Buffalo Law Review
When testimony about the religiosity of a victim is elicited, a jury will likely become aware of the religious affiliation of the victim. Any revelation to a jury of the religiosity of a victim can be an aid to the jury in assessing the punishment to be given to the defendant, since being religious and talking with people about religion is deemed a communal good. However, prescribing a harsher punishment to a defendant because of the religious affiliation of a victim is a form of religious discrimination which is unconstitutional. In light of this inherent difficulty of evidence of religion, it is unclear whether the legal system will resort to a formal neutrality which attempts to separate religion by categorically barring its admissibility.
Courts faced with unusual problems of law and religion typically resort to a formal neutrality and separation in part because they are unable to articulate any alternative approach. The legal system is unable to talk about religion any other way, and it is unlikely that this will change. Beginning such a change would require a reevaluation of liberty of conscience and the permissibility of “exercising” one’s faith in both a secular and religiously pluralistic society, but American society lacks an understanding which would provide it with the capability of acknowledging religion without immediately returning to religious discrimination. The longer American society lacks this ability to bridge the gap between the secular and the religious, the wider the chasm grows.
Michael S. Ariens, Evidence of Religion and the Religion of Evidence, 40 Buff. L. Rev. 65 (1992).