Professor Douglas Laycock Retiring as a ‘Giant’ in Two Fields

University News

Professor Douglas Laycock Retiring as a ‘Giant’ in Two Fields

April 27, 2023 • By Melissa Castro Wyatt, mwyatt@law.virginia.edu Melissa Castro Wyatt, mwyatt@law.virginia.edu

Laycock participates in a mooting session in preparation for Town of Greece v. Galloway. (Photo courtesy of UVA Law)

Douglas Laycock doesn’t remember all the events surrounding his public high school’s 1963 Christmas assembly – a half-century of appellate litigation, writing and teaching will do that – but he clearly remembers hearing the Christian Nativity story from the Gospel of Luke. And he remembers walking out in protest.

Laycock, who retires in May from the faculty of the University of Virginia School of Law as perhaps the nation’s preeminent expert on religious liberty – and one of its most effective advocates – said an outspoken atheist he was sitting next to helped him take the plunge.

“He said something like, ‘Let’s just leave,’ and I went with him,” Laycock recalled.

The Supreme Court’s big school prayer cases, Engel v. Vitale in 1962 and Abington School District v. Schempp in 1963, had just come down. Those and other Warren Court cases, along with Perry Mason’s television courtroom dramatics, left an impression on Laycock, who grew up in Wood River, Illinois, a blue-collar oil refinery town.

“It was naive, but I thought I was going to argue cases in the Supreme Court and save the world,” Laycock said. “Well, 40 years later I did argue cases in the Supreme Court. I certainly didn’t save the world.”

Laycock will head off to retirement in Austin, Texas, where his sons and his granddaughter live. He retires as the author of a five-volume collection on the law of religious liberty, lead counsel in six Supreme Court cases and the author of 35 amicus briefs filed there, and the leading expert on the law of remedies.

At times he has been the target of both the left and right in the culture wars, and he has represented both sides in court. At the Supreme Court, he represented the Catholic Archbishop of San Antonio and, in another case, Texas parents and students who objected to prayer at high school football games. His work, and a letter of support he co-wrote, built support for the bipartisan Respect for Marriage Act, which codified federal protections for same-sex and interracial marriages while protecting the right of religious organizations not to participate in those weddings.

“I could just as well have been a gay rights lawyer as a religious liberty lawyer,” Laycock mused. “I got pulled into the religious liberty space serendipitously, and of course the gay rights space was well occupied.”

Group photo from left, Laycock, Ed Gaffney of Valparaiso University, Mike Whitehead of the Southern Baptist Convention, Clinton, Steve McFarland of the Christian Legal Society, Brent Walker of the Baptist Joint Committee on Religious Liberty, and Michael McConnell, then at Chicago, now at Stanford.

President Bill Clinton joined a White House meeting on how the administration should interpret or enforce the Religious Freedom Restoration Act. Pictured are, from left, Laycock, Ed Gaffney of Valparaiso University, Mike Whitehead of the Southern Baptist Convention, Clinton, Steve McFarland of the Christian Legal Society, Brent Walker of the Baptist Joint Committee on Religious Liberty, and Michael McConnell, then at Chicago, now at Stanford. McConnell was one of Laycock’s first students.

Still, he wrote amicus briefs supporting both same-sex marriage and religious liberty in the two Supreme Court cases that recognized the rights of married same-sex couples. Laycock achieved all this in the role of the “trailing spouse,” following his accomplished wife, Teresa A. Sullivan, as she climbed the ranks of higher education. Ultimately, she served as the eighth president of the University of Virginia.

His dad once told him he couldn’t “keep following that girl around,” and a rural Illinois cousin tried to “console” him after he left private practice so he and Sullivan could teach at the University of Chicago.

“He said, ‘It’s OK, Abe Lincoln failed, too,’” Laycock said with a chuckle. “But following that girl around has worked out pretty well.”

He and “that girl” have been “very happily married” for 52 years this June, he said.

Shifting Sands on Religious Liberty

Many of Laycock’s current and former law students are in awe of his accomplishments.

“He’s a giant in not one, but two fields, a leading scholar of both remedies and religious liberty,” said Joel Johnson, class of 2015, who went on to clerk at the Second Circuit and now teaches criminal procedure and torts at Pepperdine Caruso School of Law after working as an appellate litigator in private practice.

Laycock’s lectures had a “peek-behind-the-curtain feel to them,” Johnson said. “In a Constitutional Law course I took, he had litigated several of the First Amendment cases we read and he spoke about the cases and the justices the way a Supreme Court litigator might talk with a client.”

Laycock is self-effacing about his career and the impact of his scholarship and advocacy, despite his Supreme Court wins and impact on the field. He won his first Supreme Court oral argument 9-0, in Church of the Lukumi Babalu Aye v. City of Hialeah, a case challenging a set of Miami-area ordinances that prohibited animal sacrifice.

Professor Douglas Laycock talks to reporters

A leading religious liberty lawyer had asked him to argue that case at the 11th Circuit U.S. Court of Appeals because the No. 2 person on his staff was a strong supporter of animal rights.

To Laycock, the animal sacrifice ban was an open-and-shut case that violated the Constitution’s First Amendment guarantee of the right to observe religious customs without government hindrance, also known as the free exercise clause.

“If anything violates the free exercise clause, this did. You could kill an animal in Florida for pretty much any reason you can imagine, but you could not sacrifice it to a god,” Laycock explained. “The ordinances had been very carefully drafted so they affected absolutely nobody in the universe except my clients and their [Santería] religion.”

Laycock would go on to litigate five more cases at the Supreme Court. Although Laycock would not win every case he argued, over the arc of his career the Supreme Court has bent toward an increasingly robust embrace of religion in public life. The guy who walked out of his high school’s Christmas assembly is not entirely happy about that.

“[F]ree exercise’ has gone from the brink of repeal to actually being over-enforced these days,” Laycock said, citing in particular the court’s protection of congregations’ right to assemble during the COVID-19 pandemic.

“In some of the COVID cases, they were analogizing churches to things that weren’t analogous at all – things that posed much less danger of spreading the virus than a worship service does,” Laycock said.

On the other hand, Laycock said, the court seems overly tolerant of things that would have previously violated the First Amendment’s ban on the establishment of state religions.

‘Inside UVA’ A Podcast Hosted by Jim Ryan

“They’re not enforcing [the establishment clause] at all anymore. You can have Christian prayers at government meetings and a 40-foot cross in the middle of the biggest intersection in town and they just rationalize it all as somehow secular,” he said. “Short of passing a law requiring people to go to church, it’s not clear the court would consider anything a violation of the establishment clause.”

Still, Laycock is loath to claim that his life’s work has had a definable impact in the religious liberty arena. He chooses to take pride from the fact that his work was generally unpaid and an act of pure nonpartisan civil libertarianism.

He is most proud that he has always defended both gay rights and religious liberty, that he worked to enforce both the establishment clause and the free exercise clause.

“I’ve always been willing to defend the liberty of people I deeply disagree with,” he said.

You can read an expanded story about Laycock and his life, including his work in the field of remedies, on the UVA School of Law’s website.