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“FREE EXERCISE” AND THE INCARNATIONAL NATURE OF THE CATHOLIC FAITH1 Phillip J. Brown, S.S., JD, JCD* I. Introduction. The First Amendment to the United States Constitution provides that “Congress shall make no law . . . prohibiting the free exercise” of religion . Until the Civil War, this prohibition, along with the prohibition against any law respecting an “establishment” of religion (the first part of the Amendment), applied only to the federal government, not to the states. It is true that at least until the 1820’s some states did have established churches. However, the Civil War Amendments adopted after the Civil War made it clear that at least some of the provisions of the Bill of Rights apply to state governments as well as the federal government; and it is now clear beyond dispute that the First Amendment provisions concerning religion apply to the states as well as the federal government. Thus, there is unquestionably a general right of religious freedom under the United States Constitution. And just as clearly, the states are bound by the same prohibition against the “establishment” of religion as the federal government. The rights enumerated in the Bill of Rights have generally been understood as those of individual citizens that the government may not encroach upon. When it comes to religion, however, for most of the citizens of the Untied States religion is a communitarian affair, being practiced in corporate bodies or entities constituted and identified. Likewise, for most citizens who have a religion, the religion they adhere to is readily recognizable as one of those faiths that people have been a part of over the long course of history: Christianity, and more particularly one of its identifiable manifestations, generally referred to as “churches;” Judaism; Buddhism ; Mormonism; etc. If individual citizens in the United States have a constitutional right that the government will in no way prohibit the “free exercise” of their religion, and most existing religions can only be understood in relation to their own defined doctrines and practices, it is not possible to speak of “freedom of religion” without considering as The Jurist 68 (2008) 223–251 223 * School of Canon Law, Catholic University of America 1 This article is based on a lecture given at the School of Canon Law of the Catholic University of America on April 2, 2005. 224 the jurist well the “freedom of religions” to be what they consider themselves to be, without encroachment or interference by the government. This poses a dilemma for the government, of course, for how then is the government to prevent anyone from claiming anything whatsoever to be a “religion,” and any practices whatsoever as being a part of that “religion,” protected by the FirstAmendment? While that may be a problem for constitutional scholars and judges who must rule on such questions, it is not really much of a problem for well-established religions and their adherents, who can justly claim protection under the First Amendment for their well-established doctrines, beliefs, and practices. This article concerns a central doctrine of one of those religions, the Roman Catholic Church. The doctrine in question is the Incarnation and its implications with regard to the possession, ownership, administration, and alienation of the Church‘s material possessions. The article asks further what the implications of this doctrine may be with respect to the promises made by the First Amendment. The Catholic Church may be unique in the extent to which it understands the doctrine of the Incarnation as informing questions about its material presence in this world, and the place of material things in “exercising ” the Catholic faith. It is the further thesis of this article, however, that if the First Amendment means anything at all, it must mean that the law will have to take into consideration particular religions and their particular , even unique, doctrines, beliefs, and practices in ascertaining what exactly is protected by the First Amendment. And if this is true, the Catholic Church ought to be able to claim protection for its property rights consonant with its understanding of the implications of the doctrine of the Incarnation for its possession, ownership, administration, and alienation of material things. We will begin with a consideration of...


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