This article summarizes several of Douglas Laycock’s important contributions to understanding the history surrounding the Establishment Clause of the U.S. constitution. But even more, the author contends that reflecting on Laycock’s use of history might provide a model for mediating between different modes of constitutional interpretation—especially originalism on the one hand and various normative or anti-positivist theories on the other.

There is likely no law and religion scholar who has done more to shape the doctrine of strict scrutiny as a protection for religious exercise than Professor Douglas Laycock. Since five justices have called the notorious Free Exercise case—Employment Div., Dept. of Human Res. of Ore. v. Smith—into question, Laycock’s work has taken on additional salience. And that is even more true as justices and scholars have asked and debated what test should replace Smith if overruled. Some scholars have argued that the court should abandon strict scrutiny across the board and Bruen-ize the First Amendment—that is, incorporate the newly minted Second Amendment historical-analogue approach from New York State Rifle & Pistol Ass’n v. Bruen into the First Amendment context. In this article, I discuss three important aspects of Laycock’s work regarding strict scrutiny: (1) the textual and historical arguments Laycock has made to support strict scrutiny in the religious exercise context; (2) the important insights he has offered about how the doctrine should operate, particularly with respect to his most-favored-nation theory; and (3) the normative justifications Laycock has offered to support this approach. Building on previous work of mine, I explain additional reasons why strict scrutiny is an important and historically justified doctrine in the free exercise context. I also explain why Bruen’s categorical historical-analogue approach, while potentially useful in some constitutional contexts, would be problematic in the Free Exercise context. More importantly—and ironically—Bruen’s purported historical approach would be contrary to the best textual and historical understanding of the Free Exercise Clause.

In a separate essay, we argue that a right to freedom of religion as it is standardly understood is morally indefensible. In this article, we sharpen this proposition, arguing that there is no account of religion on which there is even a pro tanto right for activities to be exempted from generally applicable regulations—or otherwise privileged over other human projects, commitments, and passions—in virtue of their being religiously motivated. Beyond largely uncontroversial invocations of freedoms of thought, speech, and association, what remains of a pre-theoretical embrace of a right to freedom of religion is best explained by the principle of equal regard. Along the way, we respond to the work of Cécile Laborde and Alan Patten, who both maintain that an equality-centered view of religious freedom cannot adequately protect religion unless religious exercise is understood to be elevated in value over other human projects. In our response, we review our account of equal regard and its application to the kinds of cases that worry Laborde and Patten, showing that equal regard can account for the sense of injustice elicited by those cases. We also briefly address the positive views of Laborde and Patten and suggest that their accounts, and others with the same structure, inherit the problems of more straightforward accounts of freedom of religion.

Douglas Laycock’s theory of substantive neutrality has had much to say about contemporary debates in U.S. law and religion, particularly for courts and scholars grappling with the problem of religious exemptions from general laws. It is fair to say that the U.S. Supreme Court has in many respects adopted Laycock’s approach in free exercise cases. But Laycock’s work on the Establishment Clause side has unfortunately been less influential on the Supreme Court. In the context of Establishment Clause challenges to government-sponsored religious expression, Laycock has argued that the government endorsement of religion through official sponsorship of religious speech violates substantive neutrality because government endorsement of religion encourages religious belief without leaving room for private individual choice. But the court has moved away from any consideration of endorsement or substantive neutrality in cases considering challenges to official religious expression, focusing instead on vaguely-described historical practices and understandings. In this article, the author explains the correctness and insightfulness of Laycock’s theory, which elucidates and justifies the Supreme Court’s now-abandoned endorsement doctrine and explains why the Supreme Court’s current approach to the issue of official religious speech is much more problematic than the substantive neutrality approach.

In Employment Division v. Smith (1990), the U.S. Supreme Court held that neutral and generally applicable laws would no longer receive strict scrutiny review. Many feared that Smith had severely truncated the protection of the First Amendment Free Exercise Clause. Three years later, however, in a controversial Santerian slaughtering case, Douglas Laycock persuaded a unanimous Supreme Court in Church of Lukumi Babalu Aye, Inc. v. City of Hialeah to highlight an important limitation on the Smith neutrality standard. Both “masked as well as overt” government hostility, targeting, or discrimination against religion are constitutionally “suspect,” Lukumi made clear. Recent Supreme Court free exercise cases have emphasized this limitation. Over the past decade, the European Court of Human Rights and the Court of Justice of the European Union are replaying the same story that played out in the U.S. Supreme Court in the 1980s and 1990s and have gradually weakened their religious freedom provisions into a guarantee of government neutrality alone. In their most recent cases, these pan-European high courts have upheld blatantly discriminatory regulations of Muslim and Jewish ritual slaughtering, favoring animal welfare over religious freedom. These courts need to take a lesson from Laycock’s argument in Lukumi that neutrality requires states not to take sides for or against religion and not to uphold laws that have the mere pretense of neutrality while targeting the core practices of religious minorities.

I am grateful to my friends and colleagues who organized and wrote for this festschrift. I have organized much of my work on religious liberty around the principle of substantive neutrality. Substantive neutrality attempts to integrate the whole cluster of Religion Clause values—neutrality, liberty, voluntarism, and separation. Substantive neutrality requires regulatory exemptions for religious conduct, but not when religiously motivated conduct aligns too closely with secular self interest, and subject to exceptions as needed to achieve compelling government interests. If government subsidizes the private sector to provide secular services such as education, medical care, or social services, substantive neutrality requires that the funds be distributed neutrally to religious and secular providers alike. And substantive neutrality requires that government take no position on religious questions. There should be no government-sponsored prayers or religious observances and no government-sponsored religious displays. I disagree with Mark Greenberg’s and Larry Sager’s paper, which argues that religious exercise should be protected only in parallel with protection for other serious personal commitments, under a principle of “equal regard.” Their position overrides constitutional text and ignores the substantial reasons why the Founders protected religious liberty as such. It is also completely unworkable, as they to some extent recognize.