Let’s Be Honest About Religion and the Courts
As Amy Coney Barrett wrote herself, religious convictions are real and influential on judges.
As Amy Coney Barrett was hurriedly advanced to the highest court in America, the notion that her religion might influence judicial decisions became almost completely taboo, tantamount to anti-religious bigotry. Judges look to the law, not to God. Their holy texts have no bearing on their interpretation of legal texts. How dare anyone suggest otherwise?
Yet this absurd position runs against everything we know about human psychology and the role of religion, or lack of it, in people’s lives. Pretending that influence doesn’t exist distorts our understanding of the courts by substituting fantasy for reality. Just as financial incentives can create conflicts of interest that influence scientific conclusions and legal findings, religious ideology can do the same. In fact, it demeans religious belief to think there’s no connection. Individual faith arguably exerts at least as much influence on their decision-making as the promise of financial rewards.
But don’t take it from me—take it from Amy Coney Barrett herself. In 1998, she co-authored an article for the Marquette Law Review that acknowledged the difficulty of deciding death penalty cases for Catholic judges and argued that they should consider recusing themselves. “We believe that Catholic judges (if they are faithful to the teaching of their church) are morally precluded from enforcing the death penalty,” she wrote. In a footnote, she suggests that abortion presents a more clear cut case for recusal, approvingly quoting another legal scholar: “Where there is no honest, legitimate alternative for deciding the case but to follow positive law supporting the right to commit an abortion […] the judge should recuse himself.”
There’s plenty of empirical evidence for this intuitive view. In a review of judicial decisions on religious liberty cases, scholars found that the “single most prominent, salient, and consistent influence on judicial decision making was”…wait for it…“religion—religion in terms of affiliation of the claimant, the background of the judge, and the demographics of the community.”
Another more general review found religious beliefs—Evangelical Protestant, mainstream Protestant, Jew, Catholic—were clearly a factor in decisions related to the death penalty, gender discrimination, and obscenity, even after controlling for other variables like party affiliation.
Those who see hidden anti-religious bigotry in pushing this connection are mistaken. After all, there is no such thing as “religion” or even “Christianity” writ large, which is why Catholicism and Judaism and Evangelical Protestantism exert different kinds of influence depending on the judicial decision. Nor does the issue of how religion influences judicial decisions break along party lines. A climate change skeptic could—with justification—point to Pope Francis’s enthusiasm for protecting the environment and wonder about its influence on a Catholic judge.
In their journal article, Coney Barrett and her co-author wisely observe that not all Catholics are the same. Some may see themselves as capable of enforcing a law even if it means breaking Church prohibitions on executing criminals or—to use phrasing reflective of certain beliefs—murdering an unborn child. Others may not, for the obvious reason that believing your decision will lead to infanticide would understandably lead to a crisis of conscience.
Moreover, it’s not religion alone that exerts this influence—at least if religion is narrowly defined. Americans should abandon their myopic focus on the influence of religion per se, an amorphous category that fails to adequately describe the deeply held beliefs of many secular people. In its place should be what the political philosopher John Rawls referred to as a “comprehensive doctrine.” Everyone has a comprehensive doctrine, a set of beliefs about everything from the existence of souls to the importance of certain virtues. And everyone has potential conflicts of conscience that stem from their comprehensive doctrine, even materialist atheists.
That non-religious beliefs can have the same lived significance and power as religious beliefs is amply evident when, for instance, the linguist John McWhorter refers to anti-racism as a “new religion” or the New York Times’ Ross Douthat talks about the “orthodoxy” of the progressive left. They’re right: It really doesn’t make sense to distinguish between traditionally religious beliefs and beliefs that are profoundly felt and existentially important. An atheist’s “non-religious” belief that fetuses don’t have souls is likely to influence their decision making on abortion. Saying so isn’t anti-atheist bigotry, for the same reason that claiming Coney Barrett’s belief in fetuses’ souls might affect her rulings on abortion isn’t anti-religious bigotry.
To assuage the faithful’s concern on this score, we should abandon discussions of how religion affects judicial decisions and shift to the effects of people’s “deeply held metaphysical beliefs” more generally. Such beliefs inescapably shape our behavior in all aspects of life, and judicial decisions are no exception. The separation of metaphysics and State may be an honorable political ideal, but it is an impossibility for actual humans.
Americans must be able to have tough, honest conversations about this. We should be able to ask openly how people’s “dogma,” religious or otherwise, might influence their approach to cases—and when they should choose to step back from a decision as a result. Instead, legal analysts pretend to believe in mythical “unbiased” judges whose personal positions on the existence (or non-existence) of Heaven, souls and divinely revealed truths have, remarkably, no bearing whatsoever on the decisions they make. Even those who oppose Barrett can be thankful that she is under no such illusion.