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Regulating Religion: The Courts and the Free Excercise Clause

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"...an authoritative and constructive study of the US Supreme Court's free exercise jurisprudence."
--Choice

"Cookson's conclusion is powerful . She has the courage to assert that current free exercise jurisprudence is not working and to present argue for a more effective alternative. This book offers a fascinating study in applied ethics for students of American constitutional law and for religious historians and ethicists in general."
 -- The Journal of the American Academy of Religion

"Beautifully written and argued... it is rare to find a book on religion and the Constitution in the United States that brings such ideologically unencumbered care and intelligence to the issue. Cookson's reading of the major Supreme Court cases is fresh and smart."
- The Journal of Religion

"In this worthy book [Catherine Cookson] makes a compelling case for a casuistical approach to church-state jurisprudence having to do with free exercise cases."
-H-NET

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.

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. After fifty years of careful scrutiny of laws that interfere with religious practices, the current U.S. Supreme Court announced that the good order of society uniformly requires that a general law trump religious obligations. 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. Cookson treats free exercise cases as conflicts of principles, in which the context must be carefully considered, and both sides carry burdens of proof. The Western Christian tradition on freedom of conscience is the basic source for appropriate principles and paradigms, and the book discusses the four main types of! approaches: two kingdoms, levitical, duly-ordered authority, and enlightenment. Chapters on the Native American Church, and on parents' use of spiritual healing methods on children, illustrate the casuistical free exercise process.

About the Author
Catherine Cookson is at Virginia Wesleyan College.
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