The Concealmeant of Religious Values in Judicial Decisionmaking

Essay — Volume 91, Issue 2

91 Va. L. Rev. 515
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Religious beliefs and values can play a significant and potentially necessary role in the judicial disposition of cases, particularly those in which the positive law is meaningfully underdeterminate. With some exceptions, however, the permissible role of such beliefs and values in various stages of the judicial process is not often appropriately addressed within public and even academic circles. To the contrary, the issue tends by most commentators to be either largely overlooked, perhaps due to its delicacy or complexity, or categorically disposed of pursuant to a debatable theory of public discourse or a distinctive reading of the Constitution’s religion clauses. The central thesis of this Essay is that the relationship between judging and religious influences, as a result of these and other circumstances, is one defined substantially by concealment, much of it unconscious, rather than by truly principled and effective regulation. The Essay’s purposes, accordingly, are to develop this thesis more fully; to examine its chief consequences, especially for the legitimacy of judicial decisionmaking; and, to the extent that these consequences are unfavorable, to suggest some modest corrective measures.

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  Volume 91 / Issue 2  

Revitalizing the Forgotten Uniformity Constraint on the Commerce Power

By Thomas B. Colby
91 Va. L. Rev. 249

What is Textualism?

By Caleb Nelson
91 Va. L. Rev. 347

Textualism and Legislative Intent

By John F. Manning
91 Va. L. Rev. 419

A Response to Professor Manning

By Caleb Nelson
91 Va. L. Rev. 451