Diana Ginn & David Blaikie (Dalhousie U. Schulich School of Law) has posted Judges and Religious-Based Reasoning. The abstract follows.
Is it ever acceptable for a judge in a secular liberal democracy to rely on, and explicitly refer to, religious-based reasoning in reaching a decision? While it is unlikely that many Canadian judges will be seized with the desire to include religious-based reasoning in their judgments, we raise this issue because it allows us to examine the appropriate role of religious-based discourse in a challenging context, where arguments about unconstitutionality are strongest. In a previous article, we concluded that there are no ethical impediments to citizens using such discourse in discussing public affairs. We argued that it is no less virtuous (although it may sometimes be less persuasive) to reason from one’s religious convictions than from any other comprehensive set of values, when advocating for or against public policy alternatives. We would suggest that this is generally also the case for elected representatives. Thus, in our view, it would be perfectly acceptable for a member of a legislature to buttress a call for increased funding for social services by reference to Proverbs 19:17: “One who is gracious to a poor man lends to the Lord.” However, it is unconstitutional for a legislature to pass legislation for a religious purpose; therefore, legislators must recognize the distinction between advocating legislation designed to achieve a religious purpose and using religious arguments to support or oppose legislation designed to achieve a public purpose.