Exemplars or Exceptions: Imagining Constitutional Courts in a Religiously Diverse Society

Despite being similarly concerned with the legitimacy of law under conditions of diversity, political and legal theorists currently seem to differ significantly in the role they would reserve for religious reasons in public decision-making processes. Religious arguments that would generally be considered inappropriate if not inadmissible in a courtroom are increasingly viewed as acceptable and even desirable contributions to debate in the political public sphere. The author argues that the existence of this disconnect can be explained by the special challenges that religion poses for constitutional adjudication which in turn should inform our understanding of the judicial decision-making function. Constraints inherent to constitutional courts that make them effective institutions for concrete dispute resolution significantly limit their ability to engage seriously with the normative challenges posed by religious diversity. We should thus properly understand the role of constitutional adjudication as peripheral in matters of public policy that intersect with questions of religious difference.