Masters of Illusion

The Supreme Court and the Religion Clauses

Frank S. Ravitch

• Publisher: NYU Press
• Year: 2007
• ISBN:
  9780814769171
• Topic: Droit
• Subtopic: Tribunaux

Many legal theorists and judges agree on one major premise in the field of law and religion: that religion clause jurisprudence is in a state of disarray and has been for some time. In Masters of Illusion, Frank S. Ravitch provocatively contends that both hard originalism (a strict focus on the intent of the Framers) and neutrality are illusory in religion clause jurisprudence, the former because it cannot live up to its promise for either side in the debate and the latter because it is simply impossible in the religion clause context. Yet these two principles have been used in almost every Supreme Court decision addressing religion clause questions.

Ravitch unpacks the various principles of religion clause interpretation, drawing on contemporary debates such as school prayer and displaying the Ten Commandments on courthouses, to demonstrate that the neutrality principle does not work in a pluralistic society. When defined by large, overarching principles of equality and liberty, neutrality fails to account for differences between groups and individuals. If, however, the Court drew on a variety of principles instead of a single notion of neutrality to decide whether or not laws facilitated or discouraged religious practices, the result could be a more equitable approach to religion clause cases.

1

Building on Shadows

Interpreting the religion clauses is not an easy task. Courts and commentators have used a variety of devices to interpret the religion clauses. Some rely on historical arguments, others rely on broad principles such as neutrality, liberty or equality, and some rely on both history and these broad principles. Yet battle lines remain even if the tactics have changed over time. Few people find the totality of the jurisprudence in this area to be satisfying; although many people like one or another decision or approach. When one sets out to interpret the religion clauses or, for that matter, to write a book about them, it is helpful to ask, “What is the goal of this endeavor?” Is it to find a unifying theme, answer a specific question, glean some specific or broader meaning? Otherwise, how does one interpret clauses with vague text, contested history, and conflicted precedent?

The goal of this book is to gain a better understanding of what has really been going on in court cases in this area and what this means for a society caught in the grip of a “culture war.”¹ Courts and commentators write of “neutrality” and the intent of the framers as though these things are capable of some sort of concrete definition.² As will be explained in later chapters, this is simply wrong. Concepts such as neutrality, liberty, and hostility are highly malleable, and they lend little more than rhetorical justifications for decisions based on other principles.³ This does not mean that commentators who rely on such principles have nothing valuable to contribute, but rather that those contributions must be useful in their own right, divorced from any metaphysical claim to neutrality or historical claim regarding the intent of the framers. In fact, as will be seen, the mark of a valuable concept in this area is whether it retains usefulness when divorced from its rhetorical baggage—that is, there may be some value in the concept of “substantive neutrality,” but not because it is actually neutral. The value lies elsewhere in the concept.

The discussion of neutrality will be mostly left to later chapters. This chapter will address the question of history and the intent of the framers, which has been tethered to every major principle the Court has used in the religion clause area. If the Court’s claims regarding the history of the religion clauses are weak, then the jurisprudence based on such claims is called into question. As will be seen, this argument cuts both ways. Neither separationists nor accommodationists will necessarily agree with this point, but even without strong historical arguments both sides have plenty of ammunition to play with. After the discussion of original intent in the religion clause context, this chapter will provide an overview of the various religion clause principles courts and commentators have used. It will also provide an overview of the interpretive framework proposed in later chapters. This book asserts that multiple narrow principles of interpretation that ebb and flow based on context may work better than the broad, and often illusory, principles the Court has traditionally used in interpreting the religion clauses.

A. The Battle of the Framers

Historical arguments have been used by courts and commentators since the beginning of modern Establishment Clause jurisprudence. Early cases such as Everson v. Bd. of Education⁴ and State of Illinois ex rel. McCollum v. Board of Ed.⁵ rely heavily on historical arguments. The same is true of the Court’s most recent cases.⁶ Much of this jurisprudence relies on one or another interpretation of the “intent of the framers” as gleaned from contemporary practices, statements, or writings.⁷ Some of the historical jurisprudence relies on the “traditions” of the nation.⁸ These arguments are sometimes linked,⁹ but they are in a sense different arguments. One is an originalist approach and the other an approach based on long-standing tradition reaching well beyond the time of the framers or even the framers of the Fourteenth Amendment through which the religion clauses have been incorporated. Later chapters will address the “tradition” approach, which, as will be seen, suffers from serious interpretive flaws. For now, it is most helpful to look at the originalist approaches to the Establishment Clause, which have been used far more often and by every side in the debate.

It is fair to say that concepts of originalism, or, as I will sometimes refer to them in this book, “the battle of the framers,” have driven much of religion clause jurisprudence. This is unfortunate because it is a debate that no one can really win. One should not interpret this to mean that historical analysis, or even some form of originalism, is irrelevant in understanding the religion clauses. Rather, those theories, whatever relevance they may have, cannot do the work they have been used to do by the Court and by many commentators. Interestingly, originalist approaches are useful in debunking other originalist approaches because presenting an alternative historical account with documentation can demonstrate at the very least that a given historical account is not the only one. The problem is that frequently when these alternative accounts are introduced to debunk another account, the justices or scholars introducing them assert that the alternative account is the correct one.¹⁰ In reality, however, it simply proves that there is an alternative account, which—and this is quite important—demonstrates only that neither account can prevail without further, and often unstated, presumptions influencing the choice.

Neither the separationist historical account nor the historical account advocated by those who wish to see greater interaction between religion and the public sphere tells the whole story. In fact, given the large number of framers and people involved in the ratification process, it is impossible to claim that any single account is “the intent of the framers” in a specific sense.¹¹ An interesting exercise in this regard is to read back-to-back Leonard Levy’s classic historical account of the framers’ views on the religion clauses¹² and Philip Hamburger’s historical account of the same.¹³ Then read Justice Rutledge’s concurring opinion in Everson and Justice Reed’s dissenting opinion in McCollum.¹⁴

We may be able to determine some broad intent of the framers, but this intent is so broad that by itself it cannot answer specific questions that the framers never thought about. It becomes a factor in the interpretive process, but not necessarily a determinative factor. Thus, we know that a number of framers were concerned at a broad level about religious divisiveness and about financial support of religion by the federal government.¹⁵ But can either of these broad concerns by itself, or the two concerns combined, answer the question of whether educational vouchers violate the Establishment Clause? Justices on all sides of these issues have relied on the intent of the framers. Some, such as Justices Scalia and Thomas, place an overt emphasis on originalism.¹⁶ Others, such as Justices Souter and Stevens, rely on originalist arguments, even though they have criticized stringent reliance on such arguments.¹⁷

What we frequently end up with is a battle of the framers. In this corner Justice Scalia’s framers and in this corner Justice Souter’s. … We get to watch bouts between James Madison and John Adams, and even between Thomas Jefferson and more recent figures such as Abraham Lincoln.¹⁸ Some bouts seem to be a case of internal struggle, such as James Madison versus James Madison.¹⁹ And the winner is … confusion, subterfuge, and frequently, to quote Justice Jackson, the justices’ own prepossessions.²⁰ Short of inventing a time machine and bringing a cadre of pollsters from Gallup back in time, it is unlikely that we will ever know what the framers intended about the wide array of specific issues confronting courts in the religion clause context, and while it is likely we can determine some broad intent, that intent only takes us so far in the analysis. Moreover, we filter our impressions of this intent through our own traditions and preconceptions in a way that may taint any application of such originalist data to current concerns.²¹

These criticisms of originalism in the religion clause context are aimed only at that context. The broader debates about the form and efficacy of originalism in constitutional interpretation are beyond the scope of this book. Still, given the problems with using originalism to answer specific questions in the religion clause context, it seems that relying on strict originalist approaches in this area is not terribly useful. You can choose the story that best suits your tastes (even if you do not realize you are doing so) and reason to a result. While this book avoids entering the broader debate over originalism, one concept from that debate is useful. It is the concept of “soft originalism” as proposed by Cass Sunstein.²² It is useful because it looks at the broad concepts that many of the framers—including those who disagreed on narrower questions—agreed upon.²³ It may not answer specific questions, but it can help answer them by being a factor in the interpretive process if evidence of such broader agreement is available.²⁴ I will contrast “soft originalism” with “hard originalism,”²⁵ which is the type most often used by courts in the religion clause context. Hard originalism looks for a more concrete and unified intent on a broader range of issues than soft originalism, and hard originalism may also use original intent to answer specific questions that arise today.²⁶

Ironically, the one area where hard originalist arguments might be realistic is the long-settled incorporation question. It does seem that the bulk of the original framers did not view the religion clauses as likely to become binding on the states at any future time.²⁷ Of course, this leaves the question of what the framers of the Fourteenth Amendment thought, and we might find ourselves back in the same conundrum.²⁸ Even if there were clear originalist evidence against incorporation (especially incorporation of the Establishment Clause), incorporation may still be justified on other grounds.²⁹ It simply begs a different question: whether originalism is the best interpretive device even where there is some clear evidence of specific original intent. Given the long history of incorporation and the useful constraint on interpretation provided by stare decisis, I would argue in this context that hard originalism is not the best interpretive device.³⁰ In fact, hard originalism may conflict with soft originalism as the narrower views of certain framers come into contact with the many changes to religious pluralism and to the nation over the last two centuries. Moreover, as H. Jefferson Powell has argued, there may be originalist arguments against using originalism—that is, the framers never expected their intent to govern future and potentially unforeseen constitutional questions.³¹ This would make hard originalism an anachronism, but it might support—or at least not conflict with—soft originalism.

The bottom line when it comes to using historical arguments to support religion clause doctrine is that the historical arguments are a justification for decisions influenced by other factors, as the realists used to say.³² Justices Scalia and Thomas have cast originalism as a sort of interpretive panacea in these cases.³³ If only we followed the framers’ intent, we would have a clear answer to many questions that arise under the religion clauses. Of course, if the framers did not share any single set of assumptions, these arguments do not do what they claim—that is, they do not provide any “objective” concrete interpretive framework.³⁴ The various packages of framers’ intent just sit on the shelf until a justice chooses which one(s) to use and uses it. Of course, in making the choice of which intent to use, the justice must be relying on something other than the history, and we are back to square one.³⁵ Justice Scalia’s originalism in the religion clause context does not limit activism any more than Justice Stevens’s originalism does. The question that needs answering is not which historical account is accurate, but rather what are the underlying bases for choosing a given historical account, and do any of these bases help obtain a better understanding and interpretation of the religion clauses regardless of the historical accounts?

More than forty years ago, Justice Brennan captured some of these concerns in his concurring opinion in Abington Township v. Schempp.³⁶ Addressing historical analysis of Bible reading and prayer at the beginning of the school day, Justice Brennan wrote of the futility of using hard originalism and the potential for using soft originalism:

A too literal quest for the advice of the Founding Fathers upon the issues of these cases seems to me futile and misdirected for several reasons: First, on our precise problem the historical record is at best ...