by Steven H. Shiffrin. Princeton: Princeton University Press, 2009. 235 pp. Hardcover. $35.00 /£24.95. ISBN: 9780691141442. e-Book. $35.00.| ISBN: 9781400833832.
Reviewed by Chad Flanders, St. Louis University School of Law. Email: cflande2 [at] slu.edu.
This is a difficult book to categorize. On the one hand, it is a book on the United States Constitution’s religion clauses. Steven Shiffrin is a well-known scholar of the free speech clauses of the First Amendment, and in this book he turns his attention to those clauses that protect the free exercise of religion and prohibit its establishment. On the other hand, the book is also a commentary on religion in public life, and in particular, the political left’s failure (in Shiffrin’s estimation) to speak compellingly on issues of church and state. It is sometimes hard to see how these two parts of the book obviously hang together: what does Shiffrin’s desire that the Democratic Party incorporate religion into its public pronouncements have to do with the correct interpretation of the First Amendment? Indeed, the net effect may simply to be to induce cynicism in the reader that Shiffrin’s constitutional analysis is driven by his political beliefs (see, e.g., pp.3-4, 6). In order to avoid encouraging this cynicism, I analyze the three major parts of the text separately.
The first part advances his theory of the religion clauses. Shiffrin’s main contribution to this debate is his emphasis on the religion clauses’ “pluralistic foundations,” which he contrasts with the recent trend to view the religion clauses as “primarily rooted in the value of equality” (p.11). Shiffrin says that there are no fewer than seven values that undergird the Free Exercise Clause, as well as seven values which support the Establishment Clause (It seems an odd coincidence that there should exactly the same number of values associated with each clause.)
Despite Shiffrin’s assurance that each of the seven values for the clauses [*225] is distinct, it is hard to escape the impression that some values might collapse into one another, if only we press on them a little. Indeed, in the free exercise context, Shiffrin explicitly mixes the values, as when he says that an aspect of free exercise’s “promotion of political community” (value 6) is that allowing the free exercise of religion minimizes religious violence, which also gets listed separately as value 3.
Another example arises in the Establishment Clause context. Shiffrin says that one value that speaks against an establishment of a religion is that “close connections between church and state . . . work to the detriment of religion” (p.32). Another value is that separating church and state “promotes religion” (p.34) But isn’t “not working to the detriment of” religion an aspect of helping, if not “promoting,” religion? Shiffrin could have usefully consolidated these two purportedly separate values.
Again, Shiffrin’s point about the diversity of values in the religion clauses is to support his case that the clauses have a “pluralistic foundation.” But so long as we cannot reduce all the values of the religion clauses to one, Shiffrin’s point about pluralism still holds. It is a salutary reminder to realize that there may be many and possibly conflicting values at work in most First Amendment religious cases. Still, my sense is that the difference between Shiffrin and his opponents may be less than meets the eye – those who defend equality as the primary religious value usually have a rather nuanced understanding of “religious equality,” one that captures many of the putatively discrete values Shiffrin identifies. There may also be a value to seeking a single principle in the context of religious legal disputes. The problem with having many values is that it may lead to court decisions that seem ad-hoc and unprincipled: there is always the temptation to favor the value that leads to the hoped-for result, and have that win out in the balance. How precisely are we to balance the values when they do conflict? The need to find which side best realizes the one, major value at play may lead to more consistent, and more principled, decisions.
In Part II Shiffrin looks at the question of the constitutionality, as well as the desirability, of compulsory public education and school vouchers. As for the former, Shiffrin believes that there is a colorable constitutional argument that governments can compel children to attend public high school (he disagrees with the conclusion reached by the U.S. Supreme Court in its Wisconsin v. Yoder decision [pp.79-80]). Shiffrin bases his argument, in part, on the need for children to be exposed to many sides of a debate. He quotes Harry Levin to the effect that it would be “unrealistic to expect that Catholic schools will expose their students” to both sides of an issue, or that “evangelical schools would provide a disinterested comparison of creation and evolution” (p.73).
But even granting that Levin’s claim is true – in a book larded with footnotes (one hundred pages worth), Shiffrin does not offer support for many of his empirical claims in this Part – it ignores the value of a market in which not everyone is an open-minded liberal. That is, Levin’s claim ignores the possibility that an important part of a liberal and diverse society is having groups that hold beliefs which are, to a greater or lesser extent, illiberal. This is part of how one learns to respect diversity. And there is no reason to believe, with Shiffrin, that the only way children can become “savvy dissenters” (p.72) from the popular culture is if they attend public schools.
As for vouchers, Shiffrin’s discussion is careful, albeit a bit bland. Beyond rebutting the argument that vouchers are constitutionally mandated (a position few people hold), Shiffrin says that the question of whether vouchers are a good idea involves weighing the advantages they hold for poor children against the costs of entangling the state with religious schools. Shiffrin does not really say how his balancing test is supposed to work. Moreover, employing a balancing test in this context seems to miss how, if there is an Establishment Clause violation, then vouchers can not be funded, no matter how many poor children they help. He says that “some impingement on Establishment Clause values” might be justified “at least for a trial period” (p.91). [*226] This leaves the reader with the strong impression that First Amendment violations can be permitted “for a trial period.”
The third Part of the book, on religion and progressive politics, is the most useful, but also rather unconnected to what precedes it. Shiffrin makes what are to my mind powerful points against John Rawls’s much-debated idea of public reason. A type of public reason that asks citizens to bracket their religious convictions when talking politics is utopian, Shiffrin says, because “arguments from comprehensive views have always been part of the public dialogue, and there is no reason to believe that will ever change” (pp.113-114). Rawls’s idea of public reason was too strict when he began developing it, and despite some alterations in his later work, it remains too strict. Rawls seems to allow that citizens can argue from their comprehensive (including religious) views when there are grave injustices such as segregation and slavery. But a better rule, says Shiffrin, is that departures from public reason are appropriate “whenever it would advance other principles of justice to do so” (p.116).
Shiffrin ends with a defense of a “religious” liberalism, whose foundations nonetheless remain obscure and which is largely unconnected to his discussion of the religion clauses in Parts I and II. Shiffrin is clear that he thinks that the problem with the religious right is not the fact it is religious, but the content of its beliefs. But Shiffrin is not forthcoming with the religious roots of his own, distinctively leftist political views. Shiffrin has rather harsh things to say about the supposedly religious foundations of many conservative positions (e.g., p.119), although he concedes that “God has not spoken clearly on most political issues” (p.133).
Shiffrin writes in conclusion, however, that the different attitudes secular and religious liberals “should not get in the way of their common struggle for justice” (p.133). This is an unsatisfying conclusion, or at least it seems incomplete given what has preceded it. Surely a more satisfactory religious liberalism would not merely assert that its religious positions were congruent with those of a secular liberalism but show how they might be successfully derived from religious premises – or even that the religious premises are the superior ones. This would be to put the religion into religious liberalism. Such an argument might go a long way not only in showing how the Christian right might be mistaken, but also how the secular left (and secularists more generally) might have “much to learn from religious liberalism” (p.99)
© Copyright 2010 by the author, Chad Flanders.