On Friendship, Tolerance, and Religious Liberty

Guest Blogger

This post was prepared for a roundtable on Wrestling with Religious Diversity, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law. 

Douglas Laycock

Sandy Levinson has been my friend and colleague for more than forty years. We were hired at the University of Texas Law School more or less simultaneously in 1980. We were both in our thirties, we both came with tenure, and we were both deeply interested in constitutional law. I delayed my arrival for a year, because my bride was heavily pregnant that summer. 

Once I arrived, Sandy and I sought each other out. I probably know as much about his views on law and religion from things he has said in private, and on the Conlawprof list serve (private in the sense that I am forbidden to quote it or cite it), as from anything he has formally published. But I will not breach any confidences; Sandy has published his own account of the biographical history I draw on here, in a 1993 lecture at the University of Richmond Law School. 

Sandy is an eclectic essayist, seemingly interested in just about everything—and in problematizing everything. His essays generally raise questions and only sometimes offer even tentative answers or solutions. He accepts nothing at face value, and rarely finds any text clear. He admits to having become a constitutional crank, fearing the many defects in our eighteenth-century Constitution more than he fears a Trumpist or hard-right takeover of a new constitutional convention. 

My approach to scholarship and to lawyering is very different from his. But with respect to the law of religious liberty, Sandy and I have much in common. We are both firmly committed secularists who are broadly willing to protect people with religious beliefs that we often find wildly implausible and, sometimes, abhorrent or even dangerous. Sandy credits personal biography for his religious tolerance, and as it turns out, we share a very similar formative experience.

Sandy and I each grew up in small towns with heavy exposure to evangelical Christianity. He of course never believed any of Christianity’s central claims; his parents were raising him Jewish. I believed without question as a young child, but by about age fourteen, none of Christianity’s central claims seemed at all credible to me. We both had the experience of dropping out of group singing or recitations at critical passages we could not affirm. I once walked out of a high school Christmas assembly that was too religious in tone; Sandy was more compliant and more willing to participate. 

We both concluded that our public schools were acting unconstitutionally. We knew very little of the Constitution at that age, but we were probably right. And we both thought that any form of government aid to religious schools was unconstitutional. I remember being outraged when the Supreme Court upheld the property tax exemption for churches in Walz v. Tax Commission, a decision I now accept as both correct and as clearly preferable to all the problems that would arise from taxing churches. 

Perhaps most important, we both had close friends who were firm believers. Some of Sandy’s Baptist friends feared for his soul; they knew he would be damned for refusing to accept Christ, and it made them sad. I had the same experience second hand; a Missouri Synod Lutheran friend had the same fears for a Jewish friend of ours to whom she was very close. If my friends worried about my eternal future, they never said so to me; I did not wear my disbelief on my sleeve. 

Today, fifty-six years after we graduated, I am still in touch with my Lutheran friend, with another close friend who was then a fervent evangelical, and with another friend who was then Presbyterian but has become, I think, an evangelical now. We were all on the debate team together, and that intense experience led to close and lasting bonds. 

Sandy frequently invokes John 3:16, usually as the crystallization of Christian belief, or at least of evangelical belief. “For God so loved the world, that he gave his only begotten Son, that whosoever believeth in him should not perish, but have everlasting life.” (KJV). To Christians, this is a wondrous and loving offer to all—to “whosoever.” But it looms so large for Sandy because it is also a threat to billions of non-Christians. The negative pregnant in John 3:16 is one of the few texts that Sandy seems to find clear. And the negative pregnant is made explicit two verses later: “he that believeth not is condemned already, because he has not believed in the name of the only begotten Son of God.” What Christians call the New Testament restates this threat over and over. 

Sandy says that he could not believe in a God that would impose eternal punishment on anyone. I had a more specific objection. I could not respect or honor a God that would create beings with a high capacity for intelligent thought and critical inquiry, and then punish them on the basis of what they do or do not find believable. John 3:16 flagrantly violates freedom of speech and thought—which of course, are not at all binding on a God. 

Millions of people believing in a God with an odd and seemingly indefensible criterion for imposing punishment causes little or no harm to anyone else. And when Sandy and I were young, conservative Christians were, for the most part, politically quiescent. Today, conservative Christians lead campaigns to deprive other Americans of important individual rights, especially in matters relating to sex. And evangelicals have inflicted immense harm on the country by voting as a bloc for Donald Trump and his coconspirators. 

But their political opinions and their voting and litigating behavior are constitutionally protected. So too are their religious beliefs, and within quite broad limits, their religiously motivated behavior. I have devoted much of my career to defending liberty for all with respect to religion, and in a surprise to my younger self, conservative believers have been much more in need of defense than my fellow secularists. That may be changing, with conservative believers providing a reliable voting bloc for one of our two major political parties and now, dominating the Supreme Court. Time will tell. However that turns out, you don’t actually believe in religious liberty if you would protect it only for the people you don’t too strongly disagree with. 

So I have argued for regulatory exemptions for religiously motivated behavior, subject to a stringent but not insurmountable compelling interest test. I have argued that when government chooses to subsidize private providers of secular services, including education, it may and must fund secular and religious providers on equal terms. And I have argued for full and rigorous protection of private religious speech, including in public schools. But I have also argued that government should never take sides on disputed religious questions, which means that it should not write or lead prayers, give any sort of special or preferential access to religious speakers, or erect or sponsor crosses, Nativity scenes, Ten Commandments monuments, or other religious displays. 

Sandy has written about these issues only occasionally, but he has come to remarkably similar views, at least intellectually. He appears to be less comfortable with these conclusions than I am, more inclined to make intuitive exceptions or impose limits that may be more emotional than logical as the full implications of these principles are worked out. 

His Richmond lecture is the fullest public exposition of his views on the Establishment Clause. He credits Michael McConnell, and secondarily, me, with persuading him that his early opposition to government funding for religious schools was mistaken. Sandy’s path to this view also led through his commitment to greater socioeconomic equality. If parents have a right to send their children to private schools, as Pierce v. Society of Sisters unanimously held, why should the exercise of that right be limited to affluent parents who can pay tuition without assistance? 

Of course in 1993, Sandy was writing about whether government is permitted to aid religious schools. I don’t know what he thinks about the recent cases holding that if a state chooses to subsidize private schools, it must treat religious and secular schools alike. He recently implied some skepticism about the widely anticipated (and now actual) result in Carson v. Makin. But even in 1993, he appeared to be already moving toward requiring equal treatment. He emphasized the importance of equal rights for low-income parents, and he suggested that requiring them to choose between a religious school and government funding “seems to tread dangerously close to an ‘unconstitutional condition.’” 

On regulatory exemptions, I remember showing Sandy the text of the Religious Freedom Restoration Act shortly after it was proposed. I thought it just codified what the law had been for twenty-seven years; he declared it “a remarkable piece of legislation.” He supported it despite that reaction; here too he says that I influenced him in an important way. 

He still supports religious exemptions in principle, although he seems to be less sure of that position than he once was, and in my view he is too quick to find compelling government interests in the symbolic claims of the progressive side—my side and his side—in the culture-war cases. He has repeatedly said that the wedding-cake case was trivial compared to other issues facing the country, but he has also acknowledged that it was important to the parties. What is hugely important is not the cake itself, but the exercise of conscience, the right to marry and to celebrate the marriage, and finding a way to protect both. On this issue, perhaps his empathetic instincts have failed him. 

Sandy recently reviewed the religious exemption cases, and as is his wont, took few clear positions. But he seemed generally content with what the Court has done as it enforces RFRA and reinvigorates the Free Exercise Clause, except (I infer) that he regrets the cases on religious exemptions from assisting with same-sex weddings or providing contraception. These are a small and unrepresentative fraction of all free exercise cases, but they are by far the most visible, and they generally dominate and distort any discussion. 

In his Richmond lecture, Sandy said that he would not let religious groups impose school-sponsored religious exercises on students in public schools. Neither would I. But short of that, he would affirmatively search for ways to make the public schools more accommodating to conservative believers, in hopes that more of them would remain there and that fewer would exercise their right to leave for private schools or home schools. This view of Sandy’s is partly about avoiding unnecessary burdens on their religious liberty. And it is partly about his hope that bringing students of diverse religious views together in the public schools will tend to induce friendships, understanding, and tolerance, as it did for him and did for me. 

How much do our childhood experiences really contribute to our views on religious liberty today? Possibly quite a lot, although I am more skeptical about this than Sandy appears to be. We both have generally civil libertarian commitments, and religious believers with whom we deeply disagree are within the natural boundaries of those commitments. Evangelical friends did not lead us to become civil libertarians. 

But too many civil libertarians have increasingly drawn lines that tend to exclude conservative religious believers from protection. The Religious Freedom Restoration Act had overwhelming bipartisan support in 1990-1993; a narrower replacement bill mostly died in partisan gridlock in 1997-2000. Most of the secular civil libertarians were opposed by then, or they demanded crippling exceptions that had the easily foreseeable effect of making any bill impossible to negotiate and pass. 

And many secular civil libertarians remain unable to see the discrimination, and the deep intrusion into religious choices, inherent in government funding secular private schools but not religious private schools. They find in the Establishment Clause not just a ban on directly supporting religion, but on supporting nearly anything that is in any way associated with religion. 

Sandy and I somehow escaped those blinders. And it is not, for either of us, because we have the slightest tendency to agree with the believers we would protect. Perhaps it is in part because we better understand how important their faith is to them, and so we are more able to empathize with them. And perhaps that is in part because we had long and even intimate exposure to them. And much more than Sandy, I have known and worked with religiously committed academics, both liberal and conservative, including my bride of fifty-one years. Our deep religious differences have not prevented a long and very happy marriage. 

It is easy to demonize a ranting political preacher. It is much harder to demonize a friend. 

Douglas Laycock is the Robert E. Scott Distinguished Professor of Law and Professor of Religious Studies at the University of Virginia, and the Alice McKean Young Regents Chair in Law Emeritus at the University of Texas. You can contact him at dlaycock@law.virginia.edu.