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. …