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What is the relationship between faith and justice? In particular, this Article will address the question of what a Justice of the United States Supreme Court should do, when her religious faith suggests that a case should be resolved in a way that is either inconsistent with the law or not justified by nonreligious, public reasons. May she rely on her religious beliefs to resolve a hard case? May she write an opinion that uses religious grounds to justify her decision?

In this Article, I will undertake to elaborate and defend a distinctively liberal position concerning faith and justice. My thesis is that respect for the diversity of faiths requires that judicial decisions not be made or justified on the basis of religious faith. Rather, judicial decisions should be made and justified by public reasons that could be accepted by individuals from a diversity of faiths or no faith at all.

Part I of this Article outlines some critical perspectives on the relationship between faith and justice. The liberal conception of constitutional order seems to rely on questionable assumptions about the nature of public and private, sameness and difference, and the right and the good. These assumptions have been subjected to a sustained examination from the perspectives of critical legal studies, feminist jurisprudence, and critical race theory. Part II seeks to develop a liberal theory of the relationship between faith and justice that is responsive to this critique. The liberal case for excluding religious faith or any other comprehensive conception of the good from the process of judging rests on the idea that political justification in general, and legal argumentation in particular, should attempt to forge and sustain an overlapping consensus on a public conception of justice. Part III applies this liberal conception of the relationship between faith and justice to issues raised by Catholics becoming Justices. Finally, Part IV presents my concluding thoughts on the relationship between faith and justice.

Publication Citation

39 DePaul L. Rev. 1083 (1989-1990)