2. Supreme Court Jurisprudence
The Supreme Court’s jurisprudence has vacillated
between granting free exercise exemptions from
generally applicable laws are refraining from
crafting such exceptions.
It has disallowed some funding for religious
schools and allowed funding others.
It has refused to intervene in some internal church
disputes and rendered decisions in other cases.
3. International Norms and the
Constitution
There is dispute over whether Americans
should look beyond our own borders,
experiences, and texts for discussions of basic
rights like religious liberty.
It is politically incorrect for prospective
Supreme Court justices to admit the influence
of any sources outside the Constitution and
the law of the United States.
4. Constitutional Interpretation
The Supreme Court has looked abroad at
foreign authority in three recent cases:
v. Virginina (2002) – used a brief from the
European Union
Lawrence v. Texas (2003) – cases cited from the
European Court of Human Rights
Roper v. Simmons (2005) – looked to
international covenants and other human rights
treaties.
Atkins
5. Constitutional Interpretation
Part of the confusion results from failing to
distinguish between “foreign law” and
“international law.”
It is one thing for the Supreme Court to analyze
an international treaty signed by the President.
It is quite another to cite case law from a foreign
jurisdiction relying on specific foreign law.
6. International Religious Liberty
1.
2.
3.
Reasons the Supreme Court should look to
international norms with regard to religious liberty:
Every person has the “right” to form his or her
own opinions about religion.
The international norms on religious liberty are in
many ways the same norms of the American
experiment.
Comparing American laws on religious liberty to
international norms will help integrate American
law and international law, and American
domestic and foreign policy.
7. The International Framework of
Religious Liberty
International religious rights and liberties have
deep roots in:
Classical
Roman law
Medieval canon law
Early modern Protestant and Catholic legal
traditions.
8. Protections of Religious Rights and
Liberties
The Universal Declaration of Human Rights
(1948) was elaborated on in four international
instruments containing critical protections of
religious rights and liberties.
1.
2.
3.
4.
1966 Covenant
1981 Declaration
1989 Vienna Concluding Document
1992 Minorities Declaration
9. International Norms and American
Laws Compared
The United States has ratified the 1966 Covenant.
The 1981 Declaration, 1989 Vienna Concluding
Document, and the 1992 Minorities Declaration
are not binding legal instruments in the United
States.
However, these international human rights
instruments confirm and prioritize several of the
founding principles of religious liberty in America.
10. International Norms
The principles of liberty of conscience,
individual and corporate free exercise of
religion, and equality of a plurality of religions
before the law form the backbone of the
international norms on religious liberty.
The international instruments would strongly
commend the “strict scrutiny” test for free
exercise claims.
