Mark Kende, Free Exercise of Religion: A Pragmatic and Comparative Assessment (February 25, 2010). University of South Dakota Law Review, Forthcoming. Available at SSRN: http://ssrn.com/abstract=1559471
This short article analyzes the leading free exercise of religion cases from the U.S., South Africa, and Canada. It reveals that the most well reasoned case (from Canada) take an approach that can be called ‘constitutional pragmatism.’ This approach focuses on the factual details of the case, the social and historical context, and the likely consequences. It is also transparent in its justifications and openly balances the various competing factors on both sides of the case. Moreover, the weaker cases utilize more formalistic and abstract reasoning, tend to be overbroad, and therefore produce decisions that create doctrinal tensions with previous precedents. This comparative analysis can provide valuable lessons for religious liberty jurisprudence.