Each Conscience A Law Unto Itself? Religious Accommodation in the U.S. and Germany

This paper compares the US Supreme Court’s and the German Constitutional Court’s approaches to religious accommodation. The US Court does not usually require the state to accommodate people through religious exemptions. I argue that Scalia’s critical view of accommodations followed from the political philosophy of Locke that was especially influential at the time of the US founding. In Germany, on the other hand, the Court has continued to require broad accommodations from otherwise valid and generally applicable law since the post-war founding of modern Germany. The paper argues that religious liberty is understood in German constitutional thought to be more closely linked to the concept of human dignity than it is to an apolitical state of nature. I contend that this difference accounts for the German court’s more favorable stance toward accommodations, and that the US court should move toward an understanding of religious liberty that more closely mirrors the German approach.