Abstract

http://ssrn.com/abstract=901836
 


 



The Religious Dimension of Judicial Decision Making and Facto Diestablishment


Mark C. Modak-Truran


Mississippi College - School of Law


Marquette Law Review, Vol. 81, p. 255, 1997

Abstract:     
The central question addressed by this article is: What, if any, is the role of religious beliefs in judicial decision making? To begin answering this question, I will provide a broad overview of a more complete argument supporting the thesis that judicial deliberation necessarily relies on a comprehensive or religious conviction about authentic human existence in hard cases but that the establishment clause of the first amendment requires that these comprehensive claims remain implicit in judicial opinions. In order to support this abridged argument, I propose a formal definition of religion as a comprehensive claim or conviction about human authenticity and assume that the law is indeterminate (in some moderate sense) such that there are hard cases where the apparently relevant statutes, common law principles, contracts, or constitutional provisions at issue do not clearly resolve disputes. Given this understanding of law and religion, I then chart the logically possible models for the relationship between law and religion in judicial decision making in hard cases. Before setting forth my position, I consider and point out problems with the de facto disestablishment model that maintains that both the deliberative process and the process of justification in judicial decision making should be independent of comprehensive or religious convictions. John Rawls's understanding of the Supreme Court as the exemplar of public reason is used to represent the de facto disestablishment model. Finally, I illustrate my position by briefly examining the Supreme Court opinion and en banc Ninth Circuit opinion in Washington v. Glucksberg, 117 S. Ct. 2258 (1997), where the judicial reliance on comprehensive or religious claims about authentic human existence readily breaks to the surface.

Number of Pages in PDF File: 36

Accepted Paper Series


Download This Paper

Date posted: May 17, 2006  

Suggested Citation

Modak-Truran, Mark C., The Religious Dimension of Judicial Decision Making and Facto Diestablishment. Marquette Law Review, Vol. 81, p. 255, 1997. Available at SSRN: http://ssrn.com/abstract=901836

Contact Information

Mark C. Modak-Truran (Contact Author)
Mississippi College - School of Law ( email )
151 East Griffith Street
Jackson, MS 39201
United States
601-925-7159 (Phone)
HOME PAGE: http://www.law.mc.edu/faculty/profile_modak_truran.htm
Feedback to SSRN


Paper statistics
Abstract Views: 797
Downloads: 95
Download Rank: 156,547

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo3 in 1.219 seconds