One of the fears of modern Christians especially (and others) seems to be the coercive legal power of so-called “activist judges who are hellbent on making questionable laws and by upholding precedents from other jurisdictions that are inimical to public morality and societal health”.
I find aspects of such contentions persuasive but not logically compelling, maybe because I lack vital bits of information to properly arbitrate the claims.
I must say though, that from my six (6) years of experience working in the Resident Magistrate’s Courts ages ago as a legally untrained clerk who served occasionally as Registrar in the local Circuit Court (I think that was the term way back in the late 1960s) I have seen (pardonable?) blunders by Judges. Two outstanding cases come to mind but I share only one now.
In this case it was crystal clear that the jury (which included a friend of mine) rendered a verdict which was so out of sync with the evidence adduced that the trial Judge not only rejected the verdict but banished the jury for life from ever serving as jurors! Bear in mind that the jurors are the judges of facts and the Judge is the judge of the law, something not quite on all fours with legal practice happened there.
I recalled musing to myself “Rahtid, so the one judge punished the other judges.” An excessive action on the trial Judge’s part maybe, but there was no malice aforethought. So, judges, being human, can blunder.
It’s a different kettle of fish (ok weird expression I know) when a Judge’s worldview bias slips out in his ruling as is the case in an appeal case related by my American intellectual father Professor John Warwick Montgomery (lawyer/theologian/philosopher).
The case? McFarlane v Relate Avon Ltd  EWCA Civ. B1 on appeal from the employment Appeal Tribunal. “Gary McFarlane, a relationships counselor in Bristol, with strong evangelical Christian beliefs, had refused to provide sexual counseling to homosexual couples, as a result he was dismissed by the Relate Avon organization, whose position was upheld by the Employment Tribunal. Lord Justice Laws denied McFarlane’s subsequent application to have his case heard by the Court of Appeal. The Lord Justice gave his ratio as follows: ‘[I]n the eye of everyone save the believer religious faith is necessarily subjective, being incommunicable by any kind of proof or evidence…The promulgation of law for the protection of a position held purely on religious grounds cannot therefore be justified. It is irrational, as preferring the subjective over the objective. (paras. 23-24)” (‘Religious “Irrationality” and Civil Liberties’ in his magisterial Christ as Centre and Circumference: Essays Theological, Cultural and Polemic, 2012, 565-566)
The Lord Justice was chided in the press and some threw barbs at him as a ‘legal activist’. Montgomery however took a different tack and opined: “But the especially interesting aspect of the Laws’ decision is that, whilst agreeing entirely with Professor Vickers’ view that religion is essentially subjective, and therefore unprovable and irrational, the Lord Justice concludes that, instead of particularly deserving the protection of the law, religious claims must not be upheld legally against the [non-religious] views of others. In other words from the premise of religious irrationality, Vickers and Laws draw precisely opposite conclusions!”
Professor Lucy Vickers, a Law Professor and specialist on religious discrimination in the workplace had argued, at a conference a month before the ruling by Laws, that “the fundamental ground for legally protecting religious belief and practice is the essential irrationality of religious positions: since their truth cannot, unlike scientific views, be demonstrated, they need the protection of the law even more than do other ideas. ” (Montgomery, 565).No judge, like none of us, comes to any issue with a blank [worldview] slate and the dilemma for judges especially, is how to navigate the murky, turbulent waters of defensibly guaranteeing civil liberties for all, in a modern pluralistic society.