The Distinctiveness of Religion in American Law: Rethinking Religion Clause Jurisprudence

Description

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.

Kathleen A. Brady is a Senior Fellow at the Center for the Study of Law and Religion at Emory University, Atlanta. 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.

'Kathleen Brady's book confronts the most controversial and difficult question in the field of religious freedom: What are the grounds for the law to treat religion differently from other human activities, by protecting it from burdens imposed by generally applicable laws? When should such claims be protected, and what about claims of secular conscience that conflict with law? Brady's discussion of these issues and her answers are unfailingly thoughtful and honest - a model of scholarly contribution on a topic where much has been said but fundamental issues remain contested.' Thomas C. Berg, University of St Thomas School of Law, Minnesota 'First Amendment scholars are increasingly preoccupied with the question of whether the law's special treatment of religion is unfair. This book is the best account of how that became a central issue, and offers a bold and original response. Anyone who wants to understand contemporary debates on religious liberty should read it.' Andrew Koppelman, John Paul Stevens Professor of Law, Northwestern University, Illinois 'For more than a decade, many scholars and courts have ignited a controversy by arguing that our longstanding tradition of religious liberty is unjustifiable and that a guarantee of religious equality should be substituted in its place. Kathleen Brady's rigorous, perceptive, and fair-minded analysis is by far the best guide to this debate. In addition, her interdisciplinary defense of religious liberty is important, richly argued, and eloquently presented.' Steven H. Shiffrin, Charles Frank Reavis, Sr, Professor of Law Emeritus, Cornell University Law School 'An important and timely contribution to an important issue that is treated here with refreshing nuance and sophistication and a minimum of polemical over-characterization.' Brett G. Scharffs, Journal of Church and State