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The Distinctiveness of Religion in American Law
Rethinking Religion Clause Jurisprudence


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Part of Law and Christianity

  • Author: Kathleen A. Brady, Center for the Study of Law and Religion, Emory University
  • Date Published: July 2015
  • availability: Available
  • format: Hardback
  • isbn: 9781107016507

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About the Authors
  • 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.

    • Develops a new framework for religion clause decision making based on the historical context of founding as well as diverse religious and philosophical disciplines
    • Explains how a new framework would apply to noteworthy recent cases such as Burwell v. Hobby Lobby
    • Breaks new ground in the defense of religion's distinctiveness under the First Amendment
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    • Awarded Second Place in the Faithful Citizenship/Religious Freedom Category, 2016 Catholic Press Association Book Awards

    Reviews & endorsements

    '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

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    Product details

    • Date Published: July 2015
    • format: Hardback
    • isbn: 9781107016507
    • length: 354 pages
    • dimensions: 229 x 152 x 21 mm
    • weight: 0.64kg
    • availability: Available
  • Table of Contents

    Part I. The Distinctiveness of Religion:
    1. The development and limits of the equality paradigm
    2. The continuing power of the equality paradigm
    3. A unique relationship, a common foundation
    4. A new framework for religion clause jurisprudence
    Part II. The Believer and the State:
    5. Freedom of conscience today: rethinking free exercise exemptions
    6. Challenges to constructing a right of exemption that is feasible and fair
    7. Meeting the challenge: lessons from the first Congress
    8. New proposals for free exercise exemptions
    9. The role and limits of legislative and administrative accommodation
    10. Examining sincerity and defining religion
    Conclusion: secular moral commitments revisited.

  • Author

    Kathleen A. Brady, Center for the Study of Law and Religion, Emory University
    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.


    • Awarded Second Place in the Faithful Citizenship/Religious Freedom Category, 2016 Catholic Press Association Book Awards

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