Transatlantic perspectives on proportionality in religious liberty cases: The United States and the European Court of Human Rights

Abstract

The question of how to maximize religious freedom without undermining state authority or unduly burdening other citizens is an ancient one, yet it continues to challenge judges across legal systems. When facing rights conflicts courts are often obliged to balance incommensurate values. The object of this study is to better understand how courts make these hard choices by comparing the cases involving religious freedom in the workplace in two distinct legal environments: the federal appeals courts of the United States and the European Court of Human Rights (the “ECtHR”). The US approach to religious free exercise can be characterized as a diverse array of different principles to be applied according to the context of the case. In some categories of case there is very little right to religious accommodation in the workplace or indeed anywhere else. In others, courts apply a strict scrutiny standard that requires the government to justify any limitation as being the least restrictive means of achieving a compelling state interest. In parallel to this two-track system of review there are other statutory requirements in many situations, creating a fractured system implicating multiple standards of review. The ECtHR, on the other hand, has developed its own unitary balancing system based on German proportionality analysis and structured by the language of the limitations clauses of the European Convention on Human Rights. This thesis compares the workplace cases in the two courts firstly categorized by the context and subject matter of the cases, and then explores the same body of cases by breaking down the methodologies used into a series of common inquiries. The purpose of this form of analysis is to contrast the two approaches in order to shed light on the role that balancing methods play in delivering outcomes. While the cases do not differ vastly when compared in terms of the subject matter of the dispute, the nature of the employer has been somewhat more decisive as a difference between the two jurisdictions. The most important difference to be found is in the treatment of religious organizations. Thus differences in outcomes are significant, but only in specific contexts.

This thesis then compares the cases through the lens of how the courts evaluate (i) the burden imposed on the religious claimant, (ii) the legitimacy and importance of the state interest leading to the rights limitation, (iii) the suitability of the means/ends relationship, and (iv) the relationship between all of the above. It emerges that methodological differences have a significant impact on how religious freedom is evaluated in the US and ECtHR. Firstly, the US system of tiered review and its accompanying categorical approach to reasoning at each step of the process is fundamental to understanding outcomes. The choice of tier of review is usually decisive because each step acts as a potentially decisive threshold. US courts studiously avoid a holistic balancing of interests even when they use balancing rhetoric. In contrast, the ECtHR assembles the outcomes of the inquiries listed above into a holistic balancing of interests. While the result is that religious interests do not win as often in the ECtHR, proportionality allows the Court the flexibility to take greater care of competing rights and interests. The comparison suggests that it is the courts’ respective attitudes towards balancing that are the most explanatory in understanding the differences in religious freedom protections. Methodology, in short, trumps ideology.