Abstract

GONZALEZ DE LA VEGA, Geraldina. Two different approaches in constitutional interpretation with special focus in religious freedom. A comparative study between Germany and the United States. Bol. Mex. Der. Comp. [online]. 2008, vol.41, n.122, pp.795-833. ISSN 2448-4873.

In this paper I analyze the constitutional approaches that the German Federal Constitutional Court and the Supreme Court of the United States use, in particular, I analyze the approaches they use to solve religion controversies. Particularly, the focus is the way both courts approach to State-Church relations and the possibility of fundamental rights encroachments. The emphasis of the paper is that decisions involving freedom of religion, like many other hard cases, have to be solved in a way in which the judges optimize the interests in stake and not just try to define what the meaning of the norms are or was meant to be.

Keywords : Constitutional Interpretation; Religion; United States Supreme Court; German Federal Constitutional Court; Fundamental Rights; Freedom of Religion; Establishment Clause; State-Church Relations; Optimization; Balancing; Practical Concordance.