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The 'Religious Questions' Doctrine: Addressing (Secular) Judicial Incompetence

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journal contribution
posted on 24.07.2022, 07:24 authored by Alex Deagon

  

The religious questions doctrine states that courts typically refuse to adjudicate on religious questions. The two common rationales are a lack of judicial competence to decide religious questions (the pragmatic rationale), and the danger that allowing a secular court to decide religious questions enables state endorsement of one religion over another (the principled rationale). However, the rise of litigation involving religious questions means a rigid adherence to the doctrine is no longer tenable. This article focuses on addressing the pragmatic rationale, which has some implications for addressing the principled rationale. While the use of expert evidence on the religious question can mitigate judicial incompetence, this can itself give rise to two further problems: meta-expertise and secular translation. These problems can be addressed through a framework with two aspects. The first is application of the golden rule, which entails an objective and fair assessment of the evidence by the court. The second is the development of an imaginative sympathy with the internal religious perspective. Addressing the pragmatic rationale in this way also points to resolution of the principled rationale, because objective and fair judicial consideration, including genuine engagement with the religious perspective, would diminish apparent state endorsement of particular religions. 

History

Publication Date

2021

Volume

47

Issue

1

Type

Journal Article

Pages

60–87

AGLC Citation

Alex Deagon, 'The "Religious Questions" Doctrine: Addressing (Secular) Judicial Incompetence' (2021) 47(1) Monash University Law Review 60