Prof. Douglas Laycock on the future of gay rights and religious liberties

The Emory Center for the Study of Law and Religion recently posted complete transcripts of the talks delivered at its 25th anniversary conference, From Silver to Gold: The Next 25 Years of Law and Religion, held in October, 2007.

Here is an excerpt from Prof. Douglas Laycock's talk on The Future of Religious Liberty, A Conscripted Prophet’s Guesses About the Future of Religious Liberty in America. Prof. Laycock is Yale Kamisar Collegiate Professor of Law at the University of Michigan. Here is his glimpse of the shape of things to come:

It was the gay rights movement that rallied the broader civil rights movement to kill the proposed Religious Liberty Protection Act. That was a case where the evangelicals were willing to put much more on the bargaining table, surrender much more than the gay rights side was. The evangelicals still lost. Gay rights said we want an absolute exception or we’ll kill the bill, and they killed the bill.

So there will be gay rights laws with absurdly narrow religious exemptions, perhaps eventually with no religious exemptions at all, and there will be conservative believers who impose [sic] enactment of those laws, who resist compliance, who seek exemptions. As the gay rights movement continues to make progress, we are likely to see more and more serious religious liberty issues arising out of its success.

The Constitution and America as a "Christian Nation"

A majority of Americans believe that "the U.S. Constitution establishes a Christian nation," according to a survey done by the First Amendment Center. Thirty-eight percent of respondents "strongly agreed" with that statement, and 17% "mildly agreed."

What should one make of this? Why do a majority of Americans seem to believe something that is so clearly wrong?

I suppose it's possible that at least some respondents didn't understand the question. Part of the problem may stem from the fact that the question posits something undefined. More specifically: what would it actually mean for the U.S. Constitution to "establish" a "Christian nation"? What exactly is a "Christian nation"? How would a constitution "establish" such a nation?

The question seems to presuppose that the Constitution established our nation. It did not. To the extent any document can be said to have established our nation, that document is the Declaration of Independence. The Constitution does not even purport to "establish a nation." The Constitution, more than anything else, is about the nature, structure, and limits of the national government. To be sure, a constitution typically both reflects and shapes the character of a nation, but our Constitution didn't establish our nation -- Christian or otherwise.

What does it mean to be a "Christian nation"? The answer to that question is far from self-evident. Does it mean that a majority of the nation's people consider themselves to be Christian? If that's all that it takes, how would a document like the Constitution ensure that the nation remained Christian? By giving power to the government to expel enough non-Christians so that at least 51% of the population professed faith in Christ? By giving government the responsibility and power to evangelize? Surely this is not what the survey respondents meant when they stated their agreement with the proposition that the Constitution establishes a Christian nation. I sure hope that's not what they meant.

Perhaps being a "Christian nation" means that Christianity and Christian people are somehow privileged, particularly in their relationship with the government? If that's what the phrase means, to say that the Constitution "establishes a Christian nation" is to say that the Constitution explicitly confers such privileges upon Christians and Christianity. But it plainly does not. Indeed, in at least one place, Article VI, Section 3 of the Constitution explicitly forbids the national government from requiring someone to embrace a particular religion as a requirement for serving in the national government. Less explicitly, but not less powerfully, the First Amendment denies government the power to do all kinds of things it might do to "establish" and maintain a "Christian nation." And that is surely a good thing.

Our Constitution limits the power of government when it comes to religion. It presupposes that the church and the state are distinct institutions -- something that was not always the case in Western history. It also prevents the federal government from establishing a national church. It also limits government power to regulate religious exercise and speech. The common theme running through all these realities is religious freedom -- government minimizing its influence on religious choices. That the Constitution guarantees this is a cause for celebration. That the Constitution does not "establish a Christian nation" -- whatever that means -- is not a defect in the document.

The Supreme Court's Use of History in Religion Clause Cases

George Fox University professor Mark David Hall has published a law review article entitled "Jeffersonian Walls and Madisonian Lines: The Supreme Court's Use of History in Religion Clause Cases." It is published in volume 85 of the Oregon Law Review, starting at page 563.

Hall writes that "[t]he primary purpose of this Article is to provide a systematic account of how Justices have used history to help them interpret the Religion Clause." Hall analyzed appeals to history in 115 Supreme Court cases. He observes that Justices are more likely to invoke history in Establishment Clause cases than in Free Exercise Clause cases. Justices most frequently cite the writings of Jefferson and Madison. Hall contends that liberals are slightly more likely than conservatives to invoke history.