No More Tiers? Proportionality as an Alternative to Multiple Levels of Scrutiny in Individual Rights Cases

This article will explore how the explicit adoption of proportionality analysis as a single analytical tool might lead, not only to a more coherent approach to individual rights cases, but will also bring together aspects of the current multiple analytical tiers in a way that allows full consideration of both the individual rights and the social values present in these cases. Part I of this article will give a brief overview of the history of the creation and application of the various tiers of analysis used by the United States Supreme Court and explore how the once-sharp difference in those applications have blurred in recent years. Part II will describe the proportionality analysis used by other nations’ courts in a wide range of individual rights cases. Part III will focus on how an explicit adoption of proportionality might lead to significant improvement in the analysis of cases presenting issues under the free exercise clause, currently a particularly confusing and contentious source of debate.