Academic journal article Texas Law Review

Lawyering Religious Liberty

Academic journal article Texas Law Review

Lawyering Religious Liberty

Article excerpt

Lawyering Religious Liberty RELIGIOUS LIBERTY, VOLUME ONE: OVERVIEWS & HISTORY. By Douglas Laycock. Wm. B. Eerdmans Publishing Co., 2010. 888 pages. $35.00.

Douglas Laycock has been the preeminent lawyer-scholar of religious freedom over the last quarter-century1-that would be my judgment, anyway-and his influential writings, though already familiar to those who work in this area, amply repay rereading. So it is fitting, as well as convenient, that those writings are being gathered into a collected works series.2

The challenge for a reviewer, however, is daunting. There is vastly more both to praise and to question in this book of over 800 pages (the first of four projected volumes) than my competence and my modest prescribed word limit allow. So I propose to use the event of a collection of Laycock's leading writings to attempt a more overarching appraisal. I will try to distill down the overall purpose and shape of his project, to reflect on what it has contributed to our understanding and our law, and also to note what seem to me its principal limitations.

I. Laycock's Substantive Neutrality

First the distillation. At the heart of Laycock's work is a (seemingly) simple, powerful proposition: we should understand the First Amendment Religion Clauses to be about religious liberty. The clauses are not designed to promote or protect religion-or secularism either; they protect liberty.3 Laycock repeatedly objects to the practice by religious believers and skeptics alike of importing their views of religion into their interpretations of the First Amendment, thereby committing what he calls the "Puritan mistake."4 (Whether Laycock himself is guilty of the same transgression, if it is one, is a question we will consider later.)

Having declared that the religion clauses are about religious liberty, Laycock next proposes what he seems to regard virtually as a truism-that a commitment to religious liberty entails an effort to minimize governmental influence over individual choice in the areas of religious belief or practice. He describes this commitment to minimizing influence as substantive neutrality; this, he says, is the central theme that runs through and unifies his work.5

Elaborating on the implications of substantive neutrality, Laycock goes on to address the concrete controversies of the day. In broad terms, he (a) generally favors what are often called free exercise exemptions,6 (b) approves governmental funding for religious schools and social service providers if and only if they qualify under general and neutral criteria or programs,7 and (c) condemns governmental religious expressions such as "under God" in the Pledge of Allegiance and publicly sponsored Christmas creches.8 In arguing for these premises and conclusions, Laycock engages in extensive normative theorizing,9 presents and draws conclusions from history,10 and demonstrates a consummate mastery of the lawyerly arts of analyzing cases.11

This brief summary obviously does not pretend to give the nuances and details of Laycock's descriptions and arguments. Even so, I hope this distillation is enough to permit an appreciation of Laycock's remarkable achievement-and also of some central questions and doubts that his work provokes.

II. The Context: Religious Freedom in the Ruins?

Laycock's project in defining and defending religious liberty must be appreciated, I think, in light of the immensely challenging context in which he is working. Two troublesome features of that context are well known. First, the doctrine and case law of religious freedom are widely viewed as being in disarray.12 Second, the larger society within which judges and scholars address the questions of religious freedom is deeply divided. On virtually every issue that Laycock discusses, Americans disagree, often passionately; these divisions are reflected in what Laycock and others often describe as the culture wars.13

A third difficulty is less obvious but ultimately even more daunting. …

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