Reenchanting the Law: The Religious Dimension of Judicial Decision Making

Abstract

Reenchanting the Law addresses the issue of the role of religious beliefs in judicial decision making in hard cases such as those involving abortion, euthanasia, and homosexuality under the Due Process Clause of the Fourteenth Amendment. Contrary to the current consensus that judicial decision making is independent of judges' religious convictions, I argue that a full justification of the extra-legal norms judges rely on in hard cases requires judges to rely on religious convictions. Religious convictions are the most comprehensive normative convictions that humans hold, and all humans who act with reflective self-understanding (even if they don't believe in God) are religious. At the same time, I maintain that the Establishment Clause prohibits the text of the law from including a religious justification. This does not mean that the Establishment Clause prohibits judges from fully justifying their decisions during their deliberations about hard cases. It only prohibits judges from including that full justification in their written opinions. Deliberation and explanation are separate stages of judicial decision making that should be kept distinct. Based on this distinction, my thesis is that judges should fully justify their decisions in hard cases by relying on their religious or comprehensive convictions in their deliberation (religionist deliberation) but that judges' religious convictions should only implicitly inform the legal explanation of their decision in their written opinions (separationist explanation). I refer to this as the religionist-separationist model of judicial decision making which maintains that religious convictions are the silent prologue to any full justification of the law. Given religious diversity of the United States, the religionist-separationist model recognizes that a legitimate plurality of religious convictions may implicitly inform and shape the law which results in a reenchantment of the law.

Keywords: Judicial decisionmaking, law and religion, Rawls, Habermas, Greenawalt, Perry, Establishment Clause