Professor Douglas Laycock Finishes Volumes on Religious Freedom

Final Books Explore Future of Culture Wars
Douglas Laycock

Douglas Laycock has served as lead counsel in six religious liberty cases at the U.S. Supreme Court.

October 25, 2018

Professor Douglas Laycock of the University of Virginia School of Law, one of the nation’s leading experts on religious liberty, has completed a comprehensive series of books about the often legally and socially contentious topic of religion and the law.

The final three volumes of “Religious Liberty” will be published in November, drawing to a close the five-volume series, which Wm. B. Eerdmans Publishing Co. first began to release in 2010.

The books span Laycock’s four decades of scholarship and work in the field, including his influence on questions before the U.S. Supreme Court. He has served as lead counsel in six cases before the court.

Whereas the first two books laid the groundwork with “Overviews and History” and “The Free Exercise Clause,” the new editions delve more deeply into recent controversies, such as whether a religiously observant baker can decline to bake a cake for a same-sex couple’s wedding ceremony in Masterpiece Cakeshop.

“I think there is a solution to the conflict between religious liberty and anti-discrimination laws, and Volume Three lays it out,” Laycock said of the third book in the series, “Religious Freedom Restoration Acts, Same-Sex Marriage Legislation, and the Culture Wars.

“It requires only that each side focus on securing its own liberty, and give up on their desire to restrict the liberty of the other side. I say ‘only,’ but so far, that has been politically impossible.”

Volume Four, titled “Federal Legislation after the Religious Freedom Restoration Act, with More on the Culture Wars,” traces a push to replace the Religious Freedom Restoration Act with the Religious Liberty Protection Act.

The effort failed, but it led to new legislation protecting churches from hostile zoning and protecting the religious rights of prisoners.

“The RLPA debate was a critically important episode; it is the point at which religious liberty became a culture-war issue,” Laycock said. “What Congress had enacted all but unanimously in 1993 could not be re-enacted, with a narrower scope, in 1998 or 1999” — or at any time since.

Volume Five, titled “The Free Speech and Establishment Clauses,” explores how the two clauses go together, since religious speech by private citizens is highly protected by the free speech clause, yet religious speech by government, or with government sponsorship, is highly restricted by the establishment clause.

“The volume covers religious free speech in public schools and universities, in the political process and in the workplace,” Laycock said. “It covers government-sponsored prayers, the Pledge of Allegiance, and displays of crosses, Nativity scenes and Ten Commandments monuments.”

“Religious Liberty” was conceived by John Witte, director of the Center for the Study of Law and Religion at Emory University, as an indexed reference set as part of the center’s book series. The project received funding from law schools at Texas, Michigan and UVA, from the International Center for Law and Religion Studies at Brigham Young University, and from the Center for the Study of Law and Religion.

“Laycock’s scholarship and advocacy in the field of law and religion have been enormously influential,” said professor Micah Schwartzman ’05, director of the Karsh Center for Law and Democracy at the Law School. “At UVA, our faculty and students have been fortunate to learn from him, both as a scholar and a litigator. His volumes on ‘Religious Liberty’ will help future generations understand the development of the law and Laycock’s lasting contribution to it. They reflect a lifetime of learning and lawyering, and together they represent a remarkable set of accomplishments.”

The final product is roughly 4,800 pages and reflects Laycock’s career of writing on the subject. The publication included numerous supplemental materials in the expansive set.

“We decided to include briefs and legislative testimony, because they are integrally connected to my scholarship, and because I had recently experienced a run of requests for briefs I had filed,” Laycock said. “I try never to say anything to a court or legislator that I would not be willing to say in a scholarly article. My scholarship informs my litigation and legislative work, and the many things I learn from that real-world experience inform my scholarship.”

Laycock, who serves as the Robert E. Scott Distinguished Professor of Law and as a professor of religious studies at UVA, has testified frequently before Congress and has argued many cases in the courts. At the U.S. Supreme Court, he most recently argued and won Holt v. Hobbes, the 2015 case that determined that the Arkansas Department of Corrections’ policy on beards violated the Religious Land Use and Institutionalized Persons Act of 2000. His co-authored amicus brief on Masterpiece Cakeshop is also thought to have influenced the court.

Laycock is vice president of the American Law Institute and a fellow of the American Academy of Arts and Sciences.

He is also one of the nation’s leading experts on the law of remedies.

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