1 See, e.g., Durham, W. Cole Jr., The Right to Autonomy in Religious Affairs: A Comparative View, in Church Autonomy: A Comparative Survey 683–714, at 684 (Robbers, Gerhard, ed., Lang, Peter 2001)Google Scholar (“From [the European] vantage point, the American experience has typically seemed distinctly irrelevant if not positively threatening to Europeans, because the radical separation of church and state mandated by the Establishment Clause of the First Amendment to the United States Constitution seems hopelessly at odds with most European church-state arrangements.”) (citation omitted). See also Esbeck, C. H., The Establishment Clause as a Structural Restraint on Governmental Power, 84 Iowa Law Review 1, 98 (1998)Google Scholar (“It is in this primary role—when invoked to keep the spheres of government and religion in the right relationship to each other—that the Establishment Clause broke free from older European patterns and made its most unique and celebrated contribution to the American constitutional settlement.”); Id. at 89 n.422 (“Historian Stanford Cobb has observed that America's solution to the ‘world-old problem of Church and State’ was ‘so unique, so far-reaching, and so markedly diverse from European principles as to constitute the most striking contribution of America to the science of government.’” (citing Stanford Cobb, The Rise of Religious Liberty in America at vii (1902)).

2 See Carolyn Evans, Freedom of Religion under the European Convention on Human Rights 19–22 (2001). For example, France has adopted a strict separation conception of the state, see 1958 Constitution art. 1 (“France shall be an indivisible, secular, democratic and social Republic.”) (Fr.), while there is a very close relationship between the Greek Orthodox Church and the state in Greece, see Syntagma [Syn.] [Constitution] sec. 2, arts. 3 (Relations of Church and State) & 13 (Religion). For additional examples, see supra note 1.

3 See supra note 1.

4 In the words of Jefferson, the Establishment Clause was intended to erect “a wall of separation between church and State.” See Daniel Driesbach, Thomas Jefferson and the Wall of Separation between Church and State (2001). Additionally, Justice Hugo L. Black in Everson v. Board of Education stated, “That wall must be high and impregnable. We could not approve the slightest breach.” Everson v. Board of Education, 330 U.S. 1, 18 (1947).

5 Nihonkoku Kenpō [Kenpō] [Constitution], art. 20, para. 1 (Japan) (“Freedom of religion is guaranteed to all. No religious organization shall receive any privileges from the State, nor exercise any political authority.”).

6 Australian Constitution s 116 (“The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion.”).

7 Constitution (1987), art. 3, § 5 (Philippines) (“No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof.”); Konstitutsiia Rossiiskoi Federatsii [Konst. RF] [Constitution] art. 14 (Russia) (“The Russian Federation shall be a secular state. No religion may be established as the State religion or as obligatory.”); Xianea art. 36 (2004) (China) (“No state organ, public organization or individual may compel citizens to believe in, or not to believe in, any religion; nor may they discriminate against citizens who believe in, or do not believe in, any religion.”).

8 See Durham, W. Cole Jr. & Scott, Christine G., Public Finance and the Religious Sector in the United States: Expanding Cooperation in a Separationist State, 2006 Il Diritto Ecclesiastico, 360, 361–62Google Scholar.

9 See, e.g., Kongeriket Norges Grunnlov [Constitution] (1814), art. 16 (Norway) (“The Norwegian church, an Evangelical-Lutheran church, shall remain the Norwegian National Church and will as such be supported by the State.”); Arts. 7–8 Constituzione [Cost.] (Italy) (mentioning the Catholic Church specifically and referring to other churches generally); Constitución Española, Boletín Oficial del Estado, n. 311, Dec. 29, 1978, art. 16(3) (Spain) (“There shall be no state religion. The public authorities shall take into account the religious beliefs of Spanish society and shall consequently maintain appropriate cooperation relations with the Catholic Church and the other confessions.”).

10 See, e.g., Constituição do Repuública Portuguesa [Constitution], Diário da República n. 86/1976 (1976), art. 41(4) (Portugal) (“Churches and other religious communities are separate from the state.”); Grundgesetz für die Bundesrepublik Deutschland [Basic Law], art. 140 (incorporating by reference, inter alia, article 137(1) of the Weimar Constitution, which reads: “There shall be no state church.”); 1958 Constitution, art. 1 (declaring France a “secular” republic).

11 Frank B. Cross, Constitutions and Religious Freedom 166 (2015).

12 Id. (“The next constitutional provision to be examined is the existence of something like the American establishment clause that calls for the separation of church and state. In the sample, 39 percent of the nations have such a provision.”). Cross concludes that “[a] separation clause appears to provide for greater religious freedom, but those benefits seem relatively slight.” Id.

13 Id. at 167–68.

14 Id. at 167.

15 See generally Jacques Robert, Religious Liberty and French Secularism, 2003 Brigham Young University Law Review 637 (2003); Dominique Decherf, French Views on Religious Freedom, Brookings Institute (2001), https://www.brookings.edu/articles/french-views-of-religious-freedom/.

16 See supra notes 8–10.

17 1958 Constitution, art. 1.

18 See Michael Vovelle, The Revolution against the Church: From Reason to the Supreme Being (1991).

19 One popular high school American History textbook explains the motivation for the revolutionary war as follows:

Alan Brinkley, American History 130 (15th ed. 2015). Scholars dispute, however, whether the American Revolution had its origins in a defense of ideals and principles (e.g., democracy and inalienable rights), or whether it was motivated by social and economic interests (e.g., “no taxation without representation”). Id. at 132–33. Early American settlers who had separated from the established Church of England were not rejecting religion in general, but simply rejecting the Church of England. Many Separatists moved to the Americas in hopes of creating a “close-knit Christian community” and “spread[ing] ‘the gospel of the Kingdom of Christ in those remote parts of the world.’” Id. at 41.

20 See Donald R. McClarey, Catholics in the American Revolution, American Catholic, Sept. 23, 2011, http://the-american-catholic.com/2011/09/23/catholics-in-the-american-revolution/ (documenting Catholic involvement in the American Revolution and quoting George Washington's statement to Catholics after the war was over: “I presume that your fellow-citizens will not forget the patriotic part which you took in the accomplishment of their Revolution, and the establishment of their government; or the important assistance which they received from a nation in which the Roman Catholic faith is professed.”). American Catholic leaders also had a notable influence on the Council's teachings on religious liberty. Prior to Vatican II, “The perception of the Church's teaching by many was that whenever she found herself in the minority, the Church would cry religious liberty. However, if the Church was in the majority, the state would be obliged to suppress other faiths.” Such a perception made inroads with non-Catholic Christians difficult and was a particular challenge for the Catholic Church in America. “Thus Father John Courtney Murray, Cardinal Richard Cushing of Boston, Cardinal Francis Spellman of New York, and other American prelates agreed and worked to advance the declaration at the Council.” Omar F. A. Gutierrez, Vatican II and Religious Liberty, Catholic World Report, Jan. 14, 2013, http://www.catholicworldreport.com/Item/1883/vatican_ii_and_religious_liberty.aspx. Before becoming Pope Benedict XVI, Cardinal Ratzinger “described the American model of church-state relations as more hospitable to religious truth and institutions than European models.” See Staff Writer, Church-State Relations in America and Europe (Part 1): Robert Kraynak on America's Civil Religion, Zenit, Mar. 25, 2005, https://zenit.org/articles/church-state-relations-in-america-and-europe-part-1/. Cardinal Ratzinger also played an important role as a theological consultant for the Second Vatican Council. Ratzinger, Vatican II and the Summer of 1962, Vatican Insider, Aug. 24, 2012, http://www.lastampa.it/2012/08/24/vaticaninsider/eng/inquiries-and-interviews/ratzinger-vatican-ii-and-the-summer-of-rFmd13cqV5EljPGAeSfGuL/pagina.html.

21 Everson v. Board of Education, 330 U.S. 1 (1947). The opinion in Everson addresses the limitations that result because of the “wall of separation” between churches and government by the establishment clause by saying that neither states nor the federal government can “set up a church”; “pass laws which aid one religion, aid all religions, or prefer one religion over another”; “force [or] influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion”; or punish a person for “entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance.” Id. at 15–16.

22 See, e.g., Lynch v. Donnelly, 465 U.S. 668 (1984) (O'Connor, J., concurring) (arguing violations of the Establishment clause arise in two principle ways: entanglement and endorsement). Justice O'Connor states, “Endorsement sends a message to non-adherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.” Id. at 688.

23 See, e.g., Agostini v. Felton, 521 U.S. 203 (1997) (reversing the earlier Aguilar case that prohibited state subsidies to religious schools to pay for special education programs). Justice O'Connor writing for the Court noted that this program did not advance religion because the “aid is allocated on the basis of neutral, secular criteria that neither favor nor disfavor religion, and is made available to both religious and secular beneficiaries on a nondiscriminatory basis.” Id. at 231.

24 See, e.g., Id. For further discussion of the interaction between Everson, Lynch, and Agostini, see W. Cole Durham, Jr. & Brett G. Scharffs, Law and Religion: National, International, and Comparative Perspectives 132–52 (2010).

25 See, e.g., Emma Long, The Church-State Debate: Religion, Education and the Establishment Clause in Post War America (2012) (examining how the Court's jurisprudence of the establishment clause has developed since World War II); Michael W. McConnell, The Religion Clauses of the First Amendment: Where Is the Supreme Court Heading?, 32 Catholic Lawyer 187, 188–95 (1989) (recounting “the recent history of twists and turns in religion clause doctrine”).

26 Everson, 330 U.S. at 1.

27 Id. at 3.

28 See, e.g., Bruce J. Dierenfeld, The Battle over School Prayer 48 (2007) (arguing that “almost every religion case decided by the U.S. Supreme Court in the past half-century has been affected by Black's schizophrenic decision in Everson”).

29 See supra note 21.

30 Id. at 16 (We must consider the … statute in accordance with the foregoing limitations imposed by the First Amendment. But we must not strike that state statute down if it is within the state's constitutional power even though it approaches the verge of that power.”).

31 The Court held that although a state cannot “contribute tax-raised funds to the support of an institution which teaches the tenets and faith of any church,” it also can't hinder an individual's right to freely exercise her faith by excluding her from “receiving the benefits of public welfare legislation” because of her religious affiliation. Id. The First Amendment was not written to make the state be an adversary to religion. Id. at 18. Rather, it “requires the state to be a neutral in its relations with groups of religious believers and non-believers.” Id. The establishment clause means that the state can neither “handicap religions … [nor] favor them.” Id.

32 Id. at 16.

33 Id. at 17–18. Notice that “general” programs invoke the value of equality, as opposed to “separation,” which suggests the value of freedom or independence of religion and religious influence from the state.

34 Id. at 18. Neutrality, like “generality,” is a concept that evokes equality and equal treatment.

35 Id.

36 Id. (concluding that while the Court “could not approve the slightest breach” of the impregnable wall, “New Jersey has not breached it here”). Justice Jackson was not persuaded by the majority. In his dissenting opinion, after expressing his sympathy for those “compelled by law to pay taxes for public schools,” and “constrained by conscience and discipline to support other schools for their own children,” he nevertheless found that the majority's advocacy for “complete and uncompromising separation of Church from State, seem[ed] utterly discordant with its conclusion yielding support to their commingling in educational matters.” Id. at 18–19 (Jackson, J., dissenting).

37 X v. The United Kingdom, App. No. 7782/77 Eur. Ct. H.R. (1978).

38 Darby v. Sweden, App. No. 15581/85 Eur. Ct. H.R. (1990).

39 Lemon v. Kurtzman, 411 U.S. 602 (1971).

40 In Lemon, two statutes, one from Pennsylvania and one from Rhode Island were challenged as “violative of the Establishment and Free Exercise Clauses of the First Amendment and the Due Process Clause of the Fourteenth Amendment.” Id. at 606. The Pennsylvania statute provided that nonpublic elementary and secondary school teachers could be reimbursed “for the cost of teachers’ salaries, textbooks, and instructional materials in specified secular subjects.” Id. at 607. Under Rhode Island's statute, nonpublic teachers, even those at “church-related educational institutions,” received “a supplement of [up to] 15% of their annual salary.” Id. The Court held both unconstitutional. Id.

41 See id. at 612–13 (internal quotations omitted) (establishing that for a statute to survive a First Amendment challenge, (1) it must “have a secular legislative purpose; (2) “its principal or primary effect must be one that neither advances nor inhibits religion”; and (3) it “must not foster an excessive government entanglement with religion”).

42 See, e.g., Tilton v. Richardson, 403 U.S. 672 (1971); Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. 756 (1973) (invalidating government grants for building maintenance of religious schools and tax credits to parents); Levitt v. Comm. for Pub. Educ., 413 U.S. 472 (1973) (prohibiting reimbursement of religious schools for the costs of administering and recording state-required examinations); Meek v. Pittenger, 421 U.S. 349 (1975) (prohibiting loan of instructional equipment and materials to religious schools); Wolman v. Walter, 433 U.S. 229 (1977) (prohibiting reimbursement of costs of teacher-led field trips); Aguilar v. Felton, 473 U.S. 402 (1985) (invalidating federal program that paid public school teachers to teach remedial classes to children at religious schools in poor inner-city neighborhoods); School District of the City of Grand Rapids v. Ball, 473 U.S. 373 (1985) (striking down remedial and enrichment programs provided to classes of non-public school students on the premises of religious schools).

43 “I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion or prohibiting the free exercise thereof,’ thus building a wall of separation between church and State.” Reynolds v. United States, 98 U.S. 145, 164 (1878) (emphasis added); see also Goodson v. Northside Bible Church, 261 F. Supp. 99, 103 (S.D. Ala. 1966) (“the [legislation in question] violates what Jefferson termed the ‘wall of separation between Church and State’ on other grounds. No constitutional principle is more firmly imbedded in our heritage than this separation. It is a fundamental to our liberty.”).

44 This is evident in the litigation that arose following the Court's decision in Everson. Although the exact degree of separation has been “difficult to define with precision,” holdings in lower federal courts demonstrate the outer boundaries of the doctrine. Gilfillan v. City of Philadelphia, 480 F. Supp. 1161, 1166 (E.D. Pa. 1979). See, e.g., Goodson, 261 F. Supp. 99 (holding as a violation of the establishment clause an act that gave a 65 percent majority of local parishioners the right to “sever … connection with the parent church and retain the possession and ownership of the local church property free and clear of any trust”); Hunt v. Bd. of Educ., 321 F. Supp. 1263, 1267 (S.D. W. Va. 1971) (granting motion for “summary judgment and dismissal” of a school board that was sued after it prohibited a group of students from holding a prayer group).

45 Kustannus Oy Vapaa Ajattelua Ab and Others v. Finland, App. No. 2047/92 Eur. Ct. H.R. (1996).

46 X v. The United Kingdom, App. No. 7782/77 Eur. Ct. H.R. (1978).

47 See, e.g., Agostini v. Felton, 521 U.S. 203 (1997) (reversing Aguilar and, in part, Grand Rapids); Mitchell v. Helms, 530 U.S. 793 (2000) (permitting use of federal funds for purchasing educational materials and equipment, such as textbooks and computers, effectively overruling much of Meek and Wolman).

48 See Witters v. Washington Department of Services for the Blind, 474 U.S. 481 (1986) (upholding state scholarships to blind citizens seeking occupation in professions, businesses, or trades, including to a student who wanted to use the scholarship to study at a religious institution to become a pastor); Zobrest v. Catalina Foothills School District, 509 U.S. 1 (1993) (upholding Arizona school district program that provided an interpreter for a deaf student attending a parochial school).

49 See, e.g., Mueller v. Allen, 463 U.S. 388 (1983) (reasoning that aid given to parochial schools only as a result of parental decisions in tax deductions indicates no official state approval of that religion and does not violate the establishment clause); Witters, 474 U.S. 481 (upholding state scholarships to blind citizens seeking occupation in professions, businesses, or trades, including to a student who wanted to use the scholarship to study at a religious institution to become a pastor); Zelman v. Simmons-Harris, 536 U.S. 639 (2002) (upholding use of educational vouchers that were often used by parents to send their children to religiously affiliated schools); Mitchell, 530 U.S. 793 (permitting use of federal funds for purchasing educational materials and equipment, such as textbooks and computers).

50 For example, Mueller, 463 U.S. 388, allows for governments to reimburse parents who spend money on their children's education in religious schools; Witters, 474 U.S. 481, allows for government scholarship money to be used at religious institutions; Zelman, 536 U.S. 639, allows for government-funded educational vouchers to be used at religious schools; and Mitchell, 530 U.S. 793, allows for the lending of government owned educational materials to religious schools.

51 See. e.g., Mueller, 463 U.S. at 398–99; Witters, 474 U.S. at 489–91; Zobrest, 509 U.S. at 8; Zelman, 536 U.S. at 649–52; Mitchell, 530 U.S. at 794–95.

52 While the diverse nature of this aid makes calculating exact numbers difficult, some figures can help illustrate the extent of this aid. For example, in 2010–2015, the federal government spent approximately $859,000,000 in voucher and educational savings account programs that fund educational expenses in private schools. U.S. Government Accountability Office, GAO-16-712, School Choice: Private School Choice Programs Are Growing and Can Complicate Providing Certain Federally Funded Services to Eligible Students 12 (2016). Reports indicate 69–88 percent of these schools are religiously affiliated (id. at 27 n. 43). In more specific circumstances, such support can turn into situations like North Carolina in 2016, where over 90 percent (approximately 11 out of 12 million dollars) of government private-school funding went to faith-based schools. Ann Doss Helms & T. Keung Hui, NC Vouchers Head to Religious Schools, News & Observer (April 17, 2016), http://www.newsobserver.com/news/|local/counties/wake-county/article72328707.html). A similar pattern in Cleveland (96.6 percent of all voucher recipients attended religious schools) led to massive concerns for the four Supreme Court Justices making up the dissent in Zelman, 536 U.S. at 703–04.

53 See, e.g., Goodman, Judith B., Charitable Choice: The Ramifications of Government Funding for Faith-Based Health Care Services, 26 Nova Law Review 463 (2002)Google Scholar (discussing implications of the “Charitable Choice” bill, which authorizes faith-based organizations to compete with secular organizations for federal funding of welfare, health, and social services).

54 Clinton once stated, “[F]amilies cannot solve [societal, childcare, and welfare] problems alone. We, as a community, have an obligation here. Government can provide some help.” William Jefferson Clinton, Between Hope and History 121 (1996). These ideals eventually led President Clinton to pass several welfare reform laws including what are now referred to as Charitable Choice provisions. These provisions eventually lead to the direct funding of religious organizations that help provide social services (for general discussion of Charitable Choice, see Hebah Farrag, Charitable Choice: A Bibliography, University of Southern California Center for Religion and Civic Culture (Aug. 22, 2016), https://crcc.usc.edu/charitable-choice-a-bibliography/). Upon signing part of this welfare reform legislation, President Clinton stated that such an effort “provides an historic opportunity to end welfare as we know it and transform our broken welfare system by promoting the fundamental values of work, responsibility, and family.” Bill Clinton on Welfare & Poverty, On the Issues, http://www.ontheissues.org/Celeb/Bill_Clinton_Welfare_&_Poverty.htm (last visited Jan. 16, 2017).

55 “It is one of the great goals of my administration to invigorate the spirit of involvement and citizenship. We will encourage faith-based and community programs without changing their mission. We will help all in their work to change hearts while keeping a commitment to pluralism … . [W]hen we see social needs in America, my administration will look first to faith-based programs and community groups, which have proven their power to save and change lives.” George W. Bush, Remarks by the President in Announcement of the Faith-based Initiative, Office of the Press Secretary (Jan. 29, 2001).

56 See President Obama Signs Executive Order to Implement Reform Recommendations on the President's Advisory Council on Faith-based and Neighborhood partnerships, Nov. 17, 2010, https://obamawhitehouse.archives.gov.

57 See, e.g., Exec. Order No. 13,199, 3 C.F.R. §§ 752–54 (2001), which created the White House Office of Faith-Based and Community Initiatives. The office called for and established dramatic expansion of cooperation between civil government and private religious organizations to help alleviate social ills. Oliver Thomas, Charitable Choice/Faith-Based Initiatives, First Amendment Center, Sept. 16, 2002, http://www.|firstamendmentcenter.org/charitable-choicefaith-based-initiatives/.

58 It is interesting to note that Obama, on the campaign trail, committed to banning religious hiring in social-service programs or faith-based organizations using federal funds. Upon being elected, however, President Obama amended other aspects of the initiative but left Bush and Clinton hiring rules intact, to the surprise of many. President Obama's Faith-Based Initiatives, Institutional Religious Freedom Alliance, http://www.irfalliance.org/president-obamas-faith-based-initiatives/ (last visited Jan. 16, 2017).

59 See Zelman v. Simmons-Harris, 536 U.S. 639 (2002) (upholding use of educational vouchers that were often used by parents to send their children to religiously affiliated schools).

60 Association Les Témoins de Jehovah v. France, App. No. 8916/05 Eur. Ct. H.R. (2011) (the European Court of Human Rights held that imposing a tax on “hand-to-hand gifts” received by one of the national governing bodies of the Jehovah's Witnesses violated the European Convention).

61 Hasan and Eleym Zengin v. Turkey, App. No. 1448/04, Eur. Ct. H.R. (2007).

62 Darby v. Sweden, App. No. 15581/85 Eur. Ct. H.R. (1990) (the European Commission and the European Court of Human Rights confirmed that the state of Sweden could directly collect taxes for an established church); Kustannus Oy Vapaa Ajattelua Ab and Others v. Finland, App. No. 2047/92 Eur. Ct. H.R. (1996) (the European Commission held that a nonbeliever may be required to pay the proportion of taxes to a state church that the church uses for carrying out “secular functions”); Association Les Témoins de Jehovah v. France, App. No. 8916/05 Eur. Ct. H.R. (2011) (the European Court of Human Rights held that imposing a tax on “hand-to-hand gifts” received by one of the national governing bodies of the Jehovah's Witnesses violated the European Convention); X v. The United Kingdom, App. No. 7782/77 Eur. Ct. H.R. (1978) (the European Commission on Human Rights ruled that states are allowed to subsidize religious schools, but there is no positive obligation on states to do so); Classroom Crucifix II Case, Federal Constitutional Court of Germany, 93 BVefGE 1 (1995) (the Federal Constitutional Court of Germany ruled that the affixation of a crucifix in the classrooms of a state compulsory school that is not a denominational school infringes German Basic Law); Lautsi v. Italy, 2011-III Eur. Ct. H.R. (2011) (the ECtHR ruled that the requirement in Italian law that crucifixes be displayed in classrooms of states schools is allowed); Hasan and Eleym Zengin v. Turkey, App. No. 1448/04, Eur. Ct. H.R. (2007) (the ECtHR ruled an exemption procedure was insufficient to protect those who are opposed to religious education in public schools).

63 José Casanova, Religion, European Secular Identities and European Integration, in Religion in the New Europe 23–34 (Krzystof Michalski ed., 2006), http://books.openedition.org/ceup/1273.

64 Bundesverfassungsgericht [Federal Constitutional Court], May 16, 1995, 93 BVerfGE 1 (1995) (Germany) (Classroom Crucifix II Case); Justin Collings, Democracy's Guardians: A History of the German Federal Constitutional Court 1951–2001 at 260–66 (2015).

65 Lautsi, 2011-III; Jeroen Temperman, The Lautsi Papers: Multidisciplinary Reflections on Religious Symbols in the Public School Classroom 81 (2012) (“The precarious unity of … [the] different Christian churches and interest groups was not so much in favour of the mandatory Catholic crucifix … but it was predominantly directed against what was interpreted as a court ruling that could be the beginning of an aggressive secularist judicial policy resulting in the purge of all kinds of public manifestations in Europe.”).

66 “The Court takes the view that these considerations entail an obligation on the State's part to refrain from imposing beliefs, even indirectly, in places where persons are dependent on it or in places where they are particularly vulnerable … . The Court cannot see how the display in state-school classrooms of a symbol that it is reasonable to associate with Catholicism (the majority religion in Italy) could serve the educational pluralism which is essential for the preservation of ‘democratic society’ within the Convention meaning of that term.” Lautsi v. Italy, App. No. 30814/06 Eur. Ct. H.R. (2009).

67 Classroom Crucifix II Case, Federal Constitutional Court of Germany, 93 BVerfGE 1 (1995).

68 Elementary Schools Act (VoSchG) § 13(1) VSO.

69 Classroom Crucifix II Case at ¶ 3(a).

70 Lautsi v. Italy, 2011-III Eur. Ct. H.R. (2011).

71 Id. at ¶ 67.

72 465 U.S. 668 (1984).

73 Id. at 687.

74 Id. at 674–78, 692–94, 714–17.

75 Id. at 716.

76 Casanova, supra note 63, at 9–10.

77 Many European countries are currently “faced with the challenge of integrating a growing diversity of religions, particularly Islam.” Bader, Veit, Alidadi, Katayoun & Vermeulen, Floris, Religious Diversity and Reasonable Accommodation in the Workplace in Six European Countries: An Introduction, 13 International Journal of Discrimination and the Law 54, at 74 (2013)CrossRefGoogle Scholar. See also Islam, Europe and Emerging Legal Issues (W. Cole Durham, Jr., Rik Torfs, David M. Kirkham & Christine Scott eds., 2016).

78 See, e.g., Pettersson, Per, State and Religion in Sweden: Ambiguity between Disestablishment and Religious Control, 24 Nordic Journal of Religion and Society 119 (2011)Google Scholar.

79 Durham & Scharffs, supra note 24, at 124.

80 Id.

81 Casanova, supra note 63, at 32–33.

82 See Robbers, Gerhard, Religious Freedom in Germany, 2001 BYU Law Review 643, 656–58 (2001)Google Scholar (discussing several accommodations that Germany has created to allow religious freedom for Muslims, and stating that “[p]robably the foremost challenge in German law on religion today is the need to integrate the large Islamic population”).

83 508 U.S. 520, 533–535 (1993).

84 Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006).

85 See Scharffs, Brett G., Equality in Sheep's Clothing: The Implication of Anti-Discrimination Norms for Religious Autonomy, 10 Santa Clara Journal of International Law 107 (2012)Google Scholar.

86 See supra “The Rise of Indirect Benefits, Parental Choice, and Neutrality.”

87 See Christopher McCrudden & Sacha Prechal, The Concepts of Equality and Non-Discrimination in Europe: A Practical Approach 2 (2009) (discussing the various sources of equality and nondiscrimination in European law: “the constitutional traditions of Member States and the EEA countries; EC law; and human rights law, in particular the European Convention on Human Rights.”).

88 See generally Durham, supra note 1. See also Perry Dane, The Varieties of Religious Autonomy, in Church Autonomy: A Comparative Survey, supra note 1, 117–48, at 118 (“Countries such as Israel and India also explicitly extend a high degree of formalized religious autonomy in matters of ‘personal law’ such as marriage or divorce.”) (citation omitted).

89 W. Cole Durham, Jr., Silvio Ferrari, Cristiana Cianitto, & Donlu Thayer, Law, Religion, Constitution: Freedom of Religion, Equal Treatment, and the Law 26 (2016).

90 Id.

91 Id.

92 Id.

93 For a more complete discussion of the various religious autonomy issues throughout the world, see Durham. & Scharffs, supra note 24.

94 Some have stated that church autonomy is protected by the establishment clause, but not the free exercise clause. C. H. Esbeck, Differentiating the Free Exercise and Establishment Clauses, 42 Journal of Church & State 311, 320 n.31 (2000) (declaring that it is the Establishment Clause, but not the Free Exercise Clause, that affords church autonomy). Others have said that the Free Exercise Clause protects certain aspects of church autonomy while the Establishment Clause protects other aspects. See EEOC v. Catholic Univ. of Am., 83 F.3d 455, 457 (D.C. Cir. 1996) (stating “that the Free Exercise Clause forbids judicial review” of church autonomy cases concerning the employment decisions of employees who are “the functional equivalent of a minister,” but that the Establishment Clause forbids the application of federal employment law to the employment of ministers.). See also Mark E. Chopko, Constitutional Protection for Church Autonomy: A Practitioner's View, in Church Autonomy, supra note 1, 95–116, at 103 (arguing “that both the Free Exercise Clause and the Establishment Clause support the concept of constitutional ‘church autonomy’”).

95 See, e.g., Watson v. Jones, 80 U.S. 679 (1872) (deference to hierarchy principle, based upon doctrinal reasons for decisions and implied consent of members); Presbyterian Church v. Mary Elizabeth Blue Hull Memorial Church, 393 U.S. 440 (1969) (Court rejects departure from doctrine test and courts should not resolve ecclesiastical questions, although courts can use neutral principles of law, developed for use in all property cases); Jones v. Wolf, 443 U.S. 595 (1979) (allowing state to apply “neutral principles of law” in dispute arising from church schism).

96 See Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976) (court declining to involve itself in a decision to defrock a minister, a decision that was arguably an arbitrary decision that did not follow canonical procedure); Corporation of Presiding Bishop v. Amos, 483 U.S. 327 (1987) (holding that provision of the Civil Rights Act of 1964 that allows religious employers to choose employees for nonreligious jobs based on their religion did not violate the Establishment Clause).

97 Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church, 344 U.S. 94 (1952).

98 See id. “For starters, it is striking, and instructive, that even as the Cold War against Soviet aggression, expansion, and influence was ramping up, and notwithstanding what had to have been the Justices’ clear-eyed appreciation for the realities of the relationship between the Soviet state and the Church authorities in Moscow, the Court nevertheless held the First Amendment line against an effort by politically accountable actors to strike back in defense of what they perceived as American interests and values.” Richard W. Garnett, “Things That Are Not Caesar's”: The Story of Kedroff v. St. Nicholas Cathedral 17 (Notre Dame Law School, Legal Studies Research Paper No. 11-27, 2011), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1896266.

99 Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 565 U.S. 171 (2012).

100 “The Supreme Court decided against the Obama administration today on what many have called the most important religious freedom case in decades.” Michael De Groote, Supreme Court Rejects Obama Administration Arguments in “Most Important” Religious Freedom Case, Deseret News, Jan. 11, 2012, http://www.deseretnews.com/article/700214420/Supreme-Court-rejects-Obama-administration-arguments-in-most-important-religious-freedom-case.html?pg=all. Hannah Clayson Smith, one of the attorneys representing the Hosanna-Tabor Church and School said, “You saw a unanimous Supreme Court saying that the government has no business interfering with who a church chooses to be its minister … It rejected the [Obama] administration's view of churches as inherently discriminatory.” Id.

101 Employment Div. v. Smith, 494 U.S. 872, 879 (1990) (“Subsequent decisions have consistently held that the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’”) (citation omitted).

102 The Court narrowed the scope of Smith to “outward physical acts” as opposed to government interference with an internal church decision that affects the faith and mission of the church itself. Hosanna-Tabor, 565 U.S. at 173.

103 Religionsgemeinschaft der Zeugen Jehovahs v. Austria, App. No. 40825/98 (Eur. Ct. H.R., 2008), http://hudoc.echr.coe.int/eng#{“itemid”:[“001-88022”]}.

104 Id. ¶ 61.

105 Hasan and Chaush v. Bulgaria, 2000-XI Eur. Ct. H.R. 117, at ¶ 62.

106 In Obst v. Germany, the Latter Day Saints' head of public relations in Europe appealed his termination for adultery to the European Court under Article 8, claiming that it violated his privacy rights. See Obst v. Germany, App. 425/03 Legal Summary (Eur. Ct. H.R., 2010), http://hudoc.echr.coe.int/eng#{“itemid”:[“002-834”]}.

107 In Schüth v. Germany, a Catholic organist appealed termination for adultery under Article 8 of the ECHR (Privacy). Schüth v. Germany, 2010-V Eur. Ct. H.R. 397, at ¶ 43. Schüth was dismissed for violating his duty of loyalty under rules for service in the Catholic Church, which were incorporated in his contract. Id. ¶ 13. Church rules provided for increased duty of loyalty for some employees. Id. ¶ 16. The Employment Appeal Tribunal of Germany held that higher standards shouldn't apply to Schüth because he did not work in pastoral catechesis, he lacked mission canonica, and he was not a leading collaborator in church work. Id. ¶ 16. The Federal Employment Tribunal of Germany overturned the lower court in stating that adultery was a serious moral failure and was a legitimate basis for termination. Id. ¶ 23. After remittal of the case, the Employment Appeal Tribunal upheld the termination because playing the organ was actually a part of the church's liturgy, with close proximity to the religious mission of the church. Id. ¶ 25. The Federal Constitutional Court also upheld the termination. Id. ¶ 35.

While explaining their decision to overturn the German courts’ decision, the ECtHR mentioned that Catholic and Protestant churches employ more than 1 million people (including their charities), which makes them the largest employer after the state of Germany. Id. ¶ 31. Both churches have specific regulatory structures governing employment, with a vision of employment as part of a Christian community of service, and a context where collective bargaining is rejected. Id. ¶ 32.

108 The Court ultimately held that the termination was improper because the labor courts “failed to weigh the rights of the applicant against those of the employing Church in a manner compatible with the Convention.” Id. ¶ 74. Part of the reasoning the court gave for finding in favor of the employee was that the organist would have a difficult time finding new employment, id. ¶ 73, because “the applicant's case had received media coverage,” id. ¶ 72, and because “the impugned conduct in the present case went to the very heart of the applicant's private life.” Id. ¶ 72.

109 Siebenhaar v. Germany, App. No. 18136/02 (Eur. Ct. H.R., 2011), available in French and German at http://hudoc.echr.coe.int/eng#{“appno”:[“18136/02”]}.

110 Sindicatul “Pastorul cel Bun” v. Romania, App. No. 2330/09 (Eur. Ct. H.R., 2013), http://hudoc.echr.coe.int/eng#{“itemid”:[“001-122763”]}.

111 Fernández Martínez v. Spain, 2014-II Eur. Ct. H.R. 449, at ¶ 3.

112 See Mezey, Susan Gluck, Civil Law and Common Law Traditions: Judicial Review and Legislative Supremacy in West Germany and Canada, 32 International & Comparative Law Quarterly 689, 689–90 (1983)CrossRefGoogle Scholar (explaining that the prevailing theory of “legislative supremacy in civil law countries and the presumed reluctance of civil law courts to overturn legislative enactments, and the concomitant view of judicial activism in common law nations with the alleged free-wheeling judicial infringement on legislative power” is often times inaccurate and that the roles are actually reversed when you compare civil law Germany with common law Canada.).

113 See supra note 50.

114 See supra note 60.

115 See supra note 61.

116 See supra notes 83–84.