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'Masters of Illusion: The United States Supreme Court and the Religion Clauses'

Presented by: Professor Frank S. Ravitch (College of Law, Michigan State University)
Wednesday, 19 August 2009

Abstract:

Interpretation of the religion clauses of the First Amendment to the United State Constitution has changed dramatically over the years. The United States Supreme Court has relied heavily on the concepts of "Original Intent" and "Neutrality", yet Justices and
commentators have used these concepts in varying ways; ways that often contradict each other. Claims of neutrality can not be proven. There is no independent neutral truth or baseline to which they can be tethered. Moreover, using the intent of the Framers to interpret the religion clauses only makes sense if that intent is at least somewhat clear. The very existence of diametrically opposed, yet well supported, arguments suggesting the framers were not of one mind on these issues suggests "Original Intent" is not a valuable tool in the religion clause context. If "Neutrality" and "Original Intent" are empty concepts why has the Court increasingly gravitated toward their use? The reason is that while these concepts are empty they allow for an illusion of objectivity. After all if a given result is neutral and/or consistent with the intent of the Framers it must be valid. The fact that those same principles may have been used in earlier cases to reach the opposite result is given little attention by the current Court, nor is it focused on much in society more generally.

An alternative to neutrality and other broad principles is to look to narrower principles, which may be applied separately or in tandem to issues under the religion clauses. The focus should be upon whether government activity facilitates or discourages religion. This was the focus of the Court’s approach until recent years, but the use of neutrality and original intent by earlier Courts has allowed more recent Courts to use quite different versions of those concepts to reach very different results, often without openly acknowledging it is engaged in a fundamental interpretive shift.

Short Biography:

Frank S. Ravitch is a Professor of Law at the Michigan State University College of Law. He is the author of the books, MARKETING CREATION: THE LAW AND INTELLIGENT DESIGN (Cambridge Univ. Press, expected 2010); Masters OF ILLUSION: THE SUPREME COURT AND THE RELIGION CLAUSES (NYU Press 2007); LAW AND RELIGION, A READER:CASES, CONCEPTS, AND THEORY, 2ND ED. (West 2008) (First Ed. 2004); EMPLOYMENT DISCRIMINATION LAW (Prentice Hall 2005) (with Pamela Sumners and Janis McDonald);and SCHOOL PRAYER AND DISCRIMINATION: THE CIVIL RIGHTS OF RELIGIOUS MINORITIES AND DISSENTERS (Northeastern University Press, 1999 & paperback edition 2001). Professor Ravitch is currently working on a treatise with the late Boris Bittker and Scott Idelman called RELIGION AND THE STATE IN AMERICAN LAW, which is supported by a grant from the Lilly Endowment. He has also published a number of law review articles dealing with law & religion, civil rights law, and disability discrimination in journals such as the Georgia Law Review, Wake Forest Law Review, BYU Law Review, Boston College Law Review, and Cardozo Law Review. In 2001, Professor Ravitch was named a Fulbright Scholar and served on the Faculty of Law at Doshisha University in Kyoto, Japan, where he taught U.S. Constitutional Law and Law & Religion and engaged in research.

Professor Ravitch recently wrote an amicus brief addressing constitutional issues to the United States Supreme Court on behalf of twenty railroad unions in Norfolk Southern Railroad, Inc. v. Sowell. He also wrote an amicus brief to the United States Supreme Court on behalf of the Interfaith Alliance and the Horace Mann League in support of the petition for writ of certiorari in Chandler v. Siegelman, a school prayer case from Alabama. He regularly serves as an expert for print and broadcast media and speaks on topics related to church/state and civil rights law to a wide range of national and local organizations.

For further information contact:

Dr Nadirsyah Hosen
Lecturer
Faculty of Law
University of Wollongong
NSW Australia
Email: hosen@uow.edu.au
Phone: +61 2 4221 4192
Fax: +61 2 4221 3188