In 1981, Douglas Laycock, a young academic, wrote a piece in the Columbia Law Review, arguing for a concept of church autonomy that courts had stumbled toward but never solidly embraced or even clearly recognized. In 2011, Laycock stood before the United States Supreme Court to argue Hosanna-Tabor v. EEOC, a case presenting the question of whether churches really did have autonomy—the specifics being whether churches could be sued by their ministers for employment discrimination or whether they were constitutionally immune from such suits. The Supreme Court ruled in Laycock’s favor and did so unanimously. And so an idea that Laycock had as a fledging academic, an idea he himself later persuaded the court to adopt, became a fixed star in the US constitutional constellation.

A paragraph from Laycock’s opening brief comes to mind: “Religious organizations must be ‘free to … select their own leaders, define their own doctrines, resolve their own disputes, and run their own institutions.’ Corporation of the Presiding Bishop v. Amos, 483 U.S. 327, 341 (1987) (Brennan, J., concurring) (internal quotation omitted).”Footnote ¹

It makes sense that Laycock would cite Justice Brennan’s concurrence in Amos. Up to Hosanna-Tabor, it was probably the best exposition and defense of church autonomy from any justice of the Supreme Court. But do you know to what the “internal quotation omitted” was referring? Here is the same passage with it restored: “Religious organizations must be ‘free to … select their own leaders, define their own doctrines, resolve their own disputes, and run their own institutions.’ Corporation of the Presiding Bishop v. Amos, 483 U.S. 327, 341 (1987) (Brennan, J., concurring) (quoting Douglas Laycock, Towards a General Theory of the Religion Clauses: The Case of Church Labor Relations and the Right to Church Autonomy, 81 Colum. L. Rev. 1373, 1389 (1981)).”

Let me explain, in case anyone has trouble following. Laycock’s mission in Hosanna-Tabor was to convince the court that church autonomy was a real constitutional principle, that it flowed naturally from the court’s existing jurisprudence. Real constitutional principles have real historical pedigrees. So to establish church autonomy’s bona fides, Laycock naturally turned to Justice Brennan’s concurrence. But Justice Brennan, it turns out, had taken his ideas on church autonomy from Laycock. Of course, it would been bad litigation strategy for Laycock to point that out to the court. Thus the familiar “internal quotation omitted.” No, really, Supreme Court, church autonomy was your idea all along.

I was a student of Laycock’s at the University of Texas before he moved to Michigan, then Virginia, and then back to Texas. When I went through, for someone interested in church-and-state, Texas was probably the best law school in the country: Laycock was there, Larry Sager had just been recruited from New York University, and Brian Leiter had not yet left for Chicago. I admire all three tremendously, and I will never forget their help or be able to repay them. I took three classes from Laycock, worked as his research assistant on his Remedies casebook, and did an independent study with him that turned into the academic piece that got me into the legal academy.

Even so, he taught me more indirectly than directly. As a law student, I quickly latched on to how he thought more clearly and wrote more forcefully than anyone I knew. He had a power to persuade beyond that of most other lawyers and academics. The first example I remember was his amicus brief in Good News, a case the Supreme Court heard during my second year of law school. Good News asked whether a Christian club for elementary school students had a right to meet on school property on the same terms as other groups. One side said it would be an impermissible governmental subsidy of religion to allow the club; the other said to refuse the club would be impermissibly discriminatory.

Laycock just saw things so clearly. By the time of Good News, the court had made a fundamental distinction between private religious speech (protected by the Free Exercise and Free Speech Clauses) and governmental religious speech (forbidden by the Establishment Clause). That distinction was so central that the left and the right could not openly reject it anymore. But they kept the battle going, Laycock said, by seeking to manipulate the line under the pretense of accepting it. The left saw everything as governmental and forbidden; the right saw everything as private and protected. (Little has changed on this front; the same set-up describes the situation in, say, Kennedy v. Bremerton. Footnote ²)

Good News Club had been barred from meeting even though it would have been talking about the same things as other clubs. “This is a holding of taint,” Laycock said, “that a discussion of Christian faith so taints the discussion of morals and character development that both discussions are disqualified from the forum.”Footnote ³ Taint is an evocative word, and it evokes in the reader exactly what Laycock wants the reader to feel—that the government here has treated Christianity as contaminated, as dirty, and the government has itself become a little dirty because of it. Laycock found that word; it does not appear in the lower court opinions or in the court’s earlier cases. But there is something about it that perfectly captures Good News, at least from one angle. And when the decision issued, the court used the word taint as well—with no citation to Laycock, of course.Footnote ⁴

But if Laycock persuaded the court, the court was not the only one he persuaded. As a law student, my early intuitions about Good News tracked those of the conventional left-leaning separationist groups. Laycock’s brief gave me my first doubts about the rightness of my positions—neither my intuitions nor the conventional strict separationism I started with could be counted on to be automatically right. I would have to think for myself. Later, as a fellow at Americans United for Separation of Church and State, I was charged with helping to organize Washington’s side of Locke v. Davey and defending its position publicly. But I remembered Laycock’s brief back in Good News, and it created cognitive dissonance for me. Why should Washington’s exclusion of theology majors not also be viewed as a case about taint? I had become different because of him.

It was only after law school that I realized that other people felt similarly about Laycock. A few years after I left Austin, he invited me back to speak on a continuing legal education course he had helped to organize. One of the panels was on the taxation of religious institutions. Someone asked whether the IRS’s rule that tax-exempt organizations not engage in political campaigning violated the Free Speech Clause. Everyone on the panel chimed in with their thoughts. But then Laycock, who was in the audience, raised his hand.

Prefacing his comment with something like, “I don’t know much about this,” he then explained that there must be restrictions on churches, because if political campaigns are not tax exempt and churches are, then political campaigns will quickly learn to run their operations through the churches that support them. The problem, Laycock said, was with the penalty. If a church (or any tax-exempt organization) spends 10 percent of its time and money doing politics, it should lose 10 percent of the benefits that flow from tax-exempt status. But under the IRS rule, they lose all their tax benefits if they cross the nebulous threshold of having done politics too much. The right solution was administratively unworkable; the administratively workable solution was not right.

Everyone on the panel floundered to improve on that. They were experts, and they had undoubtedly thought about the issue many times before, but they had not thought about it as clearly. At the time I was sitting in the audience next to Marc Stern, who was then general counsel for the American Jewish Congress (he is now at the American Jewish Committee). I do not remember Stern’s exact words, but he leaned over and said something to the effect that this was the problem with having Laycock at conferences. He could do almost anything better than almost everyone.

Many people might claim, and deservedly so, to be an expert on the Religion Clauses. But only a few are on everyone’s list of experts, and Laycock is one of the two. He was the first to develop the idea of church autonomy, distinguishing it from notions of conscientious objection, the then-dominant theory of religious exemption.Footnote ⁵ He carefully teased out the various competing ideas of neutrality that all passed under the label,Footnote ⁶ and he did the same thing with the idea of separation.Footnote ⁷ Those pieces cleared things up conceptually, enabling people to talk with greater precision and more productive engagement. But they also came together in a powerful normative vision: that while there are many conceptions of neutrality, and many conceptions of separation, this one is the most attractive. Laycock called it “substantive neutrality.” No matter what it does, the government will have some influence on people’s religious commitments. But the goal should be to minimize governmental influence on peoples’ choices about what to believe, how to practice, and how to structure their religious institutions.Footnote ⁸ This theory was institution-independent. It was a theory not primarily about the constitution’s meaning, or about what courts should do, but about the nature of religious liberty in a liberal state. Substantive neutrality did things—it, for example, offered a powerful religion-neutral account for how religious exemptions could be squared with the equal funding of religious institutions. But more fundamentally, it forced people to account for themselves—either you justified your account of religious liberty (whatever it is) in principled ways independent of your views of religion or you felt a little embarrassed about that.

With substantive neutrality as cornerstone and guiding light, Doug’s work spanned the whole of the Religion Clauses. His work was pragmatic; he did the most he could to advance his conception of religious liberty with whatever tools were available. That pragmatism pushed him into developing some of the best arguments for overruling Smith,Footnote ⁹ while also developing the best arguments for making Smith (if it wasn’t to be overruled) as protective as possibleFootnote ¹⁰—the court adopted his notion of “most favored nation” status almost down to his wording.Footnote ¹¹ His historical works, rejecting nonpreferentialism and noncoercionism and directed squarely at the court, are still two of the best pieces in the field on what the framers intended with the Establishment Clause.Footnote ¹² Often he wrote powerful pieces nominally addressed at the Supreme Court’s most recent case—Employment Division v. Smith, City of Boerne v. Flores, Locke v. Davey and Newdow, Trinity Lutheran, or Masterpiece Cakeshop—that changed our views not only of the individual case but the whole field.Footnote ¹³

His productivity is astounding. His collected works, published by Eerdmans, are five volumes, with each volume about a thousand pages.Footnote ¹⁴ It is a good thing those volumes are out, because much of his work is not easy for the public to access. Folks caught on to his Supreme Court Review piece on Smith, even though it is not on Lexis or Westlaw.Footnote ¹⁵ But far fewer know of his masterful piece about coercion and the Establishment Clause in the Valparaiso Law Review (which, for some reason, is not available on Lexis or Westlaw).Footnote ¹⁶ Historically centered and richly argued, it has stood for more than a generation as the best piece suggesting that the court not require coercion as an element for Establishment Clause claims, as the court has been increasingly inclined to do.

If you dig through the volumes, you will find treasures. The best explanation of the sense behind Watson v. Jones (and why Jones v. Wolf is not the greatest thing since sliced bread) is in an obscure book chapter Laycock wrote twenty years ago with Patrick Schiltz that has only eleven citations on Westlaw.Footnote ¹⁷ His brief to the Texas Supreme Court attacking Texas’s bananas attempt to credential and certify theological seminaries will strike you both as incredibly illuminating and yet so readable your parents could follow the argument.Footnote ¹⁸

And boy can he write. He makes complicated points with simple prose; he quickly dives to the bottom of arguments in ways that expose questionable assumptions; he uses metaphors that crisply convey ideas without dumbing them down. He has an ability to devastate whole trains of thought in a single paragraph. In Holt v. Hobbs, the case about the Muslim prisoner wanting to wear a half-inch beard, the district court had dismissed the prisoner’s claim on grounds that his religious exercise had not been burdened enough—after all, the district judge pointed out, “he had been provided a prayer rug and a list of distributors of Islamic material, he was allowed to correspond with a religious advisor, and was allowed to maintain the required diet and observe religious holidays.”Footnote ¹⁹ Laycock summarized the district court’s position in one sentence and leveled it in the next: “That is, because petitioner could obtain a pork-free diet and order religious materials, respondents could force him to violate his religious obligation to grow a beard. Presumably this would work in reverse; if they let him grow his beard, maybe they could feed him pork every day.” Faced with that in his opening brief, Arkansas just gave up on that issue.Footnote ²⁰

Or take his brief in Hosanna-Tabor. On the question of the ministerial exception’s breadth, the then-dominant position among the Court of Appeals was the “primary duties” test—someone was a minster if their primary duties were religious in nature and they were not a minister if their primary duties were secular, and one made judgments about primary duties by looking at the amount of time spent on them. Working within that frame, the Sixth Circuit said Cheryl Perich was not a minister because she taught religion for an hour a day but taught secular subjects (like reading, writing, and arithmetic) for six. But Laycock pointed out the problem: “If the Church hired a part-time teacher who performed only Perich’s ‘religious’ duties, the Sixth Circuit’s rule would count that teacher as a minister, because 100% of her time would be devoted to ‘religious’ activities. But increase that teacher’s hours, and tell her to also teach history and English, and suddenly she ceases to be important to the school’s religious mission. Surely a teacher does not become less important to the school’s religious mission when she assumes more responsibility.”Footnote ²¹

And that was the end of the “primary duties” test.

Laycock’s wit is sharp, but he goes after people only in going after their arguments. Certainly no fan of Employment Division v. Smith and Justice Scalia’s majority opinion in that case, he responded to a hypothetical of Justice Scalia in oral argument in Lukumi by saying, “If that’s a valid argument, you really have repealed the free exercise clause.”Footnote ²² But he meant it sincerely, not as a punchline. In his Supreme Court Review piece disemboweling Smith, he pointed to Justice Scalia’s dissent in Texas Monthly, a decision written the year before. Justice Scalia in Smith denied that the court had ever given religious exemptions from generally applicable laws, but his Texas Monthly dissent plainly said the opposite.Footnote ²³ It was such a juicy opening, and such a devastating point, that it would have been easy to go overboard—to call Justice Scalia a hypocrite, or snark about his convenient forgetfulness, or to say he cared about Christians and no one else. But Laycock said merely, “He was right the first time,” and left it at that.Footnote ²⁴

Of course, this is not to say Laycock got everything right and nothing wrong. Substantive neutrality sometimes looks like a grand unifying principle for the Religion Clauses, and it is as close as anything we have discovered. But it never completely explained the endorsement test (which he defended), for the government does not really pressure anyone to change religions when it puts up a Ten Commandments display. (Even if there is pressure, it is not really the concept of pressure that accurately captures the problems with governmental endorsements.)Footnote ²⁵ And while Laycock powerfully answered the main theoretical question about exemptions of his day (are religious exemptions inevitably just religious favoritism?), he has not had such a clean answer to the main theoretical question of our day—whether we can really objectively resolve the difficult and somewhat incommensurable conflicts between religious liberty and other deeply held rights. Or, to put it another way, when exactly should religious exemptions be rejected for causing too much harm to others?Footnote ²⁶ Plus, and though this is undoubtedly true for all of us, some of his early suggestions cannot stand the wisdom we have accumulated over the years. In an early piece on tax exemptions for religious schools, he recommends a legislative solution that would have Congress distinguish, by statute, between true religious schools and ostensibly religious private segregation academies: “The simplest drafting solution,” he said, “might be to use a phrase like ‘pervasively religious.”Footnote ²⁷ Yikes!Footnote ²⁸

All the way back in law school, I remember his saying that if academics want to reach the court, they have to write briefs, they have to get involved in Supreme Court litigation. So far, he has argued five Supreme Court cases: Lukumi (1993), Boerne (1997), Hosanna-Tabor (2012), Greece v. Galloway (2014), and Holt v. Hobbs (2015). Three of them—Lukumi, Hosanna-Tabor, and Holt v. Hobbs—were unanimous victories.Footnote ²⁹ People often speak of the importance of dissents, but their true value is best revealed in their absence. Dissents are publicly available and read generations later. But briefs are not, and law review articles are not. So when the court is unanimous and there is no dissent, it has the effect of burying all the contrary arguments. The court’s position becomes obvious, maybe even incontrovertible, and the alternatives become harder to defend or even see. Unanimous victories are unlike other victories; rather than merely beating the other side’s arguments, they obliviate them in the literal sense. Few now remember that the Eleventh Circuit in Lukumi had upheld Hialeah’s ordinances without dissent,Footnote ³⁰ that mainstream organizations (like the Humane Society) took the government’s side,Footnote ³¹ that not even a single congressperson would sign an amicus brief supporting the Santeria,Footnote ³² and that even such a group as the United States Catholic Conference stayed neutral.Footnote ³³ Some had encouraged Laycock not even to seek Supreme Court review, fearing he would lose.Footnote ³⁴

Lukumi might have gone the other way. But students and scholars coming into the field will not think about that; they will simply accept Lukumi and not consider the arguments on the other side. Lino Graglia made those arguments, of course, but he was basically the only one and his piece has not been cited in more than a decade now.Footnote ³⁵ There is no equivalent on the Establishment Clause side. If there was, it would probably be Engel and Schempp, the school-prayer decisions.Footnote ³⁶ But US society does not accept Engel and Schempp in the same way that it accepts Lukumi, creating a perpetual threat to the religious liberty protected by the Establishment Clause. It means a lot that Laycock kept Lukumi unanimous.

It also means a lot that he kept Hosanna-Tabor unanimous. This is more controversial, of course. But for good or ill, part of his legacy will be that the next generation will view the ministerial exception, and its parent concept of church autonomy, as bedrock constitutional principles. That was not foreordained. When Hosanna-Tabor reached the court, the Obama administration was on the other side, along with many academicsFootnote ³⁷ and civil rights groups from the ACLU to People for the American Way and the NAACP.Footnote ³⁸ Hosanna-Tabor could easily have been a 5–4 decision with the partisan valance of a 303 Creative, a SFA, or even a Dobbs. Footnote ³⁹ But Laycock kept everyone on board.Footnote ⁴⁰ A lot of people found Hosanna-Tabor unpersuasive in how it distinguished Smith. In the short term, that seemed a strike against Hosanna-Tabor. But in the long run, Hosanna-Tabor’s unanimity has made it a strike against Smith,Footnote ⁴¹ another part of Laycock’s thirty-year plan. But whether Smith is overruled or not, church autonomy is now an inarguably part of the Religion Clauses, the way that the ban on viewpoint discrimination is part of free speech or the ban on racial classifications is part of equal protection. Students and future scholars will take it for granted, or at least that will be the natural thing for them to do, the path of least resistance. For that, Laycock deserves the credit—or, if you like, the blame.

And he did all this as an academic whose day job is quite different than that of Elizabeth Prelogar or Paul Clement. Law professors are smart folks. But when they do Supreme Court litigation, they can find themselves out of their league—like Michael Jordan playing baseball. Laycock’s briefs do not feel that way, at least to me (though, again, I am no expert). Looking back on his briefs in Lukumi, Ken Karst said that Laycock’s “writing style is distinctive, with a strong emphasis on direct expression.” His briefs were “a first-rate piece of advocacy.”Footnote ⁴² It is easy to think someone who writes good articles can write good briefs, but briefs must deal with the facts of the litigation. And one particularly striking thing about Laycock’s briefs is how skillfully he uses the facts of the case.

Both lawyers and academics can be heavy-handed—and for us academics, the pedagogical nature of our day jobs shapes us more than we realize. Yet the goal is not so much to drive the reader to your conclusion, but to guide the reader to reach the right conclusion, which just happens to be yours. Laycock’s briefs have this feel—he earnestly lays out the facts, explaining them in a simple way that seems even-handed yet subtly moves you, as if by ocean undertow, down the beach to the neutral conclusion he is waiting for you to reach. In Lukumi, that conclusion was that the Santeria were being unequally treated; in Greece, it was that the town’s legislative prayer scheme would have been hard to take for nonbelievers and, indeed, many believers; in Santa Fe (for which he wrote the brief but did not argue the case), it was that the prayers in question had the government’s fingerprints all over them. In one of his pieces, he talks openly about “invert[ing] that sequence”—relying on the facts to drive the reader toward a legal conclusion.Footnote ⁴³

In Hosanna-Tabor, Laycock did something that I have rarely seen—though I am certainly no expert in the ways of Supreme Court litigation. He devoted two full pages of his merits brief to two block quotations from the Joint Appendix. The quotations were from Cheryl Perich’s statement in her job application. In the first, Perich herself writes of how she looks forward to an environment where “the teacher can bring God into every subject taught in the classroom” and how in English class, a student of hers had said that “good people went to heaven,” but Perich guided her away from that by “show[ing] her several scripture passages that tell that we get to heaven through faith in what Jesus has done for us.”Footnote ⁴⁴ The second was of Perich speaking excitedly of staying past midnight on what started as a routine parent-teacher conference so she could evangelize and talk theology.Footnote ⁴⁵ The import of all this was crystal clear before Laycock hammered it home: This was not a secular school and not a secular position, and Perich knew it and she wanted it that way. To sacrifice two critical pages of space in a brief that had to do so many things was risky, but I think it a master stroke. Many were surprised at the Obama administration’s decision to challenge the ministerial exception altogether rather than more narrowly contesting the claim that Perich was a minister. But face to face with those two pages, I am not sure how they could have done otherwise.

More than just the cases he argued, Laycock’s briefs were well-known. He was namechecked frequently at oral argument and by both sides of the court—Justice Kagan in Zubik,Footnote ⁴⁶ Justice Stevens in Van Orden v. Perry,Footnote ⁴⁷ and Justice Kavanagh in Espinoza Footnote ⁴⁸ and Our Lady of Guadalupe. Footnote ⁴⁹ And sometimes when his name did not appear in the official transcripts, one had the sense Laycock got ripped off. Earlier on, I mentioned how in Good News, the court used his language of taint but did not cite him. Justice O’Connor’s opinion in Newdow offered a four-part test for ceremonial deism that looked awfully similar to the four criteria Laycock offered in his brief, just as Justice Kennedy’s majority opinion in Masterpiece Cakeshop looked awfully similar to the brief he wrote with Thomas Berg.Footnote ⁵⁰

And it means something that Laycock did all this as an academic, rather than a professional advocate asserting a party line. Take his brief in Town of Greece v. Galloway. Crudely and unfairly stated, his position was essentially that Greece’s legislative prayers were too Christian. If an identical brief had been filed by someone else, it might have seemed like anti-Christian bigotry. None of the conservatives would have ever said that to anyone, but they all would have thought it or at least felt it. But the fact that he had argued Hosanna-Tabor only two years earlier changes the picture. The conservatives may have seen his argument as absurd, a case of separationists gone wild. But they would not have seen his position as anti-religious, because he was the lawyer who argued Hosanna-Tabor. And then when Laycock came back before the court the following year to stand up for free exercise in Holt v. Hobbs, the fact that he argued Town of Greece corroborated his bona fides yet again. In a polarized world, his constant crossing of the aisle not only helped his clients in particular cases, they helped protect the very concept of religious liberty by shielding it from the corrosive forces of partisanship.

This last point is true of Laycock more generally. The worst may be full of passionate intensity. But the best do not lack all conviction; they simply have convictions that may not line up with the gross political realities of this world. And when they express those convictions, as he did in case after case, they encourage all of us to be our best selves—to find our own maverick convictions and to follow them where they lead.