Thomas C. Berg
89 Texas L. Rev. 901
In this review, Berg discusses the first volume, Overviews & History, of Douglas Laycock’s collected writings on religious liberty. According to Berg, Laycock’s greatest contribution to this theory has been to explain how religious liberty can coincide with government neutrality and evenhandedness toward religion. Laycock did so by distinguishing “formal neutrality,” meaning a ban on religious classifications or on categories referring to religion, from “substantive neutrality,” meaning that government must minimize the extent to which it either encourages or discourages religious belief or disbelief. Berg notes that this conception harmonized neutrality with religious liberty, and that Laycock’s great contribution is to reconcile these two distinct explanations of the Religion Clauses.
Berg raises two doubts about Laycock’s position. The first concerns whether religious or theological arguments may serve as significant public reasons for America’s system of religious liberty. The second involves whether the Establishment Clause permits government any power to include religious content in its statements.
After discussing these doubts, Berg concludes that Laycock’s principles show a remarkable analytical power as well as great sympathy for the claims of people of widely varying views. He places Laycock among the great thinkers on religious liberty in US history and looks forward to the coming volumes.