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
people.
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.
Related Links:
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/