Quoting Religious Texts in US Courts is Unethical

The practice is antithetical to the fair administration of law

An earlier version of this article appeared in Deconstructing Christianity.

An illustrated page from the Book of Judges in a German Bible, dated 1485 (Bodleian Library — CC BY 4.0)

Introduction

As America suffers under one of the most corrupt Supreme Courts in the modern era, an equally pernicious judicial practice garners little attention — using biblical passages as elements of legal reasoning. The practice is not new, but in a time when increasing numbers of people are abandoning the archaic, discriminatory tenets of religious zealotry it should no longer be tolerated.

Aside from the repugnant disregard for American secularism enshrined in the Constitution that this habit shows, deferring to religious texts as a basis of legal reasoning is no different intellectually from citing the works of Homer or Herodotus. None of these texts provide concise or conclusive information useful for interpreting current law. They do not say anything pertinent that informs policy, be it from a legal or moral standpoint. On the latter, the Bible, especially, contains numerous passages that contradict present day norms.

Quoting or otherwise relying on biblical passages as a means to support a legal argument reveals only that the judge wishes to impose a moralistic ruling, irrespective of any legislative or common law foundation for it. Rule number 1.2 of the Model Code of Judicial Conduct states:

A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.

Litigants cannot conclude that the court treated them with impartiality or integrity if to support its reasoning it relies on ancient fables. Whether Christians or disciples of other religions may take umbrage with this characterization is irrelevant.

‘Neutral’ arbitration with fables

The very foundation of the American legal system—and many others—is built upon the notion of neutral arbitration, symbolized by the blindfolded statue of lady justice. It requires that each party know the rules. Those rules are set forth in the relevant statutes, and the expected interpretation of those statutes follows a realistic, logical, and consistent approach, relying on precedent where relevant.

Lady Justice is depicted almost universally across the globe. Here is a statue of her that stands outside of the Court of Final Appeal, Hong Kong. Source: ChvhLR10 - CC BY-SA 3.0.

Christianity, like all religions, comprises a canon of belief exposited in fantastical stories. To the legal system, it can be nothing more. The literal acceptance of certain foundational dogmatic stories, particularly but not exclusively in Christianity, necessitates ignoring scientific, logical, and rational understanding. It is in this way that some people still hold the view that a man named Noah more than two millennia ago stuffed tens of thousands of animals into a (small) wooden boat and lived with and kept them alive for more than a month during an epic, global flood.

To avoid the preposterousness evident in accepting biblical stories as renditions of actual events, some will claim that they comprise mere allegories. If so, this represents an equally insurmountable problem for law because allegorical interpretation provokes nearly unlimited subjectivity. By their very nature, fables cannot contribute to adjudication because they operate by no consistent set of parameters to inform either legal or lexical interpretation.

No matter who or how many people adopt one faith system or another is likewise immaterial in a secular system. That a large number of people share Christian beliefs indicates no higher legitimacy than Scientology’s or Raëlism’s worship of aliens when it comes to the interpretation or application of law.

Relatedly, if society accepts the quotation of passages from the Bible as relevant and permissible, then it cannot complain when judges of different religious lineages do the same. Would it make sense for a single judge to nullify any marriage in his jurisdiction that occurred in April on the grounds that the Mishefa Re prohibits it? Obviously not, but then how does that differ from a judge who intones that “all human beings bear God’s image from the moment of conception” to decide that embryos derived from In vitro fertilization (IVF) thereby constitute children as a matter of law?

Hypocritical arbitrariness

Sanja Zgonjanin outlined the many ways biblical references appear in judicial opinions, concluding:

The use of religious references in judicial decision-making is not rare and cannot be underestimated. The numerous ways in which the Bible finds its way into judicial opinions are a direct result of judges’ willingness to disregard the rules of judicial conduct and apparent constitutional violations stemming from such misuse.

Zgonjanin explained that the practice is so abhorrent because of its obviously capricious application, exhibited by judges’ tendency to cherry pick the language used.

On one hand, judges invoke the Bible as serious support for their propositions, and, on the other, their use of the Bible is trivialized.

This violates the bedrock of juridical purpose to apply the law evenly, blindly, and consistently.

A serial offender of the practice of distorting law through employing biblical passages was the disgraced Alabama judge Roy Moore. For reference, Moore had been removed from the bench twice, both instances related to abusing his position predicated on his extreme religious views. He ran for United States Senate twice and lost both times, partly for his extremism and partly because numerous women accused him of sexually abusing them as minors.

Anyway, in Ex parte HH, a parental custody case, Moore commenced his opinion with this statement:

I write specially to state that the homosexual conduct of a parent — conduct involving a sexual relationship between two persons of the same gender — creates a strong presumption of unfitness that alone is sufficient justification for denying that parent custody of his or her own children or prohibiting the adoption of the children of others.

To ensure no one questioned from where he came to this conclusion, he added later:

Homosexual conduct is, and has been, considered abhorrent, immoral, detestable, a crime against nature, and a violation of the laws of nature and of nature’s God upon which this Nation and our laws are predicated.

For Moore, the fact that the mother in the case at bar was in a relationship with another woman was more egregious than the father’s conduct, which the father himself described:

The father further testified that he slapped the daughter after she said, “I swear on the holy f* * * * *g bible,” and that most of the whippings with the belt occurred before the divorce. The father also claims that, although he did kick the daughter’s boom box, he did not kick it “across the room.” The father testified at the hearing that he used many different disciplinary measures, including “timeouts,” requiring permission before using appliances, and having the sons sit with paper bags on their heads (without restricting their air). [Emphasis added].

The frequency with which biblical passages and irrelevant stories emerged in this case is rather jaw-dropping. To avoid nauseating the reader much further, here is just one more passage from the case:

Natural law is the law of nature and of nature’s God as understood by men through reason, but aided by direct revelation found in the Holy Scriptures:

“The doctrines thus delivered we call the revealed or divine law, and they are to be found only in the Holy Scriptures. These precepts, when revealed, are found upon comparison to be really a part of the original law of nature, as they tend in all their consequences to man’s felicity.”

That Moore found the physical abuse of children by their father less morally despicable than the consensual relationship choice of the mother stinks of hypocrisy given his alleged penchant for chasing adolescent girls.

His own purported villainy notwithstanding, it exhibits the ridiculous outcomes that result from applying biblical passages to the findings of law. Moore viewed an unharmful type of alleged blasphemy as more dangerous to children than a father who admitted “whipping” them with belts. From this, he applied the law to that effect. He spent nearly his entire opinion blasting homosexuality instead of excoriating the father’s violent behavior against the children, behavior to which the father openly confessed!

Explaining the foundation of law

As noted above, courts that rely on religious verses render the integrity of their decisions highly questionable, or worse. It seems especially spurious, then, to use such passages to explain what any sensible person already knows, and the law already addresses.

In United States v. Brennan, for example, a federal district court in New York for some reason found the need to explain the “seriousness” of the crime of bribe receiving by a judge by quoting Deuteronomy. Later, it restated the biblical maxim in more worldly terms, which thus rendered the Deuteronomy quotation as superfluous: “All agree that it is intolerable to condone bribes of judges in a democracy such as ours.” Clearly, the Bible reference was not needed.

Zgonjanin traced numerous other cases where this has occurred, targeted toward a diversity of legal principles. Courts insist on doing this in spite of the plentitude of sources explicating the historical legal framework for contemporary concepts. Why, for instance, did the Supreme Court in Calero-Toledo v. Pearson Yacht Leasing Co. decide to justify in rem forfeiture by pontificating on the legal ramifications of when an ox gores a person, as described in Exodus 21:28?

As Caleb Nelson noted:

Long before the American Revolution, both the English Parliament and legislatures in the American colonies were using the threat of forfeiture to encourage compliance with statutes.

Surely, the Court could have identified any one of these far more relevant historical pathways to describe the legal predicate for the current statutory concept. But no, for reasons unknown the majority deemed it better to invoke mythical stories of mischievous animals written over a thousand years ago to expound upon the seizure of a yacht involved in drug activities in the mid-1970s.

Conclusion

The list of reasons why it is wrong to cite biblical texts on matters of law is long. Anyone who would object to this assertion must honestly answer whether they would feel equally comfortable should a judge rely on a different tome. After all, it has been argued that the Qu’ran’s depiction of law represents the sovereign will of God:

The Sharī‘a is then the moral code, an earthly, sociologically contextualized representation of His moral will, the first and final concern. The rest is detail, including the technical body of the law and any form of worldly political rule. The Sharī‘a, the temporal and spatial expression of God’s Law and Will, precedes any and all such rule both logically and in time.

By what metric of legitimacy can one proclaim that biblical overtures deserve greater applicability in modern courts than Qu’ranic ones? Of course, those inclined to proffer an answer to that question frequently advance the vapid — and wrong — argument that the United States is a “Christian nation.” Unfortunately, until that viewpoint is summarily and finally disposed of, the public and scholars will continue these pointless, circular discussions while the courts quietly persist in their Aesopian perversions that cost real people their freedom or well-being.

The Bible’s Matthew 6:24 states:

No man can serve two masters: for either he will hate the one, and love the other; or else he will hold to the one, and despise the other.

If (certain) courts are to live in accordance with their own tendencies, then they need to answer to this, one of their beloved verses. Per Matthew, judges can either uphold statutory law, or the law of God. But they cannot do both. To do the former is to be a neutral arbiter of the law of the secular republic that is the United States. To do the latter, one should join the priesthood. To attempt to do both is an impeachable offense.

Further reading:

Here is the citation for Sanja Zgonjanin’s full article, which I highly recommend reading:

Zgonjanin, Sanja. “Quoting the Bible: The Use of Religious References in Judicial Decision-Making,” City University of New York Law Review. Vol. 9, Iss. 1 (Winter 2005).

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Robert Vanwey is the co-director of the Dharma Farm School of Translation and Philosophy. He is also the executive director of the EALS Global Foundation.

Prior to that he was the Senior Technical Analyst for the New York State Division of Criminal Justice, where he specialized in investigating public corruption, and technology and financial crime. He also has a Juris Doctor and Master degree in history.