Jay Wexler

89 Texas L. Rev. 935

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In this lighthearted piece, Wexler reviews the first volume of Douglas Laycock’s collected works, which contains roughly forty pieces that he wrote between 1985 and 2009.

On nearly every issue presented in the volume, Wexler finds himself on common ground with Laycock.  For example, they both believe that religious believers should have robust exemption rights from general laws under the Free Exercise Clause.  Moreover, Wexler notes that neither of them believes in God but also that what one believes about God should have no effect on how one interprets the First Amendment.

Wexler does have some reservations about a number of Laycock’s most important points.  One of Laycock’s most important contributions to the field has to do with the concept of “neutrality.”  Laycock pointed out that there are two main types of neutrality.  “Formal neutrality” means government cannot utilize religion as a standard for action or inaction.  “Substantive neutrality” means that the Religion Clauses require government to minimize the extent to which it either encourages or discourages religious views and practices.  Wexler remains unconvinced that neutrality should be used at all when talking about the Religion Clauses.  In his view, Laycock’s concept of substantive neutrality may not seem enough like what we generally think of as the core meaning of neutrality in order to justify calling it neutrality.

In light of this and other considerations, Wexler suggests reformulating substantive neutrality to mean that government must minimize the effects of its actions on private religious choices, unless it has a compelling interest and unless it is taking positions on contested issues that will have potentially significant effects on some religions.  Although this would not be as simple a formulation as “substantive neutrality,” Wexler argues that it would help eliminate the confusion surrounding the concept.

Wexler wonders, however, whether it might have been better to put together a shorter, fully original book setting out Laycock’s views on religious liberty and the First Amendment for the general public.  Whether or not such a book is in the future, Wexler finds the current volume to be a great accomplishment.