Searching for the Soul of Judicial Decisionmaking: An Empirical Study of Religious Freedom Decisions
Gregory C. Sisk
University of St. Thomas School of Law (Minnesota)
Cornell Law School
Andrew P. Morriss
Texas A&M School of Law; PERC - Property and Environment Research Center; George Mason University - Mercatus Center
Ohio State Law Journal, Vol. 65, No. 3, 2004
Cornell Legal Studies Research Paper No. 04-015
Case Legal Studies Research Paper No. 04-17
During the past half century, constitutional theories of religious freedom have been in a state of great controversy, perpetual transformation, and consequent uncertainty. Given the vitality of religious faith for most Americans and the vigor of the enduring debate on the proper role of religious belief and practice in public society, a searching exploration of the influences upon judges in making decisions that uphold or reject claims implicating religious freedom is long overdue. Many thoughtful contributions have been to the debate about whether judges should allow their religious beliefs to surface in the exercise of their judicial role. Yet much less has been written about whether judges' religious convictions do affect judicial decrees, that is, whether religious beliefs influence court decisions, consciously or unconsciously. In this comprehensive empirical study of federal circuit and district judges deciding religious freedom cases, the vitality of religious variables to a more complete understanding of judicial decisionmaking is abundantly clear. Indeed, the single most prominent, salient, and consistent influence on judicial decisionmaking was religion - religion in terms of affiliation of the claimant, the background of the judge, and the demographics of the community, independent of other background and political variables commonly used in empirical tests of judicial behavior. Thus, in light of the findings of this study, when searching for the soul of judicial decisionmaking in the legal or political sense, we must not neglect the presence and influence upon the judicial process of matters that affect the soul in the theological sense.
Number of Pages in PDF File: 125
Keywords: Constitution, religion, judges, judicial decisionamking, empiricalAccepted Paper Series
Date posted: January 16, 2004
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