Laycock Releases Second Volume of Collected Works on Religious Liberty

April 26, 2011

The conflict in the courts over the government's treatment of religious practice reflects the country's larger struggle to balance liberty and societal values, Professor Douglas Laycock writes in a new book.

Douglas Laycock

In Religious Liberty, Volume Two: The Free Exercise Clause," Laycock, a leading authority on law and religion, explores how judicial interpretation of the First Amendment's Free Exercise Clause — which says Congress shall make no law prohibiting the free exercise of religion — has changed in the past 30 years.

Volume two is about government regulation of religious practice and the extent to which the Constitution protects against that regulation," Laycock said. There are pieces here on the general issue of what the Constitution means and there are pieces on a whole series of specific applications — regulation of religious colleges, regulation of religious employment, the sex abuse cases the small and unusual non-Western religions like Hare Krishna and Santeria."

Laycock BookThe book is the second in a series of Laycock's collected writings on religious liberty. The first volume offered overviews of the subject and its history, the third book will examine federal and state legislation, and the final volume will concern religious free speech, government speech about religion and government funding of religious institutions. The series includes both scholarly and popular writings — from law review articles to U.S. Supreme Court briefs to editorials — and offers an in-depth and accessible analysis of nearly every aspect of the subject.

Laycock has an insider's perspective. He has argued or briefed some of the most important religious liberty cases to come before the Supreme Court in recent years, and he will argue a religious employment case, Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, in the October 2011 term.

In his new book, Laycock writes that the Supreme Court created an unexpected turning point in interpreting Free Exercise cases in 1990, when justices ruled in Employment Division v. Smith that Oregon could deny unemployment benefits to two men fired for violating a state prohibition on the use of peyote, even though they used the drug in a religious ritual. This case provides much of the organizational structure for Laycock's second volume, which contains sections on free exercise before and after Smith.

The Supreme Court's view had been that if government burdens religious practice, it has to have a very good reason — what we call the compelling interest test. That was consistent with viewing the free exercise of religion as a substantive right," Laycock said. And then in Smith, they said 'Well, no, not only is no compelling interest required, but no justification at all is required if the law that regulates religion applies to everybody else as well.' If it's what they call a neutral, generally applicable law, it can be applied even to a worship service and the government doesn't have to make an exception, it doesn't have to have a reason for refusing an exception. They can just say 'This is the law.'"

The case changed the nature of Free Exercise Clause litigation.

It was a bad decision and it was a total surprise — no one asked the court to do this. It hadn't been briefed, it hadn't been argued to the court, they just did it," Laycock said. The dominant reaction was shock. At least in the beginning, it seemed like they just repealed a whole clause of the Constitution. Later, as we thought about it more, as we thought about the ambiguities in what it means for a law to be generally applicable, we realized this might be an enormous change or not-so-enormous, depending on how it's ultimately interpreted. And the decision has some defenders now; it had very few in the beginning."

Twenty-one years later the court has not clarified what it means by generally applicable law."

There's plenty for lawyers to fight over," Laycock said.

After the decision, Congress passed a series of statutes protecting religious liberty, including the Religious Freedom Restoration Act, and 16 state legislatures have followed with similar statutes at the state level. In part because of these legislative responses, the Supreme Court has had little opportunity to elaborate its new understanding of the constitutional right.

There haven't been as many cases covered only by the Free Exercise Clause as people anticipated," he said. When such cases have arisen, lower courts have split on the meaning of generally applicable law."

Laycock argued the sole Supreme Court case touching on the issue since Smith, Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah in 1993. He won, but government lawyers dismiss Lukumi as a case with extreme facts."

Although it did not adequately clarify what was meant by 'generally applicable law,' it did clarify that Smith was not a repeal of Free Exercise," Laycock said.

The other major theme of the book is the right to church autonomy — the right of religious organizations to autonomously manage their own internal affairs.

Church autonomy has deep roots in the Supreme Court's cases," Laycock said. But the scholarly elaboration of this right is prominently associated with his own work, beginning with a seminal 1981 article in the Columbia Law Review. That article appears in the new book, along with a 2009 article that Laycock calls a mature review" of the earlier piece.

What first comes to mind with respect to free exercise is the religious dissenter punished for practicing his religion. Those cases are important, but they do not exhaust the Free Exercise Clause," he said. "Churches must also have some degree of institutional autonomy: freedom to select their own leaders, define their own doctrines, resolve their own disputes and run their own institutions."

Laycock said his interest in religious liberty does not extend from his personal religious views.

I think protecting the liberty of both believers and nonbelievers is what the Constitution commits us to, and I think it's better for social peace," Laycock said. We disagree intensely on the most fundamental things, and yet we have to live together in the same society."

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