For more than three decades, Douglas Laycock has been defending “substantive neutrality” in matters of religious liberty, that is, the ideal of limiting government influence on religion by maximizing accommodations. While he acknowledges failures in the execution of these principles (such as persecution of religious minorities), the middle decades of the twentieth century saw a stable, consistent jurisprudence. The infamous “peyote case,” Employment Division vs Smith (1990), upset this balance by shifting the federal standard of legal judgment from substantive to “formal neutrality,” the broadly Rawlsian notion that legal categories should be “religion-blind.” The response to Smith was swift and bipartisan, if not unanimous. The 1993 Religious Freedom Restoration Act (RFRA) recovered pre-Smith protections, but the Supreme Court struck it down as unconstitutional as applied to the states in Boerne (1997). Religious Liberty, Volume Four, Federal Legislation After the Religious Freedom Restoration Act, With More on the Culture Wars, takes up the ensuing conflicts.
On Laycock’s telling, Boerne is where things begin to unravel. The first three parts of this volume look at three major legislative attempts to regain some of RFRA’s standards in a piecemeal fashion. The 1998 Religious Liberty Protection Act (RLPA), which would have applied RFRA to the states, was never enacted, but portions of it reappeared in the 2000 Religious Land Use and Institutionalized Persons Act (RLUIPA), which passed unanimously in House and Senate. At least with regard to “the massive record of hostile and discriminatory land use regulation of churches,” RLUIPA reinstates equal treatment for religion and places justification for “substantial burden” back on the government (299). The 1997 Religious Liberty and Charitable Donation Protection Act (RLCDPA) emerged as a test of the federal constitutionality of RFRA applied to bankruptcy laws that allowed banks to demand refunding of religious donations. These sections contain numerous congressional testimonies, legal briefs, and public letters, the occasional and variegated nature of which could have yielded an indigestibly fragmentary volume. Laycock has done splendid editorial work by providing overviews of each section and subsection, as well as the individual documents, treating the reader to a blow-by-blow, in-the-trenches documentary history of religious freedom debates since RFRA.
Part four consists mainly of academic essays devoted to the moral and cultural issues motivating religious freedom cases, particularly abortion, contraception, and LGBTQI+ rights. Laycock blames the emerging conflict over these questions for undermining the “wall-to-wall” coalition behind RFRA. Many scholars of religious freedom today see the constitutional principles themselves as too ambiguous to supply consistent guidance. For Laycock, the real problem is that each side seeks a “total win,” committing what he terms the “Puritan mistake” of demanding freedom for oneself while denying it to others (733, 692). Religious conservatives have been too willing to impose their morality through law and to persist in a fruitless suppression of the sexual revolution. Secular liberals, having gained the legal and political high ground, are now willing to do the same to the nation’s historical religious majority. Laycock chastises the Catholic bishops for intruding on the rights of others and calls liberal reactions to Hobby Lobby and state RFRAs (Indiana in particular) “hysterical” and a “campaign of lies” (786, 808).
Laycock’s exasperation is plain, as is his sense of isolation—a “voice crying in the wilderness” (832). He condemns both sides, in order to support them. Hence his unique diagnosis: American religious freedom is both overextended and under threat. The solution lies in a proper understanding of the constitutional allowance for accommodations; in all but the most extreme cases, fair treatment is eminently possible. Laycock’s message is simple and quotable: “Moral disagreement is democracy in action” (821).
The kind of moral disagreement presupposed in that statement assumes the legitimacy or recognition of both parties. Laycock’s twin strategies for preserving equal liberty may be self-defeating, however, if they erode that demand for mutual recognition. Consider first the language of exemptions, a generous policy of which is Laycock’s cure-all. Pleading for exemptions to civil rights and anti-discrimination laws has a contradictory effect. The plaintiff gains their liberty under the shadow of moral illegitimacy—their freedom appears as the freedom to discriminate. Laycock’s other strategy is to parry back the claims of both sides, to attack the strong analogy between LGBTQI+ civil rights struggles and those of African Americans, or to draw analogies between Catholic resistance to the French Revolution and the contemporary sexual revolution. His goal is less to enter into the moral debate itself than to disentangle it from the law by forcing each party back a few steps. The utilitarian bent of this tactic does little to secure mutual respect, especially when there is a clear loser (he obviously regards conservative religious views of sexual ethics as heading for cultural obsolescence, but that verdict seems more statistical than moral). Why not argue instead that Roman Catholic moral teaching on sexuality (natural law theory) and expressivist notions of fluid gender identity that frame at least some LGBTQI+ self-conceptions both fall within the reasonable moral pluralism that any democratic state must promote? The law ought to reflect the shape of genuine moral disagreement. I doubt legal pragmatism, if that is really Laycock’s position, will make good on that democratic aspiration.
Still, relocating the moral ground of the debate in this way leaves the deeper challenges of religious liberty undiagnosed. The demographic changes and legal tensions described by Laycock are of a piece, the residue of a collapsed moral and civic consensus, however fractious, upon which the Constitution was balanced. Robert Bellah and, more recently, Philip Gorski described it as our civil religion. Its death amounts to a comprehensive legitimation crisis, and the result is a tectonic shift in the coupling of religion and secular government. The tremors of religious freedom are its most recognizable effect. For decades, Laycock has navigated the subsequent collisions with extraordinary sensitivity and imagination. I think his program will require deeper historical, sociological and philosophical footing if it is to succeed. Let us hope that colleagues come to his side sooner rather than later.
Sean Hayden is assistant professor of religion and philosophy at Tennessee Wesleyan University.
Sean Hayden
Date Of Review:
March 17, 2022
