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In recent decades, religion's traditional distinctiveness under the First Amendment has been challenged by courts and scholars. As America grows more secular and as religious and nonreligious convictions are increasingly seen as interchangeable, many have questioned whether special treatment is still fair. In its recent decisions, the Supreme Court has made clear that religion will continue to be treated differently, but we lack a persuasive account of religion's uniqueness that can justify this difference. This book aims to develop such an account. Drawing on founding era thought illumined by theology, philosophy of religion, and comparative religion, it describes what is at stake in our tradition of religious freedom in a way that can be appreciated by the religious and nonreligious alike. From this account, it develops a new framework for religion clause decision making and explains the implications of this framework for current controversies regarding protections for religious conscience.
E-Book Content
the distinctiveness of religion in american law Rethinking Religion Clause Jurisprudence In recent decades, religion’s traditional distinctiveness under the First Amendment has been challenged by courts and scholars. As America grows more secular and as religious and nonreligious convictions are increasingly seen as interchangeable, many have questioned whether special treatment is still fair. In its recent decisions, the Supreme Court has made clear that religion will continue to be treated differently, but we lack a persuasive account of religion’s uniqueness that can justify this difference. This book aims to develop such an account. Drawing on founding era thought illuminated by theology, philosophy of religion, and comparative religion, it describes what is at stake in our tradition of religious freedom in a way that can be appreciated by the religious and nonreligious alike. The new framework for religion clause decision making advanced here will be essential reading for anyone interested in current controversies regarding protections for religious conscience. Kathleen A. Brady is a Senior Fellow at the Center for the Study of Law and Religion at Emory University. Her scholarship focuses on the intersection of law and religion including the First Amendment religion clauses, religion in public life, law and theology, and Catholic social thought.
LAW AND CHRISTIANITY
Series Editor John Witte, Jr., Emory University Editorial Board Nigel Biggar, University of Oxford Marta Cartabia, Italian Constitutional Court / University of Milan Sarah Coakley, University of Cambridge Norman Doe, Cardiff University Brian Ferme, Marcianum, Venice Richard W. Garnett, University of Notre Dame Robert P. George, Princeton University Mary Ann Glendon, Harvard University Kent Greenawalt, Columbia University Robin Griffith-Jones, the Temple, the Inns of Court R.H. Helmholz, University of Chicago Mark Hill, the Inns of Court / Cardiff University Wolfgang Huber, Lutheran Church of Germany Michael W. McConnell, Stanford University John McGuckin, Columbia University Mark A. Noll, University of Notre Dame Michael Welker, University of Heidelberg The Law and Christianity series publishes cutting-edge work on Catholic, Protestant, and Orthodox Christian contributions to public, private, penal, and procedural law and legal theory. The series aims to promote deep Christian reflection by leading scholars on the fundamentals of law and politics, to build further ecumenical legal understanding across Christian denominations, and to link and amplify the diverse and sometimes isolated Christian legal voices and visions at work in the academy. Works collected by the series include groundbreaking monographs, historical and thematic anthologies, and translations by leading scholars around the globe.
editor bio John Witte, Jr., is Director