Freedom of Religion at Large in American Common Law: A Critical Review and New Topics

By Sánchez-Bayón, Antonio | Journal for the Study of Religions and Ideologies, Spring 2014 | Go to article overview

Freedom of Religion at Large in American Common Law: A Critical Review and New Topics


Sánchez-Bayón, Antonio, Journal for the Study of Religions and Ideologies


Introduction: a critical review against fake beliefs

There are many foreign studies (in the fields of Politics and Constitutional Law or the area of Ecclesiastical Law/Church-State Studies, mostly by Continental European authors), that assume several wrong premises about the USA and its culture (lato sensu -including political and legal institutions), which makes it difficult to properly conduct the analysis and the model obtained. The most common mistakes committed by Continental authors are the following:

a) Prejudice 1: the wrong assumption that most American people are Protestant and, consequently, guide their lives by a professional logic. The author who spread this explanation in Continental Europe was Weber in his popular book The Protestant Ethic and the Spirit of Capitalism. Following this premise, education in USA should mainly be professionally oriented from the very beginning to develop specific work skills. Nevertheless, this is not the caseit is more likely to be an ethnocentric mistake on the part of Continental Europe people, who do indeed educate their future generations in this way. In the USA a personalized education (a broad scope of selection) is predominant (in the academic world). In addition, it is based on mature knowledge (not memorization), and on critical reflection in order to learn to be resolute and diligent in any social aspect, not only in the professional sense. This evaluation was established because of Pragmatism1. This pragmatism has favored the broadening of the educative method as the case method, of which some examples will be given in this paper in order to understand how an American Jurist reasons.

b) Prejudice 2: there is a mystifying presumption about the American model, as a model of complete independence between Church and State and a total freedom of religion; this is an oversimplification of a complex reality. Thanks to this prototypical secularization, in the USA there is a distance between religion and policy, as two different social spheres, but it does not imply independence, just separation (a definition of competences). Also, this model could be described as an implementation of a multifaceted system of accommodation, based on some principles, and each generation has to reinterpret those principles and this model, to adjust the Legal System to its circumstances. In the same way, the freedom of religion is not total, because public powers have the constitutional commitment to protect and to promote the free exercise of religious liberty and non-discrimination, and other associated rights, and this is a continuous mission. Also, in the last two (Presidential) Administrations (Clinton and W. Bush), there are a lot examples of violations of this freedom and its associated rights - certain measures have been taken of positive discrimination at both extremes (see case study).

c) Prejudice 3: another kind of legal misunderstanding is about the extreme simplification of American Common Law, which is reduced to the (federal) Constitution and some Case Law, despite the many sources that exist in the US Legal System. As a consequence, another mistake (linked to the previous one) is the ignorance about the special branch of the Legal System and its academic discipline, both focused on the legal dimension of the religious factor: a) primary or direct sources of Law (basic and auxiliary regulation, e.g. Constitutions, Case Law; regulation of development, e.g. Statutory Law, Executive Law); b) secondary or indirect sources (doctrine/scholars, e.g. handbooks, treatises; other less common, e.g. practice guides, form books).

Hence, having observed so many erroneous prejudices, this research aims to discover the authentic relations between Church and State, the type of protection given to Freedom of Religion and how it affects Public policies, while obtaining a clear and systematic vision of the American Legal System regarding the subject in question.

Interdisciplinary area of American Civil Church Law2_

a) Constitutional Studies: This branch of the study has mainly been developed in Schools of Law, following a positive-formalist approach (First Amendment and its judicial interpretation). …

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