Regulating Religion, by Catharine Cookson
Catharine Cookson, the director of the Center for the Study of Religious Freedom at Virginia Wesleyan College, has added a new approach to the range of criticisms of the U.S. Supreme Court's 1990 decision in Employment Division v. Smith. In Smith, the court held that two state-funded drug counselors who took peyote during Native American Church services could be denied unemployment compensation because their actions violated the generally applicable narcotics laws. Cookson argues that Smith was wrongly decided, and that the courts in free exercise cases should follow a casuistry-based method.
Casuistry, as she describes it, is a means of reasoning that employs paradigms in light of which particular cases are to be judged through analogy, rules and close examination of the full set of facts. In other words, she advocates a case-by-case method that focuses closely on the facts of any particular case. She acknowledges that such decision-making has the capacity to appear ad hoc, but argues that it has long been in place in common law courts.
Cookson devotes a significant portion of Regulating Religion to developing and applying four possible "typologies," or paradigms, against which to compare free exercise disputes: the two kingdoms type, the enlightenment type, the levitical type and the duly ordered authority type. That the book here sags under the weight of its own too-detailed analysis is unfortunate, since the choice of governing paradigms is central to the casuist project. Ultimately, Cookson argues that the two kingdoms type is the most appropriate in free exercise cases because it simultaneously takes into account both the demands of religious doctrine and the demands of the state, leading decision-makers to compare the relevant weight of the two demands in order to reach the most "just" solution.
