Laycock Co-Authors Brief Supporting Same-Sex Marriage, Religious Liberty

University of Virginia School of Law professor Douglas Laycock has co-authored an amicus brief supporting petitioners who are challenging states' power to ban same-sex marriage.

The four U.S. Supreme Court cases consolidate challenges to states that ban gay marriage and to states that don't recognize out-of-state gay marriages, including Ohio, Tennessee, Michigan and Kentucky. The court will hear arguments April 28.

Joining Laycock's brief are Thomas C. Berg of the University of St. Thomas School of Law; David Blankenhorn, founder and president of the Institute for American Values; Marie A. Failinger of Hamline University Law School and Edward McGlynn Gaffney of Valparaiso University Law School.

"We filed the brief because we really believe that the right thing to do is to protect the liberty of both sides in the culture wars," Laycock said. "Religious liberty concerns are too often dismissed as mere obstructionism in opposition to marriage equality, and some people use them that way. We explained why religious liberty is not a reason to oppose same-sex marriage, but it is a reason to protect churches and religious nonprofits that adhere to longstanding religious understandings of marriage."

Laycock, who is also a professor of religious studies at UVA, is one of the nation's leading authorities on religious liberty and the law of remedies. In October he argued the Supreme Court case Holt v. Hobbs, which marked his fifth oral argument at the court. In January the court ruled unanimously in favor of Laycock's client, a Muslim prison inmate who wanted to wear a short beard in violation of prison rules.

The brief for the same-sex marriage cases explains how the LGBT community and religious minorities make similar claims on the larger society. Their sexual orientation, and their religious faith, is at the core of their identity, Laycock said.

"And they feel compelled to act on that identity," he said. "It is no more reasonable to ask religious believers not to act on their understanding of God's will than to ask all gays and lesbians to remain celibate."

"Both same-sex couples, and religious organizations and believers committed to traditional understandings of marriage, face hostile regulation that condemns their most cherished commitments as evil," Laycock writes in the brief. "The American solution to this conflict is to protect the liberty of both sides. Same-sex couples must be permitted to marry, and religious dissenters must be permitted to refuse to recognize those marriages."

The cases are Obergefell v. Hodges, Tanco v. Haslam, DeBoer v. Snyder, and Bourke v. Beshear.

Laycock also joined the UVA Law Supreme Court Litigation Clinic — including clinic instructors Toby Heytens, Dan Ortiz and David Goldberg — in co-authoring an amicus brief for another Supreme Court case under consideration this term, EEOC v. Abercrombie. In that case, a Muslim woman filed a complaint against Abercrombie & Fitch with the Equal Employment Opportunity Commission. The clothing retailer reportedly didn't hire her because she wore a head scarf to her interview, which at the time was at odds with Abercrombie's policies for how sales employees should be dressed. The brief supports the woman and the EEOC, which filed a lawsuit on her behalf in federal court.