Chapter

Casuistical Free Exercise Jurisprudence

Catharine Cookson

in Regulating Religion

Published in print May 2001 | ISBN: 9780195129441
Published online November 2003 | e-ISBN: 9780199834105 | DOI: http://dx.doi.org/10.1093/019512944X.003.0009
Casuistical Free Exercise Jurisprudence

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Perceptions of authoritarian injustice or of anarchical laxity are just as harmful to the integrity of the justice system as actual impropriety. Casuistry offers clear, definable paradigmatic limits to the free exercise right, and places the burden of proof on both the state and the religious adherent. This book proposes that a casuistical free exercise analysis, while not perfect, protects the courts’ integrity by offering a fairer and more just process for resolving the conflict of principles that lies at the heart of free exercise cases. To those who would reject casuistry as a new element without precedent, and as an arbitrary choice without any foundation or authority, the book notes that casuistry is quintessentially the process used in common law decision making, and actually has been used in deciding a significant number of major free exercise cases by the U.S. Supreme Court. What casuistry requires of the courts is a searching scrutiny with discernment and a willingness to make, explain, and justify these decisions to a fearful public and to a faithful “people of the wilderness.”

Keywords: anarchical laxity; authoritarian injustice; common law; conflict of principles; decision making; discernment; integrity of the justice system; searching scrutiny

Chapter.  1470 words. 

Subjects: Religious Studies

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