In 1791, the authors of the American Bill of Rights thought religious freedom was so fundamental to the liberty of the individual and to justice in their communities that they picked it to be the first guarantee in the First Amendment they made to their constitution. So far none of the major theorists has been able to provide a satisfactory account of what rights and freedoms can be claimed in the name of some higher spiritual or moral force. Religious rights are an anomaly for those who say judicial review is all about process and democracy, and are either explained away or just ignored. This chapter discusses the interpretivism of American judges and the pragmatism of the German judges in dealing with issues on freedom of religion, along with religious liberty and popular sovereignty, religious liberty on the Sabbath, religious liberty and state morality.
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