by Frank S. Ravitch. New York: New York University Press, 2007. 288pp. Cloth. $45.00. ISBN: 9780814775851.
Reviewed by Gad Barzilai, Jackson School of International Studies and Comparative Law and Societies Studies Program, University of Washington. E-mail: gbarzil [at] u.washington.edu.
The quandary regarding how democracy may regulate religion is well rooted in Western political theory and philosophy at least since the 15th century. It is mainly driven from a Western concept, ingrained in modernity, which aims to institutionally avert religion from becoming a major political force (Berman 1983). While not a few Western democracies (alike England and Germany) have an institutional predilection for one religion over another, they have been characterized by a sturdy proclivity to somewhat separating between public religious considerations and national decision-making processes. Hence, the variety of political constitutional structures designed to separate religion from the state is rather striking (Barzilai 2007; 2004, at 392-409). It varies from complete secularization of the state (India) or its national public sphere (France), through implicit encouragements of one religion (Germany), to formal encouragement of one religion (Spain).
In this context of diversity of institutional constitutional attempts to hinder religion, however problematic these attempts may have been, Frank S. Ravitch’s MASTERS OF ILLUSION, is a significant scholarly endeavor to better comprehend the specific constitutional criteria that have been used regarding freedom of religion and the Establishment clause in the US. Under the illusion that any given legal setting may stand independent from its comparative sociopolitical surroundings, the book ignores a comparative context that may illuminate the US experience as rather exceptional. Yet, it offers an insightful critic of the concept of ‘neutrality’ as a plausible basis for court decisions in the US regarding state and religion. The book may support other research projects that debunk the judicial myth (Fitzpatrick 1992) as if judges/justices are neutral in their interests regarding the legal status of religion in public life: “Neutrality, whether formal or substantive, does not exist in the religion clause context” (p.13). Accordingly, the book invites readers to comprehend which criteria of public policy were guiding the Supreme Court and which normative paradigm of jurisprudence should prevail in instructing a proper judicial policy that serves the liberal American concept of religion, however exceptional it is in a comparative perspective.
The book opens with a fine critical chapter on the fantasy as if judicial ‘neutrality’ exists in rulings on freedom of religion in the US. Then it turns to several analytical chapters that illuminate which conceptual guidelines of jurisprudence were practically [*907] navigating the Supreme Court in its judgments on religion-state matters: hostility, liberty, equality, separationism, and accommodationism. With a detailed examination of dozens of court rulings Ravitch demonstrates why, under the veil of neutrality, the court, in fact, has activated political concepts of jurisprudence about the place of religion, and is far from being neutral. At the end of the book, Ravitch offers his own normative paradigm of court rulings – i.e., the facilitation test that offers the justices to look into conflicts between religious communities and the state through a pragmatic policy prohibiting any government action if it intends to either encourage one religion or discourage another (pp.168-192). However, the book explicitly withdraws from secular fundamentalism and invites its readers to acknowledge instances in which some state intervention in religious issues is required for the sake of liberty of religious beliefs and in order to realize equality among various religious communities (pp.170-172).
A straightforward state intervention in matters of state-religion would stand against the intent of the US constitution and its founders (p.79). Yet, above that very basic type of ‘soft originalism’ (pp.4, 164), Ravitch opposes any rigid legalistic concept of ‘originalism,’ since it is implausible to know how the constitution had originally intended to maintain religious freedom, above and beyond its basic intent to prohibit direct governmental action clearly supporting one religion over another. Hence, any pretension to claim ‘original intent’ of the constitution is misleading, while in practice the court does have a specific political interest in mind. The book is counterintuitive and insightful in opposing the secular fundamental option of unmodified separation between the state’s organs and religion (p.86). Context is crucial, and under some circumstances it is advisable for the government to intervene institutionally for maintaining equality among various communities and liberty for individuals with varied religious preferences (p.171). Thus, there is a difference between an unjust government intervention for promoting prayer in public schools, on the one hand, and justly intervening for enabling minorities to enjoy the same access to public services.
Generally, as an alternative to abstract principles, this book is about contextual pragmatism, and it calls for judicial intervention for resolving specific conflicts based on a dynamic court policy that can be practically applied for resolving very concrete disputes (pp.2, 166-167). Therefore, MASTERS OF ILLUSION invites us to ponder upon an alternative legal policy that in fact looks into the essence of the controversial governmental action without a fundamental commitment to either separation or engagement in religious matters. Accordingly, the facilitation test negates any solicitation of one specific religion or any attempt to subdue one specific religion. Yet, Ravitch refers to a policy of accommodation, based on contextual contingencies and rejects complete separation of the government from religion if such an institutional separation may lead to lack of protection of religious pluralism in the US.
A detailed explication of various court rulings notwithstanding, the book is too narrowly focused on legalistic analysis of concrete legal cases and problems of [*908] jurisprudence, while it largely ignores the cultural and political settings in which law is embedded. Thus, Ravitch neglects social forces, like NGOs, political groups, religious institutions, and communal interactions, which may contribute to resolution of religious conflicts with no meaningful adjudication and with no judicial intervention. He negates formalism, on the one hand, but presents a hyper-legalistic court-centered thesis, on the other hand, presuming that adjudication should be a dominant vehicle for resolving religious disputes, while in fact most of those conflicts are either resolved at the social level or are rarely litigated in courts. The Federal system that defers many religious issues to the communal level bounds any research on religion and law to be less court-centered and more oriented to look into non-litigious ways that may resolve issues of politics and religion. In this context of multicultural inter-communal religious fabric, minority communities need to be further protected. The US has a deep Christian religious culture and a relatively religious political culture. Ravitch, however, does not make a strong case of showing how courts, and the Supreme Court, in particular, may protect religious minorities in this context. The virtues of contextual approaches for jurisprudence notwithstanding, some abstract criteria for protecting religious minorities are expected from any fruitful doctrine of law and politics.
Notwithstanding these shortcomings, MASTERS OF ILLUSION is a very important contribution to scholars who are interested in law and religion, freedom of religion, the Establishment clause and American jurisprudence. It is a well documented book, and despite some textual repetitions it articulates the main arguments in a very collegial and lucid way. It is definitely a must read to everybody who wants to become skilled at the virtues and deficiencies of Supreme Court rulings in the US about church-state issues. We should encourage publication of more books that take ‘law’ away from its faulty illusionary place as a formalistic island.
Barzilai Gad. 2004. “Legal Categorizations and Religion: Politics of Modernity, Faith and Power.” In Austin Sarat (ed.) COMPANION TO LAW AND SOCIETY. Malden, MA and Oxford: Blackwell.
Barzilai Gad. 2007. LAW AND RELIGION. Aldershot: Ashgate.
Berman H. Harold. 1983. LAW AND REVOLUTION: THE FORMATION OF THE WESTERN LEGAL TRADITION. Cambridge: Harvard University Press.
Fitzpatrick, Peter. 1992. THE MYTHOLOGY OF MODERN LAW. London and New York: Routledge.
© Copyright 2007 by the author, Gad Barzilai.