In this Article, Professor Edward Eberle provides a comparative overview of constitutional safeguards affecting religious freedom in Germany and the United States. Specifically the author analyzes the German and American approaches to the free exercise of religion within their respective constitutional systems. The result is an illuminating exposition that provides much insight for comparative and constitutional scholars.
In the years following the Second World War, religious freedoms in Germany developed along similar, individualist paths to those found in the United States Constitution. However, unlike the Constitution, the Basic Law's provisions touching on religious liberty are detailed and quite elaborate and further arise from a cultural milieu characterized by cooperation between church and state. Recently, America has witnessed an evolution in the way the United States Supreme Court treats the free exercise of religion--from a fundamental right, protected as such by the courts through the employment of an exacting review of impinging legislation, to a value that is to be considered in the democratic process but which may, ultimately, yield to neutral legislation.
Professor Eberle posits that an analysis of developments in Germany in the post- World War II period yields valuable insight into the remarkable shift in jurisprudence that has occurred in the United States. The author first describes the nature of free exercise rights within the German constitutional order before turning to relevant case studies to illuminate the exercise of religious liberties in Germany The Article then compares the United States Supreme Court's reasoning in Sherbert v. Verner to its decision in Employment Division, Department of Human Resources v. Smith, exposing the shift in the Court's thinking over the course of recent decades. Noting the different approaches between the German and American courts, Professor Eberle offers comparative observations concerning the nature of free exercise freedoms in the two countries and concludes that such liberties are more vibrant and protective of minority rights under the German constitutional system. His study is valuable in illuminating the purpose, utility, and value of a free exercise right within constitutional government.
78 Tul. L. Rev. 1023 2003-2004