REGULATING RELIGION: THE COURTS AND THE FREE EXERCISE CLAUSE by Catharine Cookson, New York: Oxford University Press, 2001. 269 pp. Cloth $45.00. ISBN: 0-19-512944-X.

Reviewed by Stephen M. Feldman, Professor of Law and Associate Member of Political Science, University of Tulsa.

What method or approach should the courts, particularly the United States Supreme Court, use to decide free exercise issues? More specifically, how should the Court reconcile the religious interests and practices of free exercise claimants with the interests of society as manifested in generally applicable legislation? These are the questions addressed by Catharine Cookson in REGULATING RELIGION: THE COURTS AND THE FREE EXERCISE CLAUSE. Cookson has a J.D. from Rutgers University and a Ph.D. in religious studies from Indiana University. She currently is the Director of the Center for the Study of Religious Freedom at Virginia Wesleyan College. In short, she is eminently qualified to address the complexity of religious freedom from the perspectives of both law and religion.

Despite Cookson's dual perspectives, the book is largely an exercise in traditional legal theory. That is, Cookson claims both to describe and prescribe legal doctrine. She first presents her preferred doctrinal method for resolving free exercise issues, which she calls casuistry. She then describes how casuistical reasoning already is evident in a significant number of the Supreme Court's free exercise opinions. However, Cookson maintains that the Court does not consistently use casuistical reasoning and that, most important, the current Court has adopted a formalistic method in free exercise cases that is antithetical to casuistry. Since, according to Cookson, casuistical reasoning is the best approach to free exercise disputes, Cookson then advocates for the current Court to repudiate its formalism and to adopt casuistry as its primary method for resolving free exercise cases.

As traditional legal theory goes, REGULATING RELIGION is well-executed. The narrative flow, scope, and detail of the book are impressive. She begins by describing the various approaches that the Supreme Court has used in free exercise cases starting with REYNOLDS v. UNITED STATES (1879), the Mormon polygamy case, and moving to the current approach articulated in EMPLOYMENT DIVISION, DEPT. OF HUMAN RESOURCES v. SMITH (1990), the Native American Church peyote case. The majority opinion in SMITH, written by Justice Scalia, provides the foil for Cookson's argument. In SMITH, the free exercise claimant sought to be exempted from a generally applicable criminal law. For many years before SMITH, the Court had applied a compelling state interest test to such exemption claims, the most common type of free exercise case. Under the compelling state interest test, a balancing approach supposedly skewed toward the free exercise claimant, the Court would ask whether the government's action was necessary to achieve a compelling interest or purpose. SMITH is well-known for repudiating this ostensibly religion-protective approach. The SMITH Court reasoned that a free exercise claim presents any court with a categorical choice: either the court defers to the legislative will, as expressed in the generally applicable law, or the court defers to individual religious consciences, which would lead to anarchy, or at least the Court so assumes. Faced with this choice, the Court opted for a formalistic deference to the legislature.

The problem with SMITH, from Cookson's perspective, is that the Court's formalistic approach does not account for "the competing principles at issue in a free exercise claim: the religiously compelled obligation and the framework within which it occurs, and the societal good meant to be advanced or protected under the statute" (p. 108). Cookson therefore presents in depth her alternative approach: casuistry. Casuistry is a method seen mostly in ethics, especially in ethical reasoning about hard moral problems. As explained by Cookson, Aristotelian moral philosophy is "foundational for Western casuistry" (p. 40). Cookson herself expressly recognizes, though, that ethical casuistry is the same form of reasoning that typifies traditional common law decision making. In law, casuistical reasoning basically is analogical reasoning from case precedents or paradigmatic examples. Casuistical arguments rely on "analogy, context, presumptions, and paradigms" (p. 39). Cookson elaborates, "Casuistry thus plays a prominent role in both legal and ethical reasoning: The particulars of the case are crucial to the determination of the legality or morality of the conduct. The casuist does not reason 'from the top down,' applying absolute principles categorically across the board. Indeed, the casuist points out that there are few, if any, absolute principles. . In casuistry, primary emphasis is placed upon a nuanced and sensitive analysis of the context, to give fair and in-depth consideration of all the competing goods and principles at stake" (p. 41). Casuistry, as thus explained, is particularly fitting in hard cases where principles appear to conflict. And of course, free exercise cases are just such cases with discordant principles-where "the good of religious freedom to fulfill one's obligations to one's God is in potential conflict with the good of societal order as represented by the law" (p. 3).

Because casuistry is a process or method, the substance of the relevant paradigms, presumptions, and principles that are necessary for resolving free exercise cases must come from elsewhere. Cookson argues that this substance should be derived from "the history and the philosophy of the movement toward religious freedom in the West" (p. 47). She therefore devotes a detailed chapter to the articulation of "four types or models, within the context of Western Christian theology and tradition, for the relationship between conscience and state authority" (p. 48). Cookson is most partial to the two kingdoms model, in which "the secular and the sacred are separate kingdoms with distinct powers, jurisdictions, and responsibilities" (p. 49), but she also accepts an enlightenment model, which emphasizes "an esteem for reason, common sense, and reasonableness," though it "is firmly rooted in the Christian tradition" (p. 50). Cookson's exploration of the history of religious freedom eventually takes her into the ideas of the framing generation, particularly the writings of James Madison, Thomas Jefferson, Isaac Backus, and John Leland. The point of this history, according to Cookson, is that free exercise casuistry should be substantively animated by a strong judicial concern for "the importance of divine obligations" (p. 98). Thus, a state should not be able to trample on an individual's religious obligations or convictions merely because of some nebulous general interest or vaguely defined "good of society" (p. 98). At the same time, the protection of free exercise has limits because, "free exercise protection does not extend to actions which cause harm to the person, property, or privileges of citizenship of another in the name of one's own religious freedom/obligation" (p. 98).

Cookson devotes two chapters to responding to the greatest obstacles to free exercise casuistry. The first obstacle is the commitment of liberal political theory to a conception of an independent and autonomous self for whom religious obligations is merely a matter of personal choice. Cookson argues that this viewpoint is especially problematic for members of nondominant religions who understand themselves as religiously encumbered. Their religious beliefs and practices are not a matter of free choice but rather are compelled. The second obstacle to a free exercise casuistry is the likelihood that in times of severe social stress, mainstream religions are apt to act on their religious phobias and attempt to oppress nondominant religious groups. In the subsequent chapter, Cookson illustrates her points with a detailed analysis of the SMITH case. Indeed, as she unravels SMITH with the detail appropriate to a casuistical approach, she argues that not only did the Supreme Court wrongly decide the case but also that SMITH was actually an easy case (going the opposite way of the Court's decision). Finally, in the penultimate chapter, Cookson further illustrates in an impressive manner her ability to fashion a casuistical legal argument by taking on the hard case of parents who attempt to limit their children to spiritual healing.

Despite the strengths of REGULATING RELIGION as a manifestation of traditional legal theory, the book has two interrelated weaknesses. First, while Cookson's heavy reliance on Christian history is understandable, it is also somewhat in tension with her obvious concern for protecting nondominant religions. Her reliance on Christianity is understandable because, as Cookson recognizes, many have viewed America as a Christian nation. Moreover, Cookson argues that her preferred conception of Christianity helps reveal the bankruptcy of the liberal notion of the volitional self and its untoward consequences in free exercise cases. Although this point is not especially original-for instance, David and Susan Williams (1991) argued similarly a decade ago-it is nonetheless an important point to make, and Cookson does it well. Plus, to a degree, Cookson effectively uses her Christian-tinged position to facilitate arguing for greater protection of nondominant religions. The problem is that Cookson does not contemplate how this same Christian grounding of free exercise can and does influence Supreme Court justices to understand religion and religious freedom in ways that sometimes harm free exercise claimants who belong to nondominant religions, especially non-Christian religions (Feldman 1997; Mazur 1999). For instance, the justices might fail to understand the significance of non-Christian religious practices, such as the use of peyote by members of the Native American Church, because such practices often do not closely parallel mainstream Christian practices. Indeed, as Cookson herself argues, the meaning of Christianity is ambiguous, and at least two models of the Christian view of the relation between religion and government are narrow and would be detrimental to religious outsiders.

This criticism intertwines with my second criticism of REGULATING RELIGION. Cookson's prescriptive point revolves around her recommendation that the Supreme Court change its methodology in free exercise cases: the Court should repudiate its formalistic approach, adopted in SMITH, and should instead use a casuistical approach. This argument harmonizes nicely with Cass Sunstein's recent argument in favor of a judicial minimalism based on analogical reasoning from case precedents (Sunstein 1999). Yet, the assumption underlying Cookson's argument is that a change in method would produce a change in outcomes; if the Court were to adopt a casuistical approach to free exercise claims, then the Court would protect the religious practices of religious outsiders more frequently. The problem is that the political/religious backgrounds of the justices and the history of the Court's past decisions suggest that a change to a casuistical method would not produce Cookson's desired result. For example, Cookson praises Justice O'Connor, concurring and dissenting in SMITH, for her argument to continue using the balancing approach of the compelling state interest test. Yet, from Cookson's perspective, O'Connor got this more casuistical approach wrong in its application (p. 147). After all, she agreed with the final outcome of Scalia's majority opinion, and the free exercise claim was denied. Unfortunately, the majority of justices on the current Court are far more likely to use a casuistical approach to reach conclusions that correspond more with O'Connor's views than with Cookson's.

In fact, since the Court began seriously considering free exercise claims, around World War II, Christians who belong to nondominant sects and who brought free exercise exemption claims to the Court sometimes won and sometimes lost. However non-Christians who brought exemption claims to the Court always lost-even when the Court supposedly applied the compelling state interest test. So, for instance, Cookson argues that in WISCONSIN v. YODER (1972), the Court not only used a casuistical approach to the free exercise exemption claim but also reached the right result, finding that the religious practices of the Old Order Amish warranted protection. Cookson emphasizes that the "Court carefully considered the Old Order Amish's own narratives which described the meanings of and motivations for their claimed religious practice. Once the Court understood the context, it then found analogies to more familiar (mainstream) religious practices of similar importance (e.g., Baptism, Sabbath-keeping, etc.) as helpful bridges into understanding the importance placed upon the unfamiliar practices of the Other [the Amish]" (p. 31). Cookson, though, fails to consider that perhaps the justices sympathized so readily with the religious claims of the Amish because they resonated closely with the justices' own Christian religious backgrounds (Feldman 2000). In particular, the YODER Court was deeply impressed by the Amish's devotion "to a life in harmony with nature and the soil, as exemplified by the simple life of the early Christian era that continued in America during much of our early national life" (Wisconsin v. Yoder 1972, 210). When non-Christians have brought similar free exercise exemption claims, the Court has not sympathized with the non-mainstream religious practices. In sum, whether the Court uses a casuistical or formalistic approach, the religious orientations of the justices are likely to strongly affect the outcomes of free exercise exemption cases. Although the current Court is more religiously diverse than any previous Court, the political/religious inclinations of the justices are likely to continue producing denials of free exercise claims.

In conclusion, REGULATING RELIGION has great strengths and weaknesses. On the one hand, it would be an especially useful book for anyone concerned with learning the details of the history of the Christian idea of religious freedom, the SMITH case, and the free exercise problem presented by spiritual healing. On the other hand, Cookson's hopes for the future of free exercise cases are unlikely to be fulfilled, even if the Court were to adopt her recommended casuistical approach, which is also highly unlikely.

REFERENCES:

Feldman, Stephen M. 1997. PLEASE DON'T WISH ME A MERRY CHRISTMAS: A CRITICAL HISTORY OF THE SEPARATION OF CHURCH AND STATE. New York: New York University Press.

Feldman, Stephen M. 2000. "A Christian America and the Separation of Church and State". In LAW AND RELIGION: A CRITICAL ANTHOLOGY, ed. Stephen M. Feldman. New York: New York University Press.

Mazur, Eric Michael. 1999. The Americanization of Religious Minorities: Confronting the Constitutional. Baltimore: Johns Hopkins University Press.

Sunstein, Cass R. 1999. ONE CASE AT A TIME: JUDICIAL MINIMALISM ON THE SUPREME COURT. Cambridge: Harvard University Press.

Williams, David C. & Williams, Susan H. 1991. "Volitionalism and Religious Liberty." CORNELL LAW REVIEW 76: 769.

CASE REFERENCES:

EMPLOYMENT DIVISION, DEPARTMENT OF HUMAN RESOURCES v. SMITH, 494 U.S. 872 (1990).

REYNOLDS v. UNITED STATES, 198 U.S. 145 (1878).

WISCONSIN v. YODER, 406 U.S. 205 (1972).

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Copyright 2001 by the author, Stephen M. Feldman.