Thomas C. Berg, Laycock's Legacy, 89 Texas L. Rev. 901 (2011) (reviewing Douglas Laycock, Religious Liberty, Volume One: Overview and History (2010))

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.

Steven D. Smith, Lawyering Religious Liberty, 89 Texas L. Rev. 917 (2011) (reviewing Douglas Laycock, Religious Liberty, Volume One: Overview and History (2010))

In this book review, Smith attempts to distill the overall purpose of the first volume of Douglas Laycock’s collected works, reflects on its contributions to our understanding of the law, and notes what, in his view, are its primary limitations.

As for the distillation, Smith finds that Laycock’s work centers on a seemingly simple yet powerful proposition: the Religion Clauses are about religious liberty, and a commitment to religious liberty requires minimizing governmental influence over individual choices of religious belief and practice.  In Laycock’s terms, this is “substantive neutrality.” 

Next, Smith turns to the context in which Laycock is working.  Two troublesome aspects to which he draws attention are the disarray of both the doctrine and case law of religious freedom as well as the divisions among the larger society of judges and scholars addressing such questions.  Even more problematic, Smith argues, is that religious freedom has contributed to an increasingly diverse population in which the classical religious premises and rationales are unlikely to enjoy universal acceptance.  As a result, religious freedom subverts its own supporting rationales and threatens to cancel itself out.  Laycock’s goal, according to Smith, has been to devise a plausible account of the religion provisions of the Constitution that can be used to resolve contemporary controversies.

Smith raises two criticisms, one secular and one devout.  The first questions why religious belief and conduct should be singled out for special constitutional protection.  Smith explores some of the implications of Laycock’s reasoning and whether it actually answers the question why religious liberty.

Then, Smith examines Laycock’s insistence that all religious expressions by government are constitutionally forbidden, despite such historical practices as appointing a legislative chaplain or declaring a national day of prayer.  As part of this examination, Smith analyzes the different facets of Laycock’s claim that the Establishment Clause contains a principle forbidding religious expression by government, ultimately concluding that the logic is somewhat frail.

Finally, Smith turns to Laycock’s “Puritan Mistake.”  According to Laycock, religion is essentially private choices about what to believe with respect to a set of ultimate questions about God and the cosmos.  So, those who think government should express support for some religious view are demanding that government put its imprimatur on their own essentially private beliefs.  Yet, argues Smith, for many people this position neglects important aspects of faith, such as its communal and even public nature.  So, Laycock commits a version of the error that he attributes to the Puritans and others—people interpret the First Amendment according to how they view religion.  Smith finds Laycock guilty of the same.

Jay Wexler, I'm a Laycockian (for the most part), 89 Texas L. Rev. 935 (2011) (reviewing Douglas Laycock, Religious Liberty, Volume One: Overview and History (2010))

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.

Douglas Laycock, Reviews of a Lifetime, 89 Texas L. Rev. 949 (2011)

In this piece, Laycock responds to reviews of his work by Thomas Berg, Steven Smith, and Jay Wexler.  Professor Smith argues that Laycock has let his views on religion drive his views on religious liberty, a form of the Puritan mistake.  Laycock notes that he is a secular agnostic who respects believers and thinks that both “sides” should win on some issues and lose on others.  He writes that it is only to the extent we distinguish our views on religious liberty from our views on religion that religious liberty can contribute towards solving the underlying problem. 

Laycock has also recasted religious reasons for adopting a regime of religious liberty in secular terms, and Professors Berg and Smith criticize Laycock for attempting to justify religious liberty in exclusively secular terms.  So, Laycock clarifies his position: he does not mean to exclude religious arguments from the public debate or foreclose public officials from relying on religious motivations.  Rather, he means that government cannot announce its commitment to a disputed religious proposition.  Laycock emphasizes that he is not concerned whether government officials have religious motivations, but that the laws and actions of government remain neutral towards religion.

Professor Berg also raises a different objection, which is that the case for religious liberty is weakened when we omit religious reasons.  Laycock notes that he himself emphasizes religious reasons for religious audiences, but he argues that such reasons are useless for secular audiences.  And to justify religious liberty in a religiously diverse society, the reasons given must not require acceptance or rejection of any propositions of religious faith.

Professor Smith criticizes Laycock for counting the alienation of nonbelievers as a reason to keep the government from endorsing religious belief but not counting the parallel alienation of believers who expect government to endorse their beliefs.  Laycock notes that this is only one reason among others for why he thinks government should refrain from taking positions on religious questions.  He writes that it is incoherent to the concept of religious liberty to allow one religious group, such as conservative Christians, to have the right to use the instruments of government to exercise their religion.

Professor Smith also questions Laycock’s resistance to generic endorsement like the national motto.  Laycock notes that, in practice, there will always be a de minimis exception.  Often such generic endorsements are not really that controversial, but Laycock writes that this is less and less true as the nonbelieving population continues to grow.

After addressing several other considerations and objections, Laycock concludes that the criticisms in these reviews will help inform his future work, for which he is indebted.