Law, Ethics, and Religion in the Public Square: Principles of Restraint and Withdrawal

Abstract

In recent years, scholars have begun to recognize and discuss the profound questions that arise in attempting to determine the place of religion in the law and the legal profession. This discussion has emerged on at least two separate yet related levels. On one level, scholars have debated the place of religion in various segments of the public sphere, including law and politics. On a second level, lawyers have expressed the aim to place their professional values and obligations in the context of their overriding religious obligations. This article explores, from both an ethical and jurisprudential perspective, the question of how an individual might balance an interest in identifying and articulating the proper role of religion in the public square against the individual's own religious beliefs and commitments. There are several normative, practical, and tactical reasons why a religious adherent might choose not to rely directly on doctrinal religious principles in analyzing contemporary legal issues in the United States. While it is important to acknowledge that religious adherents may not always seem to invoke religious principles in matters of public debate, it is also important to recognize that the adherent's decision does not necessarily indicate that the adherent is any less committed to those principles than are others who refer to religion in advocating or selecting a legal position.