Masters of Illusion: The Supreme Court and the Religion Clauses

Masters of Illusion: The Supreme Court and the Religion Clauses

Masters of Illusion: The Supreme Court and the Religion Clauses

Masters of Illusion: The Supreme Court and the Religion Clauses

Synopsis

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.

Excerpt

Law and religion scholarship relating to the First Amendment is broad and diverse. There are many wonderful and brilliant people engaged in this field, and as one might expect given the broad array of issues and concerns that arise under the religion clauses, there is a great deal of disagreement over any number of issues. It is remarkable, however, that so many divergent theorists and judges agree on one major premise. That premise is that religion clause jurisprudence is in a state of disarray and has been for some time. Most attribute this state of affairs to courts basing decisions on the wrong principles, using the wrong—or too many— legal tests, or favoring one side or the other in the debate.

My reason for writing this book is that I believe much of this disarray is a function of the interpretive presumptions and methodologies used by the courts in religion clause cases. Particularly, I will argue that both hard originalism and neutrality are illusory in the religion clause context, the first because it cannot live up to its promise for either side in the debate and the second 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. This book is an attempt to look underneath these devices to find the other bases that may be driving the Court and commentators. Some of these bases such as liberty, equality, separation, and accommodation are openly discussed by courts and commentators, while others lie underneath the surface. Yet even the surface principles are generally justified based on the illusion of neutrality or arguments for determinate original intent.

My hope is to engage in a descriptive analysis of the various principles of religion clause interpretation and determine which ones are merely illusion and which ones actually add something of substance to the debate. The principles that add something will function as modes of religion clause interpretation that ebb and flow based on context. My assertion is simple: the use of various narrow principles that ebb and flow based on context will lead to more consistency and more interpretive transparency than reliance on broad but illusory principles. I realize that some may . . .

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.