This book is the first in a series of three planned volumes showcasing the collected works (to date) on religious liberty of the US legal academic and practitioner, Douglas Laycock. The book is divided into two overall sections: the first and longest is devoted to overviews of the subject from various perspectives; the second is entitled ‘History’ and presents a ‘long view’ of religious liberty in the context of the Reformation period onwards. Laycock introduces his own articles with some brief contextual commentary at the beginning of each section and at the beginning of each item of his work. The majority of these are articles published primarily in US law journals over the past 30 years, but also includes briefer articles for newspapers, conference papers, book reviews and letters.
Laycock introduces himself as what he considers to be unusual, an advocate of religious liberty, whilst personally agnostic in religion. He is thus well placed to avoid what he frequently refers to as ‘the Puritan mistake’ of seeking religious liberty but only for those causes dear to one's own religion or denomination. His works suggest a clear commitment not only to the Free Exercise Clause of the US Constitution but also the Establishment Clause, and the position of state neutrality which underlies this. He outlines his own preference for what he terms ‘substantive neutrality’ on behalf of the state towards religion (a concept which he fully explains).
The overviews of Part One are preoccupied both with religious liberty issues which were ‘live’ at time of writing (such as whether or not publicly funded vouchers may be used for religious schooling, for which he offers principled support) and with a broader context. On the latter, he clearly locates the question of religious liberty within the context of ‘the culture wars’ inspired by a conflict between increasingly muscular secularism on the one hand, and the effect of what he calls ‘the fourth Great Awakening’ (p xvi), an evangelical revival which, strengthened by a new alliance with Roman Catholicism, has led to a much more robust and organised approach to claiming religious liberties in the US – a series of court battles has been the result.
The articles in this section are a fund of interesting material, including some fascinating vignettes. For example, Laycock refers to a case in Oregon where prison authorities secretly recorded the confession of a murder suspect to a Catholic priest and tried (unsuccessfully) to introduce it into court (p 337). He uses this extraordinary case to reveal the impact of what he sees as the growing general expectation in the US that everyone should conform to ‘secular norms’.
Perhaps the most interesting contribution in the overview section is one which Laycock presents very tentatively; in essence it is an essay in which he seeks to predict future trends (pp 445–462). These predictions include, interestingly, an anticipated decline in religious fervour but an increase in clashes with those asserting gay rights who Laycock expects to be increasingly intolerant of allowing any exemptions for religious believers.
The second section of the book dealing with the history of religious liberty in the US is presented with the clear intention of understanding current controversies in the light of the controversies of the past. Laycock is interested in three historical eras: the Reformation period; the 18th century; and the 19th century. He is arguably at his best in his discussion of the 18th century, where he presents a measured argument in favour of his own interpretation of the ‘Original Intent’ of the framers of the US Constitution in respect of the religion clauses. He rejects the non-preferentialist arguments presented by some and concludes that the founding fathers were truly committed to near perfect neutrality, neither encouraging nor discouraging religious beliefs, albeit that they muddied the waters by only actively applying this doctrine to questions of taxation (p 575).
Overall what emerges from Laycock's work are some clear themes and well-argued positions. The reader can be in no doubt of his commitment to religious liberty and his evident grasp of both the legal and the underlying socio-political issues. His understanding of all religious groups as minorities in American society, and the root problem of government expansion leading to religious conflict, which recur as themes in his works, are both extremely important insights which are rarely articulated so clearly in the UK (where the same is surely true). The book does have some deficiencies. As a collection of works originally written for different purposes, there is inevitably a degree of overlap and sometimes confusing movement from one style to another. These are mostly unavoidable – although in one or two places some more judicious editing might have been useful, not least to remove material which is at best tangential to the subject (such as Laycock's open letters about judicial appointments). In his writing on the Reformation, Laycock is over-reliant on a small number of sources – indeed his knowledge of this period does not emerge as clearly as it does of the later historical periods. There is also a very noticeable absence in Laycock's writing of comparative material; there is a brief reference to the Affaire du Foulard (p 433), but only in an article specifically written for a French audience, and the odd mention of Canadian cases, but overall he is exclusively US-centric. This is a pity as it would be interesting to know what someone as insightful as Laycock makes of religious liberty questions in the UK, for example. As it is, the reader is left to draw the relevant international parallels (which does make for an interesting exercise when reading the work!)
Although the book is relatively long, it is not dense; Laycock's writing is exceptionally clear and pleasingly free of unnecessary jargon. The volume can be read selectively or in full and by a wider audience than legal academics alone. It is to be hoped that volumes 2 and 3 are equally insightful, informative and digestible.
