                                    RECOMMENDED FOR FULL-TEXT PUBLICATION
                                         Pursuant to Sixth Circuit Rule 206
                                                 File Name: 05a0005p.06

                           UNITED STATES COURT OF APPEALS
                                            FOR THE SIXTH CIRCUIT
                                              _________________


                                                         X
                                  Petitioner-Appellee, -
 JAMES ARNETT,
                                                          -
                                                          -
                                                          -
                                                              No. 03-4375
         v.
                                                          ,
                                                           >
 WANZA JACKSON, Warden,                                   -
                                Respondent-Appellant. -
                                                         N
                         Appeal from the United States District Court
                        for the Southern District of Ohio at Cincinnati.
                      No. 01-00157—S. Arthur Spiegel, District Judge.
                                               Argued: August 3, 2004
                                       Decided and Filed: January 6, 2005
              Before: CLAY and GILMAN, Circuit Judges; MATIA, Chief District Judge.*
                                                 _________________
                                                       COUNSEL
ARGUED: Douglas R. Cole, OFFICE OF THE ATTORNEY GENERAL, Columbus, Ohio, for Appellant.
Charles H. Bartlett, Jr., Cincinnati, Ohio, for Appellee. ON BRIEF: Douglas R. Cole, Stuart A. Cole,
OFFICE OF THE ATTORNEY GENERAL, Columbus, Ohio, for Appellant. Charles H. Bartlett, Jr.,
Cincinnati, Ohio, for Appellee. Mark B. Greenlee, Shaker Heights, Ohio, for Amicus Curiae.
        MATIA, Chief D. J., delivered the opinion of the court, in which GILMAN, J., joined. CLAY, J.
(pp. 8-10), delivered a separate dissenting opinion.
                                                 _________________
                                                     OPINION
                                                 _________________
        PAUL R. MATIA, Chief District Judge. In 1997, Petitioner James Arnett entered guilty pleas in the
Common Pleas Court of Hamilton County, Ohio, on ten counts of rape and one count of pandering obscenity
involving a minor. He was sentenced to 51 years in prison. In announcing this sentence, the trial court
judge addressed the heinous nature of Arnett’s conduct and referenced a Biblical passage. Petitioner
appealed his sentence to the Ohio Court of Appeals and the Ohio Supreme Court on the basis that the trial
court violated his right to due process when it impermissibly considered its own religious beliefs during his
sentencing. After exhausting his remedies in the Ohio state courts, Arnett filed a petition for a writ of
habeas corpus in district court. The district court conditionally granted the petition, determining that

   *
    The Honorable Paul R. Matia, Chief United States District Judge for the Northern District of Ohio, sitting by designation.


                                                             1
No. 03-4375                 Arnett v. Jackson                                                                          Page 2


Arnett’s due process rights were violated when the trial court judge referenced the Bible during petitioner’s
sentencing hearing. For the reasons set forth below, we REVERSE the judgment of the district court and
REMAND the case with instructions to dismiss Arnett’s habeas petition.
I. BACKGROUND
        Between 1995 and 1997, James Arnett repeatedly engaged in the sexual abuse of the daughter of his
live-in girlfriend. During that time, Arnett repeatedly forced Rachel to provide him oral sex and admittedly
raped her. This abuse began when Rachel was only five years old. As a result of these actions, Arnett was
indicted in November 1997 on ten counts of rape of a minor under the age of thirteen, each with a sexually
violent predator specification, pursuant to OHIO REV. CODE § 2907.02(A)(1)(b). In January 1998, Arnett
was additionally indicted on one count of pandering obscenity involving a minor, a violation of OHIO REV.
CODE § 2907.321(A)(5).     Arnett entered guilty pleas to all the charges and was sentenced to a prison term
of 51 years.1
       During Arnett’s sentencing hearing, the trial court judge addressed defendant’s crime and referenced
the Bible. This monologue, which is the genesis of Arnett’s due process claim, reads in pertinent part:
                  Trial Court: So, Mr. Arnett, I was struck by the idea of who is James Arnett
                  through this particular case. And I thought about it all last evening as I was
                  trying to determine in my mind what type of sentence you deserve in this
                  particular case.
                                                          *****
                  Trial Court: I’m looking at the victim’s father, who tells me that basically his
                  daughter’s innocence was snatched away by you and you’re a thief. And,
                  yet, you have been molesting his little girl for the last four years. You’ve
                  been watching porno tapes with her, you’ve been taking pictures of her, and
                  you’ve been downloading information. And he asks me to give you a
                  sentence of 40 years, and he basically said that isn’t enough.
                                                          *****
                  Trial Court: But perhaps most telling of all the information is from the mouth
                  of Rachel herself to give me a pretty good picture. And I know from the
                  medical evidence that semen and pubic hair evidence was found, but it’s
                  Rachel’s description of the sexual contact that are most disturbing.
                                                          *****
                  Trial Court: And Dr. Bassman gives me a bit of a clue. In fact, he said some
                  thoughts that I’m thinking. He tells me that Rachel is wounded. And that’s
                  very clear from Rachel herself. And that she is suffering severe trauma. And
                  I’m wondering the same thing the doctor is wondering, how is it that Rachel
                  is going to have the ability to develop a healthy relationship, trust, express
                  love . . . [a]nd basically, Mr. Arnett, you robbed that child of that whole sense
                  of growing up and who she is.



    1
      Arnett was sentenced to 5 years imprisonment for each rape count, well within the 3-10 year sentencing range for each rape
count allowable under Ohio law, and an additional year of imprisonment on the pandering charge, a fourth-degree felony with
a potential sentence between 6-18 months.
No. 03-4375              Arnett v. Jackson                                                             Page 3


                                                  *****
               Trial Court: Recently, Mr. Arnett, I had a murder case of an individual who
               had no remorse and the sentence was 20 years, and I thought about that in
               regards to sentencing you. Because I was looking for a source, what do I turn
               to, to make, to make that determination, what sentence you should get. And
               I thought in regards to a 20-year sentence, that individual, that victim, who's
               the victim of that case, at least is gone to their reward, they're not hurting
               anymore. But for Rachel, the rest of her life, unless she takes care of herself,
               she's hurting.
                                                  *****
               Trial Court: And in looking at the final part of my struggle with you, I finally
               answered my question late at night when I turned to one additional source to
               help me. And basically, looking at Rachel on one hand, looking at the
               photographs of you happily as a child, and looking at the photographs of
               downloading that came from your computer, I agree they're very sad
               photographs, they're pure filth, it just tells me how ill you are.
                                                  *****
               Trial Court: And that passage where I had the opportunity to look is Matthew
               18:5, 6. “And whoso shall receive one such little child in my name, receiveth
               me. But, whoso shall offend one of these little ones which believe in me, it
               were better for him that a millstone were hanged about his neck, and he were
               drowned in the depth of the sea.”
                                                  *****
               Trial Court: Pandering obscenity count, one year. Ten counts of rape, five
               years on each, running consecutive. Sentence, 51 years.
(Sent. Tr., JA 644-49)
        Arnett appealed his sentence to the Ohio Court of Appeals, claiming that the trial court erred when
it impermissibly considered its own religious beliefs during sentencing. The state appellate court vacated
Arnett’s sentence, concluding that his due process rights were violated by virtue of the trial court “factoring
in religion” when imposing its sentence.
        Appellee filed a notice of appeal to the Ohio Supreme Court, which accepted jurisdiction and
unanimously reversed the judgment of the state appellate court. The Ohio Supreme Court, after noting the
lack of Supreme Court precedent with regard to this specific issue, unanimously concluded that the judge’s
Biblical reference did not violate Arnett’s right to due process because it was not the “basis” of the
sentencing determination, but rather “one of several reasons” or an “additional source” relied upon by the
trial court. See State v. Arnett, 724 N.E.2d 793, 803 (Ohio 2000).
         On March 15, 2001, Arnett filed a petition for writ of habeas corpus, under 28 U.S.C. § 2254, in
district court on the basis that the Ohio Supreme Court unreasonably applied clearly established Supreme
Court precedent prohibiting trial courts from using impermissible factors, such as religion, when sentencing
No. 03-4375                 Arnett v. Jackson                                                                           Page 4


a defendant.2 The district court referred the case to a magistrate judge and subsequently adopted the judge’s
report and recommendation, finding that the trial court’s use of the Bible as a “final source of authority”
constituted an impermissible factor for sentencing. Arnett’s habeas petition, therefore, was conditionally
granted on the finding of a denial of due process, and he was ordered to be released from prison unless
resentenced by the Hamilton County, Ohio Court of Common Pleas. Appellee’s timely appeal followed.
II. ANALYSIS
         A. Standard of Review of Habeas Petitions Under AEDPA
        Under the applicable standard of review set forth in the Antiterrorism and Effective Death Penalty
Act (AEDPA), codified at 28 U.S.C. § 2254(d), a petitioner is not entitled to relief in a federal habeas corpus
proceeding unless the state court’s adjudication of his or her due process claim resulted in a decision that
(1) was contrary to, or involved an unreasonable application of, clearly established federal law as
determined by the United States Supreme Court, or (2) was based on an unreasonable determination of the
facts in light of the evidence presented in the state court proceeding.
         A state court decision is “contrary to” federal law “if the state court arrives at a conclusion opposite
to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently
than [the Supreme] Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S.
362, 412-13 (2000). “Under the ‘unreasonable application’ clause, a federal habeas court may grant the writ
if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably
applies that principle to the facts of the prisoner's case.” Id. at 413. Furthermore, a federal court may not
issue a writ of habeas corpus under the “unreasonable application” clause of 28 U.S.C. § 2254(d) “simply
because that court concludes in its independent judgment that the relevant state-court decision applied
clearly established federal law erroneously or incorrectly. Rather, that application must also be
unreasonable.” Id. at 365; see also Price v. Vincent, 538 U.S. 634, 638-39 (2003).
       In this proceeding, the district court granted Arnett’s petition for habeas corpus under the first prong
of 28 U.S.C. § 2254(d), concluding that the Ohio Supreme Court’s determination that Arnett’s right to due
process was not violated was both “contrary to” and an “unreasonable application” of Supreme Court
precedent. We disagree.
         B. Clearly Established Supreme Court Precedent
        In order for this Court to affirm the district court, the prohibition against a trial court judge citing
religious text in a sentencing hearing must be “clearly established” by Supreme Court precedent. Mitchell
v. Esparza, 124 U.S. 7, 9 (2003). Although it is well established that “a fair trial in a fair tribunal is a basic
requirement of due process,” In re Murchison, 349 U.S. 133, 136 (1955), the Supreme Court has never
specifically decided whether a defendant’s right to due process is violated if a religious text or commentary
is cited during a sentencing hearing and/or considered by a trial court in reaching a sentencing
determination. Because the Supreme Court has never addressed this issue, we must decide whether the Ohio
Supreme Court unreasonably refused to extend a principle derived from the holdings of the Supreme Court
to a new context where it should apply. See Williams v. Taylor, 529 U.S. at 407 (holding that “a state-court
decision . . . involves an unreasonable application of [Supreme Court] precedent if the state court either
unreasonably extends a legal principle from our precedent to a new context where it should not apply or
unreasonably refuses to extend that principle to a new context where it should apply”); see id. at 409 (“[A]


    2
      Arnett’s application for a writ of habeas corpus claimed that the trial court judge violated two constitutional provisions
during the sentencing hearing: (1) the right to due process under the Fourteenth Amendment; and (2) the Establishment Clause
of the First Amendment. The district court, in adopting the report and recommendation of the magistrate judge, found petitioner’s
Establishment Clause claim to be procedurally defaulted since it was raised for the first time in the Ohio Supreme Court. The
Establishment Clause issue is not on appeal before this Court and will not be addressed.
No. 03-4375             Arnett v. Jackson                                                              Page 5


federal habeas court making the ‘unreasonable application’ inquiry should ask whether the state court’s
application of clearly established federal law was objectively unreasonable.”). Our review of the most
relevant Supreme Court decisions reveals that the Ohio Supreme Court’s conclusion that no constitutional
error occurred at Arnett’s sentencing hearing was not “objectively unreasonable.” Arnett’s writ of habeas
corpus, therefore, should not have been granted.
        The district court’s justification for granting Arnett’s habeas petition was largely grounded in
Townsend v. Burke, 334 U.S. 736 (1949), and United States v. Tucker, 404 U.S. 443 (1972), cases which
provide the general rule that a violation of due process exists when a sentencing judge relies upon
“erroneous information.” In Townsend, the Supreme Court held that a petitioner’s sentence did not satisfy
the due process “requirement of fair play” because the trial judge’s comments revealed that petitioner was
“sentenced on the basis of assumptions concerning his criminal record that were materially untrue.” 334
U.S. at 741. Similarly, the Court in Tucker granted the petitioner’s writ of habeas corpus on finding that
the sentencing court erroneously relied upon defendant’s three prior felony convictions, two of which were
constitutionally invalid, having been obtained in violation of right to counsel. 404 U.S. at 448 (“the real
question here is . . . whether the sentence . . . might have been different if the sentencing court [had not
relied on improper or erroneous information]”). In the present case, however, the district court did not rely
on “factually erroneous information” in sentencing Arnett.
         Consistent with these prior decisions, the Court in Zant v. Stephens, 462 U.S. 862, 885 (1983), stated
that a defendant’s right to due process of law is violated if he or she is sentenced to death based on “factors
that are constitutionally impermissible or totally irrelevant to the sentencing process, such as for example
the race, religion, or political affiliation of the defendant[.]” This general prohibition was declared by the
Court in its discussion of aggravating factors a jury may properly consider in the sentencing phase of a
capital case. In contrast, the trial judge in this proceeding did not base her sentence on an impermissible
factor, such as Arnett’s religion. Far from being a “totally irrelevant” consideration, the principle embedded
in the referenced Biblical passage (of not harming young children) is fully consistent with Ohio’s sentencing
consideration to the same effect. See Ohio Rev. Code § 2929.12(b)(1).
        Finally, in a case where the facts are most similar to those presently before us, the Fourth Circuit in
United States v. Bakker, 925 F.2d 740 (4th Cir. 1991), vacated a sentence after determining that the district
court judge’s “personal religious principles” were the “basis” of the sentencing decision. In Bakker, which
concerned the sentencing of a televangelist after convictions for mail and wire fraud, the district court judge
made the following statement on the record about the offender: “He had no thought whatever about his
victims and those of us that do have a religion are ridiculed as being saps from money-grubbing preachers
or priests.” Id. at 740. Upon review, the circuit court vacated the sentence, holding that courts “cannot
sanction sentencing procedures that create the perception of the bench as a pulpit from which judges
announce their personal sense of religiosity and simultaneously punish defendants for offending it.” Id. at
740.
         In Bakker, the Fourth Circuit emphasized that it was vacating the defendant’s sentence because the
trial judge’s comments, which referred to “those of us who do have a religion,” strongly suggested that the
judge’s “personal religious principles” had been a decisive factor in the court’s sentencing determination.
Id. at 740-41 (underlined emphasis added). The sentencing judge was plainly incensed that Bakker’s
conduct had caused the judge, and other pious people like him, to be “ridiculed as saps.” Id. at 740.
(vacating the defendant’s sentence because of the trial judge’s reliance on “his own religious characteristics”
and “his own sense of religiosity and victimization”) (emphases added). The Fourth Circuit did not hold,
however, that a judge’s reference to a religiously derived, community maxim would by itself compel a
defendant’s sentence to be vacated. Id. at 740 (acknowledging that a judge is not required “to surrender his
or her religious beliefs upon the assumption of judicial office”). To the contrary, the court found that “a
sentencing judge is the embodiment of public condemnation and social outrage” who may properly
“vindicate th[e] community’s interests in justice,” so long as “we are [not] left with the apprehension that
No. 03-4375             Arnett v. Jackson                                                              Page 6


the imposition of a lengthy prison term . . . may have reflected the fact that the court’s own sense of
religious propriety had somehow been betrayed.” Id. at 740-41.
        The dissenting opinion in the present case asserts that the sentencing judge relied on her “patently
religious beliefs,” thereby “suggesting that she was imposing the particular sentence because Arnett had
betrayed the word of God.” Dissenting Op. at 9 (suggesting also that the judge “imposed the particular
sentence on Arnett because the judge believed that God commanded it”). This speculation about the judge’s
motives, however, has no basis in the record. Far from demonstrating that the judge was motivated by her
“own sense of religiosity and victimization,” Bakker, 925 F.2d at 740, the sentencing transcript in fact
reveals that the judge made no reference whatsoever to her own religious beliefs in sentencing Arnett. She
instead focused her attention on the harm suffered by Arnett’s young victim.
        A different characterization of the sentencing judge’s comments, which is at least as plausible as that
offered by the dissenting opinion, is that the judge cited to the Biblical passage to underscore the contention
that our society has a long history of sternly punishing those people who hurt young children. Because the
record does not demonstrate that the judge’s personally held religious beliefs formed “the basis of [her]
sentencing decision,” we conclude that Arnett’s due process rights were not violated by the judge’s Biblical
reference at sentencing. Bakker, 925 F.2d at 741 (observing that although “a trial judge on occasion will
misspeak during sentencing . . . every ill-advised word will not be the basis for reversible error”).
        Under the AEDPA, this Court “may not look to lower federal court decisions in deciding whether
the state decision is contrary to, or an unreasonable application of, clearly established federal law.” Doan
v. Brigano, 237 F.3d 722, 729 (6th Cir. 2001)(quotation marks omitted). Lower federal court decisions,
however, may be considered “to determine whether a legal principle or right had been clearly established
by the Supreme Court” at the time of the Ohio Supreme Court’s decision in this case. Hill v. Hofbauer, 337
F.3d 706, 716 (6th Cir. 2003). Bakker cites only one Supreme Court decision on this issue, Gardner v.
Florida, 430 U.S. 349 (1977).
         In Gardner, the Supreme Court stated that “the sentencing process, as well as the trial itself, must
satisfy the requirements of the Due Process Clause.” Id. at 358. More specifically, Gardner holds that the
constitutional guarantees of due process prohibit a court from imposing the death penalty based in part on
information contained in a presentence report that is not disclosed to the defendant. Id. at 362. Nothing in
Gardner, however, established the legal principle that a trial judge’s comments made during a sentencing
regarding his or her personal religious beliefs violate a defendant’s right to due process. Bakker is therefore
not determinative of this Court’s inquiry concerning the instant case.
III. CONCLUSION
        There is nothing in the totality of the circumstances of Arnett’s sentencing to indicate that the trial
judge used the Bible as her “final source of authority,” as found by the district court. Moreover, the Biblical
principle of not harming children is fully consistent with Ohio’s sentencing consideration to the same effect.
If the trial judge had actually sentenced Arnett based upon a belief that God commanded that he be
“drowned in the depth of the sea,” we would expect the sentence imposed to be the maximum length
possible. In reality, he was sentenced in the lower half of the sentencing range allowable under Ohio law.
Under these circumstances, we do not share the dissenting opinion’s concern that upholding Arnett’s
sentence will encourage lawyers to “regularly cit[e] religious sources like the Bible, the Talmud, or the
Koran” and that the opinions of judges will “begin to resemble the fatwas of religious clerics.” Dissenting
Op. at 10.
       In addition to the Biblical reference, the judge referred to numerous factors - favorable and
unfavorable - that she took into account. And the judge specifically designated the Biblical passage as “one
additional source,” not her “final source.” If, indeed, the question of assigning “weight” to the judge’s
Biblical reference is “admittedly a close one,” as stated by the magistrate’s report and recommendation, then
No. 03-4375            Arnett v. Jackson                                                             Page 7


it can hardly be said that the decision of the unanimous Ohio Supreme Court was “objectively
unreasonable.” We reach this conclusion despite the fact that reasonable minds could certainly question the
propriety of the trial judge making mention of the Bible at all in her sentencing decision. Accordingly, the
judgment of the district court is REVERSED, and the case REMANDED with instructions to dismiss
Arnett's habeas petition.
No. 03-4375             Arnett v. Jackson                                                               Page 8


                                            _________________
                                                DISSENT
                                            _________________
        CLAY, Circuit Judge, dissenting. I dissent inasmuch as the Ohio Supreme Court identified the
correct governing legal principle from the United States Supreme Court’s decisions, but unreasonably
applied that principle to the facts of this case. See 28 U.S.C. § 2254(d)(1) (an application for writ of habeas
corpus shall not be granted on any claim adjudicated in state court unless the state court decision “was
contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by
the Supreme Court of the United States”); Williams v. Taylor, 529 U.S. 362, 413 (2000). The Ohio Supreme
Court’s decision also “was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). I would affirm the district court’s
decision granting James Arnett’s petition for a writ of habeas corpus for the limited purpose of resentencing
him in conformance with the Due Process Clause of the Fourteenth Amendment to the United States
Constitution.
        The Ohio Supreme Court correctly acknowledged that “[t]he United States Supreme Court has
recognized that even a sentence within the limits of a state’s sentencing laws may violate due process if the
sentencing proceedings are fundamentally unfair.” State v. Arnett, 724 N.E.2d 793, 801 (Ohio 2000) (citing
Gardner v. Florida, 430 U.S. 349 (1977); Townsend v. Burke, 334 U.S. 736 (1948)); see also United States
v. Bakker, 925 F.2d 728, 740 (4th Cir. 1991) (“Sentencing discretion … must be exercised within the
boundaries of due process.”) (citations omitted). Thus, the Supreme Court has observed that a sentencing
court may not base its decision on “factors that are constitutionally impermissible or totally irrelevant to the
sentencing process, such as for example the race, religion, or political affiliation of the defendant.” Zant
v. Stephens, 462 U.S. 862, 885 (1983).
        Before pronouncing Arnett’s sentence, the trial judge explained that, the previous evening, she had
been “trying to determine in [her] mind what type of sentence [Arnett] deserve[d] in this particular case.”
After detailing several different sources from which to make her decision (the physical and photographic
evidence, as well as submissions from the victim, the victim’s family, a psychologist, Arnett’s friends, and
employer), the judge explained to Arnett that she was still “looking for a source … to make that
determination, what sentence you should get.” She noted that the victim’s father had requested a sentence
of forty years, whereas another individual had requested that Arnett be sentenced only to a long term of
probation. The trial judge professed that she could not answer the question “what sentence?” based solely
on this information; that is, until she “answered [her] question late at night when [she] turned to one
additional source to help [her].” According to the judge, the source that answered her question was a
provision of the New Testament (Matthew 18:5, 6), which reads: “‘And whoso shall receive one such little
child in my name, receiveth me. But, whoso shall offend one of these little ones which believe in me, it
were better for him that a millstone were hanged about his neck, and that he were drowned in the depth of
the sea.’”
        The judge’s statements at sentencing undeniably show that this biblical tract played a significant,
determinative role in Arnett’s sentence. She explained that the biblical passage from Matthew, which
purports to be the word of God, enabled her to resolve “the final part of her struggle” to determine Arnett’s
sentence. Accordingly, the district court below correctly determined that the trial judge used the Bible as
her “final source of authority.”
       In Bakker, supra, the Fourth Circuit held that a sentencing judge had violated due process when
sentencing a television evangelist for fraud because, at sentencing, the judge had commented that the
defendant “had no thought whatever about his victims and those of us who do have a religion are ridiculed
as being saps from money-grabbing preachers or priests.” Bakker, 925 F.2d at 740 (emphasis in original).
The court held that the statement by the sentencing judge “reflected the fact that the court’s own sense of
No. 03-4375             Arnett v. Jackson                                                               Page 9


religious propriety had somehow been betrayed.” Bakker, 925 F.2d at 741. Arnett’s trial judge conveyed
the identical message when she linked her sentencing decision so directly with the Bible, suggesting that
she was imposing the particular sentence because Arnett had betrayed the word of God.
        Attempting to distinguish Bakker, where the sentencing judge explicitly referenced his religious
nature, the majority gives a crabbed reading of Arnett’s sentencing transcript and concludes that “the judge
made no reference whatsoever to her own religious beliefs in sentencing Arnett.” As a matter of common
sense, the judge would not have elaborated about her internal struggle to determine Arnett’s sentence and
explained that she found her answer in the Bible unless she believed that the Bible carries special
significance as a source of moral authority. Indeed, a prior statement by the judge strongly suggests that
her biblical quotation sprang from her personal sense of religiosity. Shortly before quoting the Bible, the
judge referred to a 20-year sentence that she had imposed in a murder case. The judge stated that she
believed the 20-year sentence was appropriate because the victim had “gone to their reward” and, therefore,
was not hurting any more. No great inferential leap is required to conclude that the judge felt comfortable
with a 20-year sentence because of her belief that the murder victim has an eternal soul that now resides in
an afterlife. These are patently religious beliefs. Thus, the judge’s subsequent biblical reference was a
natural extension of the religiosity she had betrayed earlier in the sentencing hearing. Moreover, the judge’s
above-quoted words utterly disprove the majority’s assertion that the dissent is “speculat[ing] about the
judge’s motives.” The record speaks for itself.
        The majority minimizes the judge’s biblical quotation as merely an attempt to underscore the
contention that “our society has a long history of sternly punishing those people who hurt young children.”
Similarly, the Ohio Supreme Court attempted to explain away the trial judge’s blatantly religion-based
decision by opining that “the text of the biblical verse that the judge cited … reflects the general proposition
that offenses against young victims are especially serious – a principle that the General Assembly explicitly
recognized in [OH. REV. CODE §] 2929.12(B)(1) [(requiring sentencing court to consider whether the injury
was exacerbated due to the victim’s age)].” Arnett, 724 N.E.2d at 803. Both conclusions are wrong.
         Certainly, society is especially concerned about crimes against children, but the means whereby the
trial judge purportedly made this point was by utilizing a source which has decision-making significance
only for that segment of “our society” who believe that the Bible’s words are divinely inspired. The judge’s
explicit reliance on the Bible conveyed the message that Arnett’s punishment was, at least in part, a
decisional by-product of religious beliefs that Arnett may not share. Further, section 2929.12(B)(1) of the
Ohio Revised Code is in no way a secular codification of Matthew 18:5, 6, as the Ohio Supreme Court
suggested. The biblical passage literally expresses concern over “little ones which believe in me” – i.e.,
children who believe in a particular God as set forth by a particular biblical source – and prescribes the
penalty for offending those children as death by drowning. By contrast, the Ohio Revised Code does not,
and could not, permit a sentencing court to consider the victim’s religious beliefs, nor does it or could it
prescribe a drowning death for Arnett’s crimes. Even if the biblical passage is interpreted less literally, as
simply prescribing harsh punishments for those who injure children, the fact remains that the judge’s heavy
reliance on the passage creates the appearance that the she imposed the particular sentence on Arnett
because the judge believed that God commanded it.
        Ultimately, the judge’s reliance, or lack thereof, on her personal religious beliefs is not critical to
the due process question in this case. In principle, there is nothing wrong with a judge indirectly drawing
upon her firmly-held religious beliefs for moral guidance in resolving a case for which the legal precedents
provide no clear answer (such as a criminal sentence in an indeterminate sentencing scheme), just as an a-
religious judge similarly might draw upon his or her firmly-held secular beliefs. Cf. Bakker, 925 F.2d at
740 (“Our Constitution, of course, does not require a person to surrender his or her religious beliefs upon
the assumption of judicial office.”). When, however, a judge directly and publicly relies on a religious
source to reach a specific legal result, she flouts a defendant’s fundamental expectation that he will not be
adjudged according to any religious tenets, regardless of whether the sentencing judge herself adheres to
those tenets.
No. 03-4375             Arnett v. Jackson                                                             Page 10


        If the Constitution sanctions such direct reliance on religious sources when imposing criminal
sentences, then there is nothing to stop prosecutors and criminal defense lawyers from regularly citing
religious sources like the Bible, the Talmud, or the Koran to justify their respective positions on punishment.
The judge would be placed in the position of not only considering statutory sentencing factors, but also
deciding which religious texts best justify a particular sentence. Under this approach, the judgments of trial
courts could begin to resemble the fatwas of religious clerics, and the opinions of appellate courts echo the
proclamations of the Sanhedrin. The result would be “sentencing procedures that create the perception of
the bench as a pulpit for which judges announce their personal sense of religiosity.” Id.
        Inevitably, judges would apply the same religious texts to reach different sentences, or rely on
different religious texts to justify different sentences, in cases with materially indistinguishable facts. The
Constitution, however, does not vest the judicial branch with the authority to resolve such conflicts. See
Serbian E. Orthodox Diocese for United States of Am. & Canada v. Milivojevich, 426 U.S. 696, 713 (1976)
(noting “the general rule that religious controversies are not the proper subject of civil court inquiry”);
Marbury v. Madison, 5 U.S. 137, 177 (1803) (“It is emphatically the province and duty of the judicial
department to say what the law is.”) (emphasis added). A judge’s assumption of such authority is not only
fundamentally unfair to defendants, who expect to be sentenced without regard to religious considerations,
but also erodes the “wall of separation between church and State.” Reynolds v. United States, 98 U.S. 145,
164 (1878).
        Finally, the fact that the trial judge sentenced Arnett to less than the statutory maximum for his
crimes in no way demonstrates that the judge’s reliance on the Bible did not prejudice him. It is possible
that the judge would have sentenced Arnett to a lesser term of years had she not been so heavily influenced
by a provision of the Bible that advocates death by drowning for those who “offend … little ones.” More
fundamentally, the Constitution entitled Arnett to a sentencing procedure free of religious influences. The
appropriate procedure when an unconstitutional factor contributed to a sentence that is within the statutory
sentencing range is not to conclude that the defendant is fortunate that he did not receive a harsher sentence,
but to vacate the sentence and order that the defendant be re-sentenced. Cf. United States v. Onwuemene,
933 F.2d 650, 652 (8th Cir. 1991) (vacating sentence that was within sentencing guidelines range and
remanding for new sentence after holding that the sentencing court had relied on an unconstitutional
consideration, the defendant’s national origin); see also United States v. Guidry, 199 F.3d 1150, 1161 (10th
Cir. 1999) (observing that a sentencing court’s refusal to grant a downward departure based on an unlawful
consideration, such as the defendant’s race, would require a remand for resentencing).
       For the foregoing reasons, I would hold that the Ohio Supreme Court unreasonably determined that
Arnett’s trial judge did not accord constitutionally significant weight to the biblical passage that she cited
as support for his sentence. I further would hold that the court unreasonably failed to hold that the trial
judge violated Arnett’s right to due process by explicitly and directly relying on a religious source to
determine his specific sentence. I would grant the habeas petition and direct the Ohio courts to impose a
sentence on Arnett (preferably by a different judge) that does not depend upon religious sources or
considerations.
