L. Joe Dunman, University of Louisville School of Law, is publishing Testing Religious Insanity in volume 70 of the Wayne Law Review (2025). Here is the abstract.
An insane defendant is excused from conviction and punishment if, at the time they committed a criminal act, they suffered from a mental illness that made it impossible to tell right from wrong. To prove their insanity, defendants often produce psychiatric evidence that they suffer from "delusions," which are fixed, false beliefs resistant to contrary facts. Thus, to determine whether a defendant is insane, a court must determine whether they are delusional, and to do that, the court must determine whether their beliefs are false. "Deific decrees" and other delusions with religious themes create a constitutional problem. The First Amendment prohibits tests of religious verity; courts may not decide the truth or falsity of any matter of faith. However, courts have no reliable, objective way to distinguish "religion," which is protected by the First Amendment, from "delusion," which is not. Neither existing legal doctrine nor psychiatric diagnoses are enough. Courts thus must conduct a de facto religious verity test: the defendant is insane if they are delusional, and they are delusional if their religious beliefs are false. This article offers new perspectives on religious insanity excuses. First, it orients the First Amendment right against religious verity tests as an adversarial criminal defense right, like the right to counsel or the right to a jury. It then shows why legal doctrine and psychiatric diagnoses fail to distinguish protected religion from unprotected delusion. Courts, unable to draw clear lines, unavoidably subject defendants who suffer religious delusions to de facto verity tests. Finally, the article proposes waiver as a compromise to protect religious rights while shielding the insane from conviction. Just as defendants may waive other adversarial rights, defendants who claim religious delusions should waive their right against religious verity tests before their insanity excuse may proceed.
Download the article from SSRN at the link.
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