Taking Judges’ Religion Seriously: Some Reflections Based on U.S. and Italian Cases

Adelaide Madera is an Associate Professor of Canon Law and Law and Religion, Department of Law, University of Messina

In a 1952 landmark decision, delivering the opinion of the U.S. Supreme Court, Justice Douglas asserted: “We are a religious people whose institutions presuppose a Supreme Being.” This and other cases, where a U.S. judge refers to religious arguments while shaping a judicial decision, raise a question about the relationship between religion and the judiciary.

It goes without saying that in a democratic and pluralist state judges are not allowed to rely on their religious tenets to “resolve legal disputes.” However, some commentators argue the “inevitability of subjectivity,” namely, the unavoidability of judges who are not able (even unintentionally) to leave their religious, moral, political views at the threshold of the courtroom. Psychological literature also demonstrates the connection between “religiosity (the quality of being religious) and personal values” which affect subconscious processes underlying judicial reasoning. Besides, some scholars refer to various reasons why religious values may be of some help in judicial decision-making, specifically in deciding “ethically difficult cases,” such as the death penalty, where, as Guido Calabresi shows, judges may face the “tragic choice” between  one’s conscience and the rule of law.

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