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Overview
"Our only choice as a nation, we are told, is either authoritarianism or anarchy. We are told that the "rule of law" is threatened if the "spirit of the law" is considered. But are these truly our only options? One area in which this debate looms large is the court's protection of our religious liberties. The issue should be, "When must a person's constitutional right to the 'free exercise of religion' yield to the requirements of a safe and well-ordered society?" After fifty years of careful scrutiny of laws that interfere with religious practices, however, the current U.S. Supreme Court announced the blanket rule that the good order of society uniformly requires that a general law trump religious obligations. The Court view the interpretive options as a stark polarity: either uniform obedience to the general laws, or utter anarchy." "In this book, Catharine Cookson challenges the wisdom of this judicial drift, and its false dichotomy between anarchy and order. In its place she offers the process of casuistry, a method of reasoning grounded within the legal tradition as well as social ethics. Using this casuistry-based method, Cookson treats free exercise cases as a type of conflict of principles: the principle good of free exercise is in conflict with the principle good espoused in the legislation. To resolve this conflict, both parties must come forward with profs and evidence. The particular context of the conflict is emphasized, with a close examination of the facts of the case, as well as the pragmatic good to be accomplished and the pragmatic evils to be avoided under the statue. Casuistry is not a content-free process, and Cookson delves into the Western Christian tradition for appropriate principles and paradigms to be used in a casuistical free exercise analysis." "Cookson then demonstrates how this method should be applied. Focusing on the specific details of religious practices, she invites the reader (and prosecutors and justices) to see a claimedSynopsis
Jurisprudence regarding the "free exercise of religion" clause of the U.S. Constitution is in a state of confusion. There has been a series of rapid changes in the standard used by the Supreme Court to determine when a statute impermissibly restricts free exercise. The trend is now towards greater acceptance of government claims about the importance of regulation over religious practices. Here, Cookson challenges the wisdom of this judicial drift, and its false dichotomy between anarchy and a system that respects religious freedom. In its place she offers a new, practical approach to resolving free exercise conflicts that could be used in both federal and state courts. Cookson shows the reader how violations of religious freedom affect the community whose values are at stake.