The Religious Dimension of Judicial Decision Making and Facto Diestablishment

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