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46 Cleveland State Law Review 643 (1998)


Although many authors have debated the propriety of the use of religious arguments in public policy discussions and lawmaking, few have critically reviewed the jurisprudence of particular judges through the lens of their own faith-traditions. Preliminarily, this article attempts a modest contribution to the discussion about the use of religious argument in public discussions by suggesting that judicial opinions should be viewed rhetorically and that religious assumptions and claims may legitimately be "borrowed" analogically into such opinions, at least their forensic and epideictic elements. More concretely, it analyzes themes in some of Justice William Rehnquist's opinions to determine how consistent they are with traditional Lutheran theological understandings of law and the state. The article argues that Rehnquist's strict constructionism, state sovereignism, and positivism are inconsistent with the paradoxical quality of mainstream Lutheran theological claims about human life and institutions on such matters as who is trustworthy (the individual or the state), limitations on human institutions and the relationship of conscientious citizens to the state, and the responsibility for the neighbor.