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Oliver Wendell Holmes’ famous 1897 treatise on morality and law has stood as a benchmark for more than a century. But last week, New York Court of Appeals Judge Howard A. Levine suggested the legal icon did not get it quite right. At the Interreligious Prayer Breakfast of the Albany County Bar Association last Wednesday, Levine said religion, faith and morality can and should play a significant role in jurisprudence and the development of law. And he said it is entirely possible for a judge to bring faith-based principles to the bench without intruding on the Establishment Clause. “A deeply religious judge, perhaps more than any other, respects that moral duty to enforce the Establishment Clause, having taken an oath to God to support and defend the Constitution,” Levine told an audience at the Crowne Plaza Hotel in downtown Albany. In his 1897 essay, “The Path of the Law,” Holmes attacked legal formalism, which viewed the law as a litany of rules cloaked in moral principles, and advocated the total separation of law and morality. Instead, he advocated a “morality-free, instrumental view of law” that has reigned at law schools for at least a quarter century, Levine said. That view, he added, is at the root of much of the cynicism directed toward the profession and ignores the “debt our legal tradition owes to religion,” dating back to the Old Testament prophets. “Today, despite the uncontroverted evidence of the Judeo-Christian religious heritage of our legal tradition we find almost no trace at all of religious concepts in our legal culture,” Levine said. The judge said the most difficult cases, those involving fundamental rights, cannot be decided without some resort to morality-based values, and urged the judiciary to recognize and embrace those values — not ignore and shun them. “When judges are told that their task is deciding cases consistent with social advantage and the good of society, they must first determine the morality-laden question of what is good for society, and what does constitute the good society,” Levine said. “The unavoidable task of judges in deciding the hardest and most important cases is to discover and explain how our best and most enduring common values as a people apply for a principled resolution of the case and then articulating a rule that will be persuasive as furthering those values.” As a jurist, Levine has addressed law and religion on a number of occasions, most significantly in a dissent he wrote while serving on the Appellate Division and in a majority opinion authored after he joined the Court of Appeals. In 1993, then-Justice Levine of the 3rd Department wrote the dissenting opinion in Grumet v. Board of Education, 81 NY2d 518, where the panel declared unconstitutional a law that established a special public school district for the handicapped Hasidic children of Kiryas Joel. The prevailing opinion was upheld by the Court of Appeals and, ultimately, the U.S. Supreme Court. Levine also addressed Establishment Clause issues in 1996 when, as a Court of Appeals judge, he wrote the majority opinion that said state prison officials violated the First Amendment rights of an atheist inmate who was required to take part in a sobriety program based on the religious model of Alcoholics Anonymous. “There is no firmer or more settled principle of Establishment Clause jurisprudence than that of prohibiting the use of the state’s power to force one to profess a religious belief or participate in a religious activity,” Levine wrote in Griffin v. Coughlin, 88 NY2d 674. Still, the judge said yesterday, there is clearly a place for faith and morals in the law.

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