Sacrificing Religious Freedom in Europe: Why the Pan-European Courts Need Douglas Laycock

Abstract In Employment Division v. Smith (1990), the U.S. Supreme Court held that neutral and generally applicable laws would no longer receive strict scrutiny review. Many feared that Smith had severely truncated the protection of the First Amendment Free Exercise Clause. Three years later, however, in a controversial Santerian slaughtering case, Douglas Laycock persuaded a unanimous Supreme Court in Church of Lukumi Babalu Aye, Inc. v. City of Hialeah to highlight an important limitation on the Smith neutrality standard. Both “masked as well as overt” government hostility, targeting, or discrimination against religion are constitutionally “suspect,” Lukumi made clear. Recent Supreme Court free exercise cases have emphasized this limitation. Over the past decade, the European Court of Human Rights and the Court of Justice of the European Union are replaying the same story that played out in the U.S. Supreme Court in the 1980s and 1990s and have gradually weakened their religious freedom provisions into a guarantee of government neutrality alone. In their most recent cases, these pan-European high courts have upheld blatantly discriminatory regulations of Muslim and Jewish ritual slaughtering, favoring animal welfare over religious freedom. These courts need to take a lesson from Laycock’s argument in Lukumi that neutrality requires states not to take sides for or against religion and not to uphold laws that have the mere pretense of neutrality while targeting the core practices of religious minorities.