Book

Regulating Religion

Catharine Cookson

Published in print May 2001 | ISBN: 9780195129441
Published online November 2003 | e-ISBN: 9780199834105 | DOI: http://dx.doi.org/10.1093/019512944X.001.0001
Regulating Religion

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Religious free exercise conflicts occur when religiously compelled behavior (whether action or inaction) appears to violate a law that contraindicates or even criminalizes such behavior. Fearful of the anarchy of religious conscience, the U.S. Supreme Court opted instead for authoritarianism in this church and state matter: The state's need for civil order is conclusively presumed to be achieved by enforcing uniform obedience to generally applicable laws, and thus legislation must trump the human and constitutional right to religious freedom. Rejecting the Court's unthinking rigorism, the book more appropriately views a free exercise case as a conflict of principles or “goods”: the basic constitutional and human right to freedom of conscience and religious freedom versus the societal good furthered and protected by the legislation. The book recommends an alternative analytical free exercise process grounded within the common law tradition as well as social ethics: casuistry. Casuistical reasoning requires a careful analysis of the particulars and factual context of the case, and relies upon analogies and paradigmatic illustrations to get to the heart of the principles at issue. The book furthermore explores the panoply of theories, self‐understandings, typologies, contexts, and societal constructs at play in free exercise conflicts, and in the final chapters applies casuistry to two free exercise situations, spiritual healing methods applied to children, and ingestion of sacramental peyote in Native American Church rituals.

Keywords: Anarchy; Authoritarianism; casuistry; children; church and state; civil order; conclusive presumptions; conflict of principles; Free exercise of religion; Freedom of conscience; Human rights; Native American Church; Peyote; Religious freedom; social order; Spiritual healing

Book.  304 pages. 

Subjects: Religious Studies

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Table of Contents

Introduction in Regulating Religion

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The Process of Casuistry in Regulating Religion

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