Vol. 3 No. 3 (March, 1993) pp. 27-28

REDEFINING THE FIRST FREEDOM: THE SUPREME COURT AND THE CONSOLIDATION OF STATE POWER by Gregg Ivers. New Brunswick, NJ: Transaction Publishers, 1993.

Reviewed by Martin Edelman (State University of New York University at Albany).

As every reader of the law reports, the professional journals and indeed the newspapers knows, the First Amendment's religious clauses have once again become "hot." In REDEFINING THE FIRST FREEDOM, Gregg Ivers seeks to account for this reemergence and to explain its significance. He is considerably more successful in the first endeavor than the second.

Ivers argues that the Supreme Court justices appointed by Presidents Reagan and Bush have significantly changed the governing interpretations of the Establishment and Free Exercise Clauses. Until recently, the prevailing interpretation of the Establishment Clause was that its essential purpose was to separate religion and the state. Since 1971, those justices adhering to a separatist interpretation have utilized the three part standard articulated in LEMON V. KURTZMAN: a statute or governmental practice which touches upon religion (1) must have a secular purpose, (2) must neither advance nor inhibit religion in its principal or primary effect, and (3) it must not foster an excessive entanglement with religion.

That is no longer the interpretation of Chief Justice William Rehnquist and Justices Byron White, Antonin Scalia, and Anthony Kennedy. Instead they believe that the Establishment Clause imposes two limits on governmental action: (1) it may not coerce anyone to support or participate in any religion or religious exercise, and (2) it may not give direct benefits to a particular religion to such a degree that it in fact establishes a state religion or religious faith, or plainly "appears" to do so. Justice Sandra O'Connor, primarily because of her support of the first element [non-coercion] frequently joins this group of justices. But the non-preferential treatment of all religions is the key element in the new interpretation. For under a separatist standard government could no more aid all religions than it could favor one particular creed.

Similarly, until recently, the Supreme Court has generally recognized that religiously motivated actions were constitutionally entitled to enhanced protection under the Free Exercise Clause. This preferred freedom approach required that only interests of the highest order can outweigh non-conforming, religiously motivated behavior. This interpretation required the justices to subject a governmental policy impinging upon religiously motivated behavior to exacting scrutiny.

That is not the interpretation of Chief Justice Rehnquist, and Justices White, Stevens, Scalia, and Kennedy. Instead of a preferred freedom approach, they utilize a neutral, secular purpose standard. The constitutional right to the free exercise of religion, does not relieve an individual of the obligation to comply with a valid and neutral law or regulation of general applicability. Quite obviously, this interpretation is not protective of religiously motivated behavior and is particularly troublesome to groups with non-conforming religious practices.

Through a very detailed explication of the relevant Supreme Court cases (and many lower court opinions as well), Professor Ivers thoroughly documents these changes in constitutional interpretation. His analysis ends with the 1991-92 term of the Supreme Court. But the material is plainly helpful in understanding last term's decisions, and the widespread interest in, and concerns about, the cases to be decided before the Court adjourns in June, 1993.

Unfortunately, Professor Ivers's explanations of recent developments are not equally enlightening. Plainly the Reagan-Bush

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appointees have different beliefs, values, and ideologies than the justices they replaced. Surely, it is too late in the day for any politically aware American to believe that judges are appointed for their value neutral legal expertise. The critical issue, surely, is whether the "older" or "newer" interpretations reflect a better understanding of the constitution. Professor Ivers passionately believes, as I do, that the current interpretations of the Establishment and Free Exercise Clauses pose significant dangers to religious freedom in the United States.

Professor Ivers would put it more strongly: the current majority's interpretations ARE dangerous. But he offers little evidence to support that assertion. If he had talked in terms of the POTENTIAL impact of the Court's doctrines, rather than stressing the harm already inflicted, he would have been on sounder ground. Moreover, Ivers's rhetoric precludes a nuanced understanding that many different elements enter into Court opinions on controversial cases.

Thus he expected (p. 12) the Court to utilize LEE V. WEISMAN (1992) to explicitly revise the LEMON test. Instead, the opinion of the Court sidestepped a reconsideration of LEMON but nonetheless held that the Establishment Clause prohibited state- sponsored religious exercises of any sort -- even bland, non-preferential invocations of the Divine -- at public school commencement exercises. Similarly, Professor Ivers adamantly insists that government aid to religious institutions will be destructive of religion; the state which pays the bills will call the tune. Many religious groups, from many different faiths, disagree. And Professor Ivers offers no empirical evidence to support his strident rhetoric.

Nor does Professor Ivers demonstrate that the Religious Clauses were intended to separate religion and the state and to strongly protect religiously motivated behavior from legal norms of general applicability. His passing references to Madison and others are simply not sufficient to demonstrate that his reading is "correct." In the absence of that sort of effort, Professor Ivers frequently appears to be defending the status quo ante on the grounds that the current majority is upsetting [his] settled expectations.

Ultimately, REDEFINING THE FIRST FREEDOM lacks a clear, sustained, thorough analysis of what values the Religious Clauses were designed to entrench in our society, how those values are advanced and protected by a separationist interpretation of the Establishment Clause and a preferred freedom interpretation of the Free Exercise Clause, and how those interpretations are of continued benefit to contemporary American society.