Document Type
Article
Publication Date
2004
Abstract
Without a religious justification in the law, judges cannot fully justify their decisions in hard cases from within the law. The law must be indeterminate because the Establishment Clause proscribes this full 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. Given 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.
Recommended Citation
53 Cath. U. L. Rev. 709 (2004).