Masters of Illusion: The Supreme Court and the Religion Clauses, by Frank S. Ravitch (New York: New York University Press 2007, ISBN 978-0-8147-7585-1) 241 pp. Cloth $45.00.
Even those who have read dozens of books on the meaning of the religion clauses of the First Amendment have probably never encountered a sentence such as this: “I reject the notion that religious autonomy is possible in relevant constitutional contexts due to the nature of human beings—our dasein, or being in the world.” Dasein, for those of you who have been spared the questionable pleasure of wading through Being and Time, was a concept invented by German existentialist Martin Heidegger and adopted by later practitioners of continental philosophy. Frank Ravitch, a professor at Michigan State University College of Law, believes that legal analysis can profit from some of the methodologies embraced by continental philosophers. Mercifully, he focuses on the philosophical hermeneutics of Hans-Georg Gadamer, who is no match for Heidegger in obscurity. Moreover—and somewhat surprisingly—Ravitch is actually successful in using hermeneutics to criticize some of the widely accepted principles of First Amendment interpretation and to advance our understanding of constitutional jurisprudence. Make no mistake about it: Masters of Illusion: The Supreme Court and the Religion Clauses can be tough going at times. Unless you’re a lawyer, a philosopher, or someone with a keen interest in church-state relations, this book may not be for you. However, those who are willing to struggle with its occasionally dense prose will find that Ravitch offers an interesting perspective.
Consistent with Gadamer’s hermeneutics, one of Ravitch’s key contentions is that there is no “one right answer” in First Amendment interpretation. Instead, there are a range of potentially “correct” answers. Ravitch has no patience with those who believe (or pretend to believe—hence the title) that we can base constitutional interpretation on the original intent of the Founders. As Ravitch points out, there were hundreds of individuals who had a role in drafting the Constitution and the Bill of Rights and in debating and ratifying these documents. The notions that these individuals shared any single set of viewpoints about the appropriate relationship between church and state, and that they envisaged all the different ways church and state might interact in our times, are pure fantasy. Even if we focus only on individuals such as Jefferson and Madison, favorites of those who believe in strict separation, they were not always consistent. More important, they did not have occasion to consider some of the issues that confront us today. In the early days of our country, Nativity scenes were unheard of, the federal government funded few charities—it could hardly fund itself—and public schools were rare. Moreover, the Bill of Rights, including the First Amendment, did not apply to the states. The actions of state governments were not controlled by the First Amendment until the 1940s. So we cannot honestly maintain that Jefferson thought the establishment clause prohibited organized prayer in public schools—nor can anyone honestly maintain that he thought the establishment clause permitted such prayers. He was never presented with this issue.
Of course, the fact that the Framers did not have to confront the same specific issues that occupy our attention today does not mean we cannot make reasonable inferences about some of their concerns. Ravitch distinguishes between “hard originalism” and “soft originalism.” The former is the view, rejected by Ravitch, that the Founders speak with one clear voice about such specific issues as whether the First Amendment allows a monument to the Ten Commandments near a courthouse or whether a display of the crèche on public property is permissible provided there is also a menorah, Santa Claus, and a few candy canes. “Soft originalism” is the notion that we can look to broad concerns on which there was wide agreement among almost all the Framers. Some of these concerns were the religious influence on government, the union of government and religion being used to suppress the freedom of conscience of religious minorities, and the divisiveness caused by government support for a particular religion or religion in general. Ravitch argues these broad concerns can provide pragmatic guidance even though they will not necessarily dictate a particular result in any given First Amendment dispute.
Just as Ravitch rejects hard originalism, he also rejects the concept of “neutrality.” Ravitch argues that the notion that the government should be neutral between religion and nonreligion is essentially worthless as a means of resolving disputes, because how neutrality is defined depends on one’s perspective. A creationist might argue that if the government is truly neutral, it should allow both creationism and evolution to be taught in the schools. It is certainly true that the concept of neutrality has been hijacked in this way by some conservative members of the Supreme Court. Instead of being used as a means of keeping government separated from religion, neutrality supposedly permits support of religious institutions, such as funding of religious charities, as long as similar funding is available to nonreligious organizations that provide the same services. According to Ravitch, neutrality turns out to be “nothing more than a variable social construction.”
I will say more about Ravitch’s critique of neutrality, but first let me describe the test that he believes should be used to determine whether government action violates the establishment clause. Ravitch labels his proposed test the “facilitation test.” Government action that substantially facilitates or discourages religion violates the establishment clause. Ravitch’s facilitation test generally yields results that supporters of strict church-state separation would favor, including results contrary to some notorious Supreme Court cases of recent years. For example, under the facilitation test, the actions of private individuals may not be sufficient to make indirect government support of religion permissible. In Zelman v. Simmons-Harris, 536 U.S. 639 (2002), the Court upheld a tuition assistance plan under which tuition aid was provided to Cleveland families, who could then use that money to send their children to private schools, including religious schools. The Court majority concluded that any resulting financial support of religious institutions could not be attributed to the government because the families decided where to spend the money. However, Ravitch points out that the vast majority of schools that benefited from this plan were religious schools, so state-funded tuition inevitably meant the state was funding instruction in religious subjects. Moreover, parents did not really have a true choice, because the overwhelming majority of the religious schools were Catholic. Reviewing the tuition assistance plan in its actual context demonstrates that the government was substantially facilitating Catholicism.
Ravitch is absolutely correct in insisting that we look at the actual effects of a particular government action to determine whether there is a violation of the First Amendment. But the time-honored test devised by the Court in Lemon v. Kurtzman, 403 U.S. 602 (1971) already instructs us to look at government action in deciding whether its effects are unconstitutional. It’s not so much that the Court has been using the wrong test. It’s simply that the Court is currently misapplying the Lemon test.
Something similar can be said about Ravitch’s critique of the concept of neutrality as a means of resolving First Amendment disputes. Ravitch is correct to assert that in the abstract, “neutrality” is essentially worthless as a guide. But if we interpret neutrality against the background of the broad concerns of the Framers—what Ravitch calls “soft originalism”—then neutrality does have an identifiable content. Government must be neutral between religion and nonreligion in a way that minimizes religious influence on government and the use of government to further religious doctrines. Thus, the creationist cannot plausibly argue that public schools should teach creationism on grounds of fairness or neutrality.
At the end of the day, the results of First Amendment disputes are not determined by what test is used but by who is applying the test. Even Ravitch’s facilitation test could be manipulated by religion-intoxicated jurists such as Antonin Scalia and Clarence Thomas. The “masters of illusion” will continue to dominate constitutional interpretation as long as we have judges and justices who regard the Enlightenment—the intellectual framework that shaped the vision of our nation’s Founders—as something to be regretted rather than cherished.