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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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Societal Boundaries, Paranoia and Ill Humor, and the Role of the Courts Under the Free Exercise Clause

Societal Boundaries, Paranoia and Ill Humor, and the Role of the Courts Under the Free Exercise Clause

Chapter:
(p.109) 5 Societal Boundaries, Paranoia and Ill Humor, and the Role of the Courts Under the Free Exercise Clause
Source:
Regulating Religion
Author(s):

Catharine Cookson

Publisher:
Oxford University Press
DOI:10.1093/019512944X.003.0006

Unusual societal flux and social stress causes fear, and a fearful, paranoid society is tempted greatly to take extreme measures to protect itself. Pressured politicians may be unable or unwilling to enact reasonably narrow and limited legislation designed to address the actual harm, and, indeed, not only may cast a wide net but also limit if not disregard individual protections under the Constitution. While the courts may be tempted (if not politically pressured) to give a conclusive presumption deferring to the legislature, this chapter argues that it is the duty of the courts, especially in times of moral panic or societal “ill humors” (Alexander Hamilton's phrase), to protect the individual's right to the free exercise of religion by a searching scrutiny of the context of each case. The courts must be exceptionally careful to understand both the religious framework within which the religiously compelled behavior is situated and the actual, paradigmatic harm anticipated by the statute.

Keywords:   context, deference to legislature, free exercise of religion, moral panic, paradigmatic harm, paranoia, religious framework, searching scrutiny, societal boundaries

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