Speech emphasizes importance of individual choice in religious liberty cases
CAMBRIDGE, Massachusetts— The Harvard Law Review celebrated
the work of UT Law professor Douglas Laycock and New York University professor
Richard Pildes in its 2003 Supreme Court Forum. Laycock, who wrote the Faculty
Case Comment for the prestigious Supreme Court issue, discussed his findings
at Harvard Law School on Wednesday, Nov. 17 before a crowd of more than 100
Laycock's paper is entitled "Theology Scholarships, The Pledge of Allegiance, and Religious Liberty: Avoiding the Extremes but Missing the Liberty." In it, he places the term's two important religious liberty cases in the context of the Court's broader struggle to define religious liberty.
In the first case, Locke v. Davey, the Court decided that state could refuse generally available scholarships to students majoring in theology taught from a believing perspective. In Elk Grove Unified School District v. Newdow, the Court avoided ruling on whether children in public schools can be asked to say "one Nation under God" in the Pledge of Allegiance.
Laycock's studied opinion is that the court should seek resolutions that protect individual choice and neither encourge or discourage religion. This starting premise led him to argue that the theology scholarships should have been required, and "under God" in the Pledge should have been prohibited. He criticized most interest groups, and some of the Justices, for seeking principally either to promote religion or to discourage religion.
He disagreed with the Court's ruling in Locke v. Davey, because the government penalized individual choice. By guaranteeing funds to study any major except theology, the state in effect paid students not to major in theology. But he thought the Court's contrary decision had been all but inevitable. The Court had long prohibited most public money for education in religious schools, a tradition rooted in nineteenth century anti-Catholicsm and not abandoned in the Supreme Court until a series of decisions in the 1990s and in 2002. Because the Court had only just decided that nondiscriminatory state funding of religious education was permitted rather than prohibited, it was unwilling to immediately go further and decide that such funding was constitutionally required rather than merely permitted. Adding to the difficulty of changing the Court's tradition was the position held by Chief Justice William Rehnquist and others that government funds are controlled by legislators who must negotiate how to best allocate scarce resources.
Laycock argued that the Pledge of Allegiance case should have been controlled by Supreme Court decisions holding that government cannot take a position on religious questions. The Pledge affirms that the nation is "under God," and the daily ceremony asks each child for a personal affirmation of that religious belief. But he noted that the Court had long assumed that some very brief or generic government statements about religion were constitutionally acceptable, and the real question is whether the Pledge falls within this exception. He also noted that the Justices make decisions not just on abstract logic, but also on the potential consequences of their rulings. Laycock indicated that the overwhelming political support of the Pledge, and the hostile national reaction to the lower court opinion invalidating "under God" in the Pledge, made it highly likely that the Court would find a way to avoid striking down the Pledge. The Court's finding that the plaintiff lacked legal "standing" to raise the issue might have been a welcome relief for some of the Justices.
Douglas Laycock is generally considered to be the nation's leading authority on the law of remedies and one of its two leading scholars on the law of religious liberty. He testifies frequently before Congress about issues of religious liberty, and has argued many cases in the courts, including the U.S. Supreme Court. He has represented both ends of the religious spectrum, including the National Conference of Catholic Bishops and clients of the American Civil Liberties Union.
Laycock is also a Fellow of the American Academy of Arts and Sciences and a member Council of the American Law Institute.
Laycock's two page "Religious Liberty: Not for religion or against religion, but for individual choice", pages 44-45 of the pdf: http://www.utexas.edu/law/depts/alumni/utlaw/utlaw_spring04.pdf
About Professor Laycock: http://www.utexas.edu/law/faculty/dlaycock/