoleonic, and Germanic law to help determine the world's historical recognition of "the power to deal with the estate of an absentee."¹⁵

After World War II, the modern controversy over foreign precedent began to percolate. Starting in the 1940s, Justice Felix Frankfurter led a trend to cite foreign law in Supreme Court opinions, though not as the actual rationale for the Court's decision-making.¹⁶ Then, members of the Court began referencing foreign precedent when interpreting the Eighth Amendment's prohibition on "cruel or unusual punishment," with a majority of the Court eventually citing "laws of other countries" as "instructive for [the Amendment's] interpretation," while at the same time insisting that the "opinion of the world community" was "not controlling" on the outcome of capital cases.¹⁷ Still, the dispute over foreign precedent did not blossom in earnest until the 1990s, driven largely by the advocacy of five Supreme Court Justices from across the political spectrum—Stevens, O'Connor, Kennedy, Ginsburg, and Breyer.¹⁸ This high-level promotion eventually led to this practice outgrowing its Eighth Amendment roots, with some Justices using foreign law when interpreting such varied domestic concepts as federalism¹⁹ and even affirmative action.²⁰

Perhaps the most controversial use of foreign precedent involved an interpretation of the Fourteenth Amendment's Due Process and Equal Protection Clauses. In Lawrence v. Texas, Justice Kennedy's majority opinion cited a conflicting decision from the European Court to support the Supreme Court's conclusion that it had wrongly decided the controversial Bowers v. Hardwick case, which had found no right to homosexual

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sodomy.²¹ This was the first time the European Court had ever been cited in the text of a Supreme Court majority opinion.²² Kennedy went on to note, "The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent."²³ In dissent, Justice Scalia railed against this "[d]angerous dicta" by the majority, pointing out that "[c]onstitutional entitlements" do not spring "into existence, as the Court seems to believe, because foreign nations decriminalize conduct."²⁴ At bottom, Scalia worried that carefully drawn standards based on deeply rooted American constitutional-law concepts would be abandoned in order to follow the crowd of other countries (especially those in Europe), to the detriment of cherished and hard-won rights in the unique experience of the United States.²⁵

Of all the Supreme Court advocates in favor of citing foreign precedent in domestic decisions, Justice Breyer has been particularly outspoken about its benefits. He has conceded that "there may be relevant political and structural differences between [foreign] systems and our own," yet he continues to believe that the experience of other countries "may nonetheless cast an empirical light on the consequences of different solutions to a common legal problem . . . ."²⁶ This is true even in the context of the Establishment Clause. For instance, Justice Breyer has admitted that foreign precedent has caused him to be "uncertain" about the validity of his dissent in Zelman v. Simmons-Harris.²⁷ In a 2005 debate with Justice Scalia, Breyer stated, "[O]ne of...