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Regulating ReligionThe Courts and the Free Exercise Clause$
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Catharine Cookson

Print publication date: 2001

Print ISBN-13: 9780195129441

Published to Oxford Scholarship Online: November 2003

DOI: 10.1093/019512944X.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 19 September 2021

Casuistical Free Exercise Jurisprudence

Casuistical Free Exercise Jurisprudence

A Summary and Some Conclusions

(p.186) 8 Casuistical Free Exercise Jurisprudence
Regulating Religion

Catharine Cookson

Oxford University Press

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

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