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Wednesday, February 22, 2012

Should Federal Judges Cite the Bible As Authority for Constitutional Decisions?

Rick Pildes

In a major campaign finance case decided two months ago by the Second Circuit, Judge Guido Calabresi began his concurring opinion by citing Luke 21:1-4 and including the following block quote:
As Jesus looked up, he saw the rich putting their gifts into the temple treasury. He also saw a poor widow put in two very small copper coins. “Truly I tell you,” he said, “this poor widow put in more than all the others. All these people gave their gifts out of their wealth; but she out of her poverty put in all she had to live on.”

Judge Calabresi used this epigram to launch into an opinion which argued that the Supreme Court should overrule Buckley v. Valeo and accept the "equalization" or "anti-distortion" rationale for permitting government to impose limits on how much candidates, individuals, political parties and others could spend on trying to get candidates elected.

I recall being struck at the time by this direct invocation and quotation of the Bible as a source of normative authority or inspiration for Judge Calabresi's legal analysis of the First Amendment issues. I expected to see a flurry of discussion and debate about the appropriateness of relying on the Bible in this way. But if there were any such discussion, I missed it. A good recent article on campaign-finance reform by Steven Rosenfeld, which quoted Judge Calabresi's quotation of the Bible, reminded me of this question.

Is it appropriate for judges to invoke the Bible in this way and quote from it in their decisions? If a "conservative" judge had similarly quoted from the Bible as support for a "conservative" decision on some constitutional issue, would the opinion have attracted more attention and discussion? Note that Judge Calabresi is not referencing a biblical passage for some descriptive purpose, such as to give an account on how a class on comparative religion, for example, was being taught in a public school. As I read his opinion, he is invoking the Bible as normative support for his position on how the First Amendment should be understood in the context of regulating election spending.

Comments:

The basic sentiment is not sectarian and an analog is probably found in most religions. It is a concurring opinion, stating his personal views. Also, opinions, particularly personal concurring or dissenting opinions, often cite works of literature. If Aesop's Fables were cited instead, would it be okay?

I think the problem is only when a judge uses opinions to promote clearly sectarian religious doctrine that has a feel of targeting other sects. Particularly in often quite personal concurring or dissenting opinions of this type, I don't think this sort of citation is overall problematic.
 

An originalist might consider especially the Framers' views - and perhaps those of the Ratifiers, although more problematic because of the numbers - on Jesus' sociology/philosophy regarding the rich and the poor. Was Jesus' thought in this epigram sort of a universal at the time, or perhaps since? Jesus' words are plain and easy to understand. These words have held up separate and apart from the Bible. These words reflect justice and fairness. Surely if Judge Calabresi's clerks had taken the time, similar thoughts prior and subsequent to Jesus's words could have been found. But is Judge Calabresi actually citing the Bible as authority or Jesus as a sociologist/philosopher on fairness and justice? Perhaps an originalist may be able to demonstrate that the Framers/Ratifiers cared diddly about fairness and justice, by pointing to slavery (about which I think Jesus had something to say).

I'm curious whether this question perhaps was in the back of Prof. Pildes' mind because of recent statements by GOP Presidential candidate Rick Santorum on the Bible. (I see a world of difference between Judge Calabresi's use of the Bible from that suggested by Santorum.)
 

The cite does use a familiar figure to make a point in a non-theocratic fashion. Shades of "Jefferson's Bible," perhaps.
 

To Joe: No, I was not thinking of anything any political candidate might have said. I had these thoughts when I read the decision in December; I was reminded of those thoughts only because of reading the article I cited on campaign finance.
 

I think the Bible, like foreign law, is okay if used only for its persuasive effect and not as any sort of binding authority.
 

Well, in this example it's innocuous and even helpful.

And I can think of some relevant passages that should be cited a whole bunch.

But of course it's also a slippery slope and an ugly history, c.f. McGann's decision in BSA v. Dale.

Oh look!
 

jpk's link to "look" made me look. Thanks, it was well worth the look.
 

You can almost guarantee a bad opinion will follow when a judge is quoting something other than the law he or she is supposed to be interpreting.

I would prefer if Judge Calabresi quoted the First Amendment rather than misquoting scripture to support censorship of political speech.
 

Even as a staunch atheist I don't really see the problem here; Calabresi was citing the Bible as classic literature to illustrate a principle, not relying on it as a source of natural law. This seems analogous to opening an opinion with a quote from Cicero or Aristotle or Dickens; not really problematic.
 

Our yodeler charges Judge Calabresi with "misquoting scripture," presumably the block quote in Gerard's post, without informing us of the correct quote. Maybe our yodeler meant "misapplying scripture."

I haven't read the Judge's concurring opinion so I do not know if he quoted the First Amendment. Perhaps our yodeler did read it and knows as a fact that the Judge did not quote the First Amendment.

Our yodeler seems to be suggesting that perhaps any reference whatsoever in a court opinion to the Bible is not proper. But I think Unknown in his comment makes a strong point to counter such a suggestion with:

"Calabresi was citing the Bible as classic literature to illustrate a principle, not relying on it as a source of natural law."
 

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