Professor Douglas Laycock of the University of Virginia School of Law is the subject of a FOIA (Freedom of Information Act) request from a rising senior and a recent alumnus of the university. According to the Charlottesville Daily Progress, they seek records indicating:
university-funded travel expenses and cellphone records for the past two-and-a-half years. . . . The students [are] seeking ‘a full, transparent accounting of the resources used by Professor Laycock which may be going towards halting the progress of the LGBT community and to erode the reproductive rights of women across the country.’
A hue and cry has been raised by some who are calling this a “witch hunt” and defending him on the basis of “academic freedom.” Before this debate turns into a free-for-all where no one is listening to the other side, it is worthwhile to examine what academic freedom is and what it is not, and then to consider the obligations of academics who have entered the public square.
I have known Professor Laycock for 20 years. We were on opposite sides of the Boerne v. Flores case at the Supreme Court, where he defended the constitutionality of the Religious Freedom Restoration Act (RFRA) and I argued against it. My client, the City of Boerne, TX, won. For two decades, we have deeply disagreed over what RFRA meant and what it still portends. He has been a staunch defender, and I have been an equally staunch critic. In 1998, he called my concerns about the likely abuses of RFRA “preposterous.” The Supreme Court’s pending Hobby Lobby case and the wave of state RFRA proposals to permit discrimination have proved my predictions correct. I expect we won’t reach agreement anytime soon.
I would tell these students that a FOIA request is unnecessary and unproductive. But that does not mean that they should not question Professor Laycock or any other person advocating for the extreme religious liberty proposals now flooding the federal courts and the states. The issues they have raised are critical to the future of our country, as I argue in the recently released God vs. the Gavel: The Perils of Extreme Religious Liberty.
In a nutshell, academic freedom is a right to be an inquisitive intellectual and to explore new ways of seeing the world without being censored by the institution for being original and thought-provoking. It is intended to foster the pursuit of new frontiers and, therefore, serves the public good. Yet, it is not a refuge within which one can hide from criticism of one’s ideas or their natural consequences.
To be sure, it is a precious privilege from which I, along with millions of other professors, have benefitted. I have been blessed to be employed by Yeshiva University, which is remarkable in its support of academic freedom, even if the University does not always agree with my views on particular issues. For example, the University filed an amicus brief in support of Laycock’s side in the Boerne case while they supported my efforts on the other side in many other ways.
Academic freedom makes it possible to be an intellectual entrepreneur, to be original, and to reject the intellectual orthodoxy that threatens to make universities stale idea factories. Without a doubt, Professor Laycock deserves academic freedom from his university and has used his freedom to establish a distinguished intellectual career.
The Marketplace of Ideas
Professor Laycock has vigorously entered the public square on issues of religious liberty for years. He is no ivory tower dweller. Yet, his views until now have been largely inaccessible to the general public, in part because of the niceties (or not) of legal doctrine and jargon, and due to the black box of the Religious Freedom Restoration Act (“RFRA”). When an academic enters the public square as Professor Laycock has, it is not only legitimate but perfectly acceptable for students, citizens, and others to ask for clarification and explanation so that we will have the robust marketplace of ideas vaunted in the free speech cases and particularly in the case of law professors so that the real world impacts of their views can be understood.
In the public square, in my view, there is an obligation to defend one’s ideas; it is not enough to wave the banner of “academic freedom” and tell critics to go away. I know personally that having to answer to public criticism is not always a pleasant task, as it can err on the side of ad hominem attacks. But it is the price of taking public stances on issues in the contemporary church/state cauldron.
While their FOIA request is misplaced in my view, the students at the University of Virginia are asking, at base, how his public positions play out in the real world, where he operates routinely. In fact, Laycock is not only an academic, but also a political actor deeply responsible for this era of troubling and extreme religious liberty. These students are performing a public service to the extent that they are bringing his influential views to the attention of the public.
Laycock apparently views himself as someone in the middle of the road: “My position is civil liberties applies to both sides. It applies to all Americans.” But I am not sure what that means in light of his history. On one free exercise issue after another, he has sided with a right of religious entities to discriminate. While he has, at the same time, publicly supported same-sex marriage and drawn the line at government support of public prayer, his record on supporting a strong right of religious believers to discriminate seems to be what these students are probing. These students have divined that what may seem to be a good thing—Laycock’s defense of religious freedom—can turn harmful when religious freedom is transformed into a sword that can inflict discrimination and oppression.
Positions That Have Fostered Discrimination by Religious Entities
Religious “autonomy” from the law. Early in his career, in a 1981 article, Professor Laycock proposed that religious entities should receive “autonomy” from the law. This radical and troubling notion has never been adopted by the Supreme Court. It has, however, been aggressively pushed by religious entities, particularly the Catholic hierarchy and the Church of Jesus Christ of Latter-day Saints bishops, who have routinely argued for what they call the “church autonomy doctrine” (even though there is no such thing) to avoid liability and responsibility in child sex abuse cases. In the end, it is an argument and phrase that demands the right to be utterly free of the law, which would mean that the civil rights laws can be ignored by those believers who discriminate.
The right of religious groups to discriminate even if not based on religious belief. His extremism is evident in Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C.,in which he represented a church school arguing that it had a constitutional right to avoid the requirements of the Americans with Disabilities Act. He won. He didn’t just urge the Court to rule in favor of his client against the fired teacher recovering from narcolepsy, but he also persuaded the Court that it should not matter whether the discrimination was religiously motivated. It is one thing for the First Amendment to protect discrimination against clergy based on religious belief, e.g., Catholic beliefs that only men can be priests, but it is quite another to grant immunity to the same church for discrimination based on race. That is precisely the principle Laycock advocated and the Court adopted. He also asked the Court to interpret the First Amendment to strip discrimination protections from many religious employees other than ordained clergy. Again, it agreed.
The RFRA of 2000 and the federal anti-discrimination laws. Laycock represented Archbishop Flores in Boerne v. Flores defending the constitutionality of RFRA. He did not garner a single vote from the Court for his expansive theory of Congress’s capacity to unilaterally alter constitutional rights. He was instrumental, however, in persuading Congress to later re-enact RFRA limited to federal law, without any exceptions for the federal anti-discrimination laws.
The contraception mandate at the Supreme Court: the right to discriminate in a benefits plan based on gender and religion. RFRA’s hidden dangers finally became evident to the general public when secular, for-profit corporations invoked it to deny contraceptive insurance coverage to their female employees. Laycock has taken a position on the side of the corporate interests agitating to impose owners’ religious beliefs on employee health care plans in the Hobby Lobby case. He wrote an amicus brief to the Court arguing that the legislative history shows that corporate actors were to be protected by RFRA—even though it was sold to Congress as a necessary means to protect politically powerless religious believers from discrimination. I disagree, as I explain here, but more to the point, he has taken the side that would open the door for the huge retailer Hobby Lobby to discriminate against its employees according to gender and religion with its health benefits.
Defense of Arizona’s extreme RFRA. Last fall, Laycock published a defense of the notorious Arizona bill that would have permitted religiously motivated discrimination by businesses on a wide variety of bases, including the ability of businesses to deny services to LGBT individuals, minorities, and women. It opened the door to discrimination of every stripe; while Arizona has not yet enacted statewide protections for the LGBT community, major cities have. This would have been the most extreme RFRA yet, and even conservative Republicans like Senator John McCain and Governor Jan Brewer (who vetoed the bill) opposed it. Laycock chose to defend it.
Hiding the Ball and the Mississippi RFRA. A RFRA pretends to restore prior law, but in fact the Supreme Court has never imposed its extraordinary least restrictive means test in any free exercise case, which the Court in Boerne and at the Hobby Lobby oral argument confirmed, as I discuss here. Laycock has routinely downplayed the difference between the previous standards and RFRA’s extreme variation, though he certainly knows the difference. When he represented the Church of Lukumi Babalu Aye, he urged the Court to adopt what would later be the RFRA standard. The Court declined. (Five months later, RFRA was enacted with the standard the Court had plainly rejected in Laycock’s case, in a halo of rhetoric about “restoring” the prior standards.)
The misleading rhetoric continues in the service of discrimination. Most recently, in a letter on his University of Virginia letterhead and on behalf of himself and other academics, he argued that the Mississippi RFRA (which opens the door for businesses to discriminate) was identical to existing Mississippi free exercise protections: “In1985, the Mississippi Supreme Court interpreted [the state Constitution] to provide the very kind of protection for religious liberty that the Act now establishes by statute. See In re Brown, 478 So.2d 1033, 1039 (Miss. 1985)(noting that only ‘compelling considerations”can justify infringing religious freedom’).” Yet, the letter does not mention that In re Brown did not invoke RFRA’s least restrictive means test.
Professor Laycock’s positions have empowered some of the most extreme religious forces in our culture, who are demanding new rights to discriminate in various fora. Their go-to lawyer is Douglas Laycock. You don’t need to file a FOIA request to learn this reality. You just need to follow the paper trail, examine what has been said, and then robustly debate the issues in the true spirit of academic freedom.
If OJ Simpson just wanted to keep some people out of his restaurant, he would have skipped Cochran and went right to Laycock. Professor Hamilton, who has been debating for 20 years about RFRA issues that are just now coming to mainstream media’s attention, offers valuable insight into the incident. Despite such strong feelings, Hamilton speaks unbiased in finding the students FOIA request misplaced and academic freedom warranted, which only strengthens her positions. Maybe the students don’t have LexisNexis or Westlaw, but you don’t need two years of phone records to calculate the extent of Laycock’s efforts to instill his version of the RFRA. Advocates like Hamilton don’t want to witness Laycock’s demise, just for him to stop making up things about the RFRA and telling it to others as a truth.
Prof. Hamilton uses this article largely as an opportunity to re-argue her views on RFRA. But the few paragraphs she devotes to the actual question of the FOIA request are dramatically sparse in analysis, and mostly just involve dark innuendo (“Laycock is not only an academic, but also a political actor deeply responsible for this era of troubling and extreme religious liberty.”). The FOIA question is a far more difficult question than this article suggests, and Prof. Hamilton would do well to acknowledge that fact.
Dahlia Lithwick and Rick Hasen, consistent libs, bluntly say they find the FOIA request a problem. But, Hamilton isn’t here to speak about free speech issues, so I’m not surprised she largely avoids the details.
Professor Hamilton, I mostly agree with your ideas and even bought your book. But I think that the effect that Professor Laycock’s ideas and actions had in the freedom of religion question is not a justification for a FOIA request, even considering that the University of Virgina is a public entity. After all, a public university professor is entitled to academic freedom (or political action, for that matter), and the FOIA request is not a challenge within the marketplace of ideas, but sheer harassment of a political foe. Please, don’t let your objectivity be tainted by your stake in the debate. The cause of the separation of church and state only loses with the unjust persecution of its adversaries.
Brilliant analysis of the dangerous results of Laycock’s theories. He has very thin skin and plays the objective scholar card whenever he is challenged on his political interventions. Volock actually banned me from the religious law listserv when I criticized Laycock’s duplicitous “advice” in the Arizona and Mississippi debates. He was incredibly rude and dismissive of those criticizing his conception of religious liberty, specifically the vulnerability of gay rights, at a recent harvard law conference on the subject. See video here: https://plus.google.com/106968340694429729478/posts/1rTT3Dna4JQ