This Article analyzes whether criminal religious fundamentalists should escape culpability for their wrongdoing under the insanity defense. Made especially salient by Muslim jihadists and Christian abortion clinic bombers, this issue touches on a range of topics, including legal philosophy, free exercise and religious accommodations, mental health and the evidentiary utility of neuroscience, and equality concerns touching on racial and ethnic, gender, and sexual minorities. Above all, this issue touches on an underappreciated tension between two pillars of American law: freedom of religion celebrating the idea that people need never account for their reasons for acceding to faith, and a law of responsibility ubiquitously scrutinizing people’s exact reasons for action. It is this tension that most challenges existing doctrinal and scholarly frameworks for the insanity defense, which ultimately fail to justify any distinction between delusion and dogma. Seeking to resolve this tension, this Article argues that reconceptualizing the “cognition of wrongdoing” prong of this defense not only dispatches faith-as-insanity, but also creates a more universally coherent insanity defense framework, resolving the gaps left by existing interpretations in reconciling even less novel phenomena, like psychosis and psychopathy. This prong should place less emphasis on the direct outcomes of a person’s thought processes (e.g., the reasons for a person’s actions), and instead place greater emphasis on the thought process itself—particularly whether a person has a demonstrated capacity to engage with counterarguments. This capacity should be most determinative of a person’s cognition, regardless of whether someone might sincerely believe that his actions are moral—and even, in the many cases where fundamentalists appropriate secular arguments, fully legal. Ultimately, focusing on this capacity for alternative reasoning not only resolves the underappreciated tension between freedom of religious belief and the law of responsibility, but also illuminates the concept of religious accommodations in general.
- © 2014 by the Regents of the University of California.