Reviewed by John W. Compton, Department of Political Science, Chapman University. Email: compton [at] chapman.edu.
Bruce Ledewitz’s Church, State, and the Crisis in American Secularism is an ambitious and timely work. In the book’s first section, Ledewitz reviews seven decades of case law and concludes that the United States has reached a “crisis” point in church-state relations (p.46). He then offers a novel interpretation of the Establishment Clause with the aim of resolving the current crisis. Finally, in the book’s concluding section, he attempts to lay the groundwork for a truce in the nation’s “religious culture wars” (p.210).
Ledewitz’s critique of modern Establishment Clause jurisprudence is compelling and frequently insightful. His account begins with Everson v. Board of Education, the 1947 decision that established the principle of government “neutrality” as the bedrock of modern Establishment Clause jurisprudence. Simply put, Everson declared that the First Amendment had erected a “wall of separation” between church and state. As a result, state and federal governments were constitutionally barred from aiding religious groups or otherwise promoting religious belief. But as Ledewitz points out, the neutrality principle has never worked particularly well in practice. For starters, the doctrine was deeply unpopular with the public; and while the Court appeared for a time determined to enforce the neutrality standard at all costs, it soon became apparent that existing links between church and state were too many and too complex to permit a clean separation. To be sure, there were easy cases like school-sponsored prayer and Bible reading that could be convincingly characterized as official endorsements of religion. But the Court soon found itself confronted with difficult borderline cases involving public displays of the Ten Commandments, school voucher programs, and crosses on public lands. In recent decades, such cases have splintered the Court, producing a series of contentious 5-4 rulings and leaving a doctrinal morass in their wake (pp.24-45).
The underlying problem with modern Establishment Clause jurisprudence, according to Ledewitz, is that the neutrality standard, if honestly applied, would require the Court to purge the public square of all forms of religious expression – by, for example, striking the words “under God” from the Pledge of Allegiance. Yet not even the liberal wing of the Roberts Court seems willing to risk the public backlash such rulings would entail. As Ledewitz writes, the Justices are either “unwilling or unable to defend” the neutrality standard, and have instead used a variety of doctrinal “stopgaps and exceptions” to avoid striking down popular forms of official religious expression (pp.39-40). The Court has dodged challenges to the Pledge of Allegiance, for example, by asserting that the parents of public school children lack [*198] standing to raise the issue in federal court (pp.31-35). And in cases where the Court has reached the merits, as in its 2005 decision permitting a Ten Commandments display on the grounds of the Texas Statehouse, the results are often difficult to square with the ideal of neutrality (pp.35-8). Ledewitz thus concludes that a “gap” has opened between “what the … Supreme Court has written that the Constitution demands … and what American society actually does. The Court has promised government neutrality toward religion; but our practices suggest something quite different” (p.3).
The only way forward, Ledewitz argues, is for the Court to articulate and enforce a new “principle of church and state,” one that is capable of achieving “popular legitimacy” (pp.70-71). His proposal for reform takes as its starting point the Court’s 2009 decision in Pleasant Grove City v. Summum. Here, the Court was asked to decide whether a small, non-Christian sect could claim a First Amendment right to install a monument in a public park where other privately donated monuments – including one depicting the Ten Commandments – were already on display. Writing for the majority, Justice Alito held that the city was not required to accept the new monument, since under the “government speech” doctrine, cities may exercise discretion in deciding which “values and ideas” they wish to endorse. Were this not the case, Alito reasoned, the City of New York might well be required to install a donated “Statue of Autocracy” beside the Statue of Liberty.
Although several members of the Court have expressed doubts about the “government speech” doctrine, Ledewitz believes that the concept can be used to restore coherence and vitality to the Court’s Establishment Clause jurisprudence. In short, he argues that the Court should formally abandon its effort to purge the public square of religious imagery, and instead focus on whether particular symbols or images can be plausibly be described as conveying secular as well as religious messages. So long as a plausible secular rationale can be found for a particular instance of government speech, the speech should be permitted. Going further, he argues that many examples of public religious expression are inextricably linked to the “secular” ideal of “higher law,” or the belief that there are “objective standards of right and wrong” (pp.103-106). Thus, the reason why representations of the Ten Commandments are commonly found in courthouses is not because of any plot to impose religion on the citizenry, but rather because the Ten Commandments invoke the idea of an objective standard of justice against which specific laws can “be measured as either just or unjust” (p.xix). Of course, images of the Ten Commandments also carry religious overtones, which may in some instances overshadow the secular, higher-law message. To determine whether a given display is constitutionally permissible, then, one must pay attention to context. In a courthouse setting, he argues, a Ten Commandments display is most plausibly understood as conveying a “message about the nature and meaning of secular law.” Yet the same display in an elementary school classroom might well “be taken to be an endorsement of the biblical God” (p.151).
At first glance, Ledewitz’s interpretive move appears to preserve a vital core of existing case law – in particular, [*199] decisions that ban proselytizing in public settings or with public funds – while providing the Court with an escape route from the peripheral controversies surrounding the Pledge of Allegiance and the use of the phrase “In God We Trust.” But upon close inspection, there are several problems with his proposal. For starters, one might object that a more logical course of action would be for the Court to simply start enforcing its existing church-state doctrine instead of using “stopgaps and exceptions” to dodge Establishment Clause cases. But instead of directly addressing this objection, Ledewitz resorts to alarmism. If the Court were to return to the more robust neutrality jurisprudence of the 1960s, he argues, “millions of Americans would become convinced that constitutionalism and judicial review are evil. The American experiment itself would begin to fail. Eventually some Mussolini type might come along to give political expression to these resentments” (p.128).
This is a curious claim, to say the least. True, the present political climate is hardly conducive to a robust Establishment Clause jurisprudence. But neither is the present climate particularly conducive to decisions in support of abortion rights or same-sex marriage. And yet controversial rulings in these areas do not seem to have significantly eroded the public’s faith in the constitutional system. Indeed, there is a growing political science literature which suggests that public respect for the judiciary remains surprisingly robust, even as large segments of the public disapprove of specific rulings, such as those establishing a right to same-sex marriage (see, e.g., Gibson et al., 2003; Gibson 2007).
Still, it is hard to argue with Ledewitz’s broader claim that the neutrality standard has become so watered down by recent decisions as to make a course correction all but inevitable. The critical question, then, is whether the government speech doctrine, when combined with the concept of higher law, represents an improvement over the neutrality standard. In other words, does Ledewitz’s novel interpretation of the Establishment Clause yield clear results in concrete cases? Despite the author’s assertions to the contrary, it soon becomes apparent that distinguishing between religious speech and expressions of support for “higher law” is no easy task. The problem is particularly evident when Ledewitz discusses the hot-button issues of evolution and school prayer. In the case of evolution, state and federal courts have consistently rebuffed attempts to smuggle religious ideas into the biology classroom, and Ledewitz believes that most of these cases were rightly decided. At the same time, however, he insists that public school officials should be permitted to refute the notion that “the process of evolution – that is, life itself – has no meaning” (p.148). So, for example, teachers might be required to read a disclaimer informing students that evolution is not necessarily a “random process,” and that, in fact, the theory is perfectly compatible with the view that “the universe selects for morality in … a comprehensive way,” so that human beings have developed an “increasing capacity” for empathy and self-sacrifice over time (pp.148-149). But, setting aside the question of whether this disclaimer would meet with the approval of the scientific community, it seems to invite precisely the sort of “culture war” backlash that Ledewitz claims to want to prevent. Indeed, Ledewitz’s proposal [*200] would likely reopen old wounds, as anti-evolution school boards rush to test the limits of “higher law” language.
Similarly, in the case of school prayer, Ledewitz endorses the Warren Court’s decision in Engel v. Vitale, which declared unconstitutional a New York law that required public school students to recite a prayer at the beginning of the school day. Yet he believes that later Court decisions, which banned student-led prayers at football games and graduation ceremonies, were wrongly decided. The reason for the distinction? The New York prayer was plainly sectarian in nature, he argues, while the prayers at issue in the more recent cases contained only vague references to a divine being or creator. But here again, Ledewitz glosses over the inherent difficulties in distinguishing affirmations of “higher law” from efforts to promote sectarian religion. Indeed, he offers no clear indication of why the phrase “God of the Free” – invoked in the high school graduation case of Lee v. Weisman – should be regarded as less sectarian than the “Almighty God” of the Engel decision (pp.152-153).
Which brings us to the most serious shortcoming of Ledewitz’s study: he seems less interested in resolving longstanding Establishment Clause controversies than in seeing them resolved on his own terms. In fact, by the time one reaches the later chapters, it is clear that Ledewitz’s primary aim is not so much to set the Court’s church-state jurisprudence on a secure footing as to confront “the cultural threat of nihilism” which he believes has accompanied the secularization of American society (pp.155, 247). And indeed, Ledewitz’ endorsement of the “government speech” doctrine is explicitly motivated by the hope that school officials will use their newfound freedom to improve “the spiritual condition” of their students. Thus, in the end, Ledewitz’s legal analysis is overshadowed by his normative appeal to take up arms in the struggle against “materialism, relativism, and nihilism” (pp.154-5). To be sure, his critique of modern-day Establishment Clause jurisprudence is perceptive; and his effort to find a plausible doctrinal grounding for recent church-state rulings should be commended. Yet because the book’s interpretive argument is so clearly intertwined with a particular cultural agenda, its appeal may well be limited to those who already share Ledewitz’s metaphysical commitments.
Gibson, James L., Gregory A. Caldeira and Lester Kenyatta Spence. 2003. “The Supreme Court and the US Presidential Election of 2000: Wounds, Self-Inflicted or Otherwise?” British Journal of Political Science 33: 535-556.
Gibson, James L. 2007. “The Legitimacy of the U.S. Supreme Court in a Polarized Polity.” Journal of Empirical Legal Studies 4: 507–538.Cases Cited
Everson v. Board of Education 330 U.S. 1 (1947).
Engel v. Vitale 370 U.S. 421 (1962).
Lee v. Weisman 505 U.S. 577 (1992).
Pleasant Grove City v. Summum 555 U.S. 460 (2009).
Copyright 2012 by the author, John W. Compton.