Laycock's Legacy

By Berg, Thomas C. | Texas Law Review, January 1, 2011 | Go to article overview

Laycock's Legacy

Berg, Thomas C., Texas Law Review

Laycock's Legacy RELIGIOUS LIBERTY, VOLUME ONE: OVERVIEWS & HISTORY. By Douglas Laycock. Wm. B. Eerdmans Publishing Co., 2010. 888 pages. $35.00.

Douglas Laycock is a towering figure in the law of religious liberty. He has been a path-breaking scholar, a successful appellate litigator, a legislative advocate instrumental in the development of statutes protecting religious liberty, and a commentator known for his ability to summarize church-state law and debates cogently and with sympathy for the conflicting sides.1 He has defended the rights of individuals and groups of almost every possible religious view, from evangelical Christians to Santeria animist worshipers to atheists. As a result, he is respected by people on both sides of the culture wars that animate many Religion Clause controversies.

Now a forthcoming four-volume set of Laycock's collected writings on religious liberty will help to assess his remarkable (and still unfinished) legacy. This first volume, Overviews & History,2 actually does not include his most immediately influential work: articles, testimony, and other writings on the Free Exercise Clause and on religious liberty statutes, such as the Religious Freedom Restoration Act,3 whose enactment owed much to his efforts.4 These will have to wait until volumes 2 and 3.5 Taking one volume at a time, however, at least makes the reviewer's task manageable. It is hard to see how a review article could do justice to the full range of Laycock's religious liberty work.

Any review I write about Doug Laycock is inevitably a tribute, for he was an inspiration to me when I entered law teaching almost twenty years ago and remains so today. His ideas on religious liberty have deeply shaped my own, but the influence has gone beyond ideas. His combination of scrupulous scholarship and powerful advocacy has been a model for me, even though (as this collection reminds me) it is nearly impossible to carry it out as well as he has. As we have shared ideas in the settings of scholarship, litigation, or legislation, he has taught by example how to communicate crisply, how to think strategically and tactically, and how to offer assistance to others with both generosity and rigor. Among my greatest professional satisfactions has been to collaborate with him on articles and briefs.6

I begin this Review by describing what I see as Laycock's greatest contributions to the theory of religious liberty. Then I examine the one area where I have material doubts about his position.

I. Laycock's Achievements

A. Liberty, Neutrality, Voluntarism

Laycock's greatest contribution to theory has been to explain how religious liberty can coincide with government neutrality and evenhandedness toward religion. All these values are associated with the Religion Clauses, but one might easily conclude they conflict. Religion involves not only belief and speech but also conduct, and the modern state affects conduct pervasively through both regulation and subsidies. Preserving meaningful religious liberty therefore can require the state to treat religion differently from many other activities. But special treatment of religion might be said to violate neutrality and evenhandedness toward religion. These are also important First Amendment values, since the existence of two provisions, nonestablishment and free exercise, suggests that government's treatment of religion must be in some sense balanced-neither promotion nor discouragement.

Laycock tackled this problem in the context of the debate over whether the Free Exercise Clause requires government to exempt religious practice from generally applicable laws. Exemptions are necessary to preserve meaningful liberty for religious exercise, because in a modern, pluralistic state with many laws and many different religions, inadvertent conflicts between regulations and religious practices will be frequent. After mandating some exemptions in the 1960s and 70s,7 the Supreme Court began to turn against them. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Cite this article

Cited article

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)


1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25,

Cited article

Laycock's Legacy


Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25,

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.