| Unlike academic disciplines such as economics, history, moral and political philosophy, and sociology, religion is usually not considered as a useful resource for understanding the law but as a special kind of problem for it. This assumption informs the current consensus that judges should decide all cases independently of their religious convictions. John Rawls and Jürgen Habermas propose “separationist” models of judicial decision making that represent this consensus. By contrast, Kent Greenawalt and Michael Perry offer religionist-separationist models of judicial decision making. They argue that religious convictions can sometimes inform judicial deliberation but that these religious convictions should not be written into judicial decisions. I demonstrate, however, that all four of these models are incoherent and require an establishment of religion in violation of the Establishment Clause of the First Amendment.; I propose an alternative religionist-separationist model of judicial decision making that provides a coherent account of judicial decision making. The central question this model addresses is: What, if anything, is the role of religious convictions in judicial decision making? In answering this question, I assume both that the law is indeterminate so that there are hard cases where the relevant legal norms do not resolve disputes and that the process of judicial decision making includes two stages: deliberation and explanation. Given that judicial decision making involves both deliberation and explanation, my heretical thesis is that religious convictions are the silent prologue to any full justification of judges' decisions in hard cases. Judges should fully justify their decisions in hard cases by relying on religious convictions in their deliberations to justify all the extra-legal norms they rely on and the choice among them (religionist deliberation). Judicial opinions, however, should not include this full justification (separationist explanation) because the Establishment Clause prohibits judges from writing their religious convictions into the law. The law must remain indeterminate. Consequently, the Establishment Clause provides a normative justification for legal indeterminacy. Rather than presenting an unfortunate feature of the legal system, legal indeterminacy facilitates both religious liberty and the reenchantment of the law. |
