Thinking In Public

September 16, 2020

The Future of Religious Liberty in America: A Conversation with Law Professor Douglas Laycock

Transcript

Albert Mohler:

This is Thinking In Public, the program dedicated to frontline conversations about cultural and theological issues with the people who are shaping them. I'm Albert Mohler, your host, and President of The Southern Baptist Theological Seminary in Louisville, Kentucky. My guest today is Professor Douglas Laycock. He is the Robert E. Scott Distinguished Professor of Law and is also Professor of Religion at the University of Virginia. A graduate of Michigan State University, he did his law degree at the University of Chicago Law School. Thereafter, he taught on that law school at the University of Chicago as well as at the University of Texas and the University of Michigan before going to the University of Virginia.

Albert Mohler:

He is an unusual combination. He is, by my estimation, the most published legal scholar in the scholarly work of religious liberty and is very much a professor of law, but beyond that, he is also a litigator. He has argued no less than six major religious liberty cases before the Supreme Court of the United States and before other federal courts. Professor Douglas Laycock, welcome to Thinking In Public.

Professor Douglas Laycock:

Happy to be here.

Albert Mohler:

I have been following your writings for many years, and to be honest, that's kind of a challenge. As a matter of fact, I set beside me the five volumes published by Eerdmans of your collected writings on religious liberty.

Albert Mohler:

And there's a huge story here. I know you didn't put this together in narrative form, but I'm hoping in this conversation to be able to supply some of that narrative. We have arrived at a moment in 2020 that seems far distant from when you first began writing about the US Constitution, religious liberty and competing interests. Can you kind of trace how we arrived at this moment?

Professor Douglas Laycock:

Well, like all social changes, it's complicated, of course, but I think that the biggest piece of it is the emergence of deep disagreement about sexual morality with traditionally religious folks on one side of that divide and secular folks on the other. And that has carried over into disputes about religious liberty.

Professor Douglas Laycock:

So, if you think about the Religious Freedom Restoration Act, which Congress passed in 1993 to protect the free exercise of religion, that passed unanimously in the House, 97 to 3 in the Senate. And the three weren't really opposed. They just wanted to exclude personal cases.

Professor Douglas Laycock:

And enthusiastically signed by Bill Clinton, religious liberty was still, in the American political system, a fundamental human right with bipartisan support. And that's clearly no longer true. It's become much more of a polarized issue.

Professor Douglas Laycock:

Now, it's easy to exaggerate that, but the disputes over contraception and over same-sex marriage, and to a lesser extent over abortion, have polarized religious liberty discussions, and to a large extent, on partisan terms, putting Republicans on one side and Democrats on the other.

Professor Douglas Laycock:

Now, let me highlight some less-prominent decisions that give somewhat greater reason for optimism. There have been some unanimous wins for the free exercise of religion in the Supreme Court, and the unanimous wins happen when the sexual issues are not on the other side, when there is no strong competing interest group on the other side.

Professor Douglas Laycock:

So, the court unanimously help a minister can't sue her church for employment discrimination, unanimously held that a Muslim person could grow a half-inch beard, unanimously upheld the Religious Land Use and Institutionalized Persons Act, which protects certain interests and rights of prisoners, unanimously protected the right of a small religious group in Santa Fe to use a mild hallucinogenic in its religious services.

Professor Douglas Laycock:

So, there are free exercise wins in less controversial contexts, but whenever you put gay rights or women's groups or contraception on the other side, religious liberties become a polarized and, to some extent, a partisan issue.

Albert Mohler:

Now, years before the Obergefell decision in 2015, the Becket Fund had put together a symposium of legal scholars speaking in anticipation of what would happen if same-sex marriage were legalized. You were a part of that conversation along with several others. I've looked back to that volume many times, and I've actually written about it twice in two of my books. Some of the chapters, the arguments that were presented are absolutely haunting. Yours is fairly prophetic. You really saw this coming. What makes sex different? Because in another one of your articles, you go into several fronts in the so-called culture war: abortion, contraception, and other issues.

Albert Mohler:

But it's the issue of, well, the array of LGBTQ issues, that seem to be different than anything else, and you suggest why. I'd like for you to talk about that a bit. Why is that issue different?

Professor Douglas Laycock:

Well, I think it's because both religion and sex are so personal, so intimate, so important to each individual. They're really fundamental human rights here on both sides, and neither side seems very willing to concede that. And I think, frankly, there's blame to go around.

Professor Douglas Laycock:

But the conservative religious folks, for so long, did not want to recognize any kind of rights for the LGBT community. Same-sex relationships were just flatly illegal. There was discrimination in employment, and much of that was motivated by traditional religious teaching, and I think the religious community has come a long way on gay rights issues, but marriage is still absolutely a non-starter in many religious communities.

Professor Douglas Laycock:

And the gay rights side has responded, to some extent, in kind but with equal or greater intolerance. They don't want any kind of religious exemptions from gay rights non-discrimination laws.

Professor Douglas Laycock:

So, both sides are protecting what is extremely important to them, and seeking to minimize any claim of right on the other side. I think that's what's made these particular issues so difficult.

Albert Mohler:

Well, you are in a rather unique position as something of a ... Well, you style yourself as a traditional political liberal. Your position includes at least a strong strain of libertarianism, so that's to say, you supported the legalization of same-sex marriage, but at the same time, you asserted that there should be an equal recognition of religious liberty.

Albert Mohler:

In that symposium, the issue that came to fore, especially with someone like Chai Feldblum, who was then writing from Yale, later on Equal Employment Opportunity Commission, she said, actually, that ... She could not come up with one hypothetical situation in which the sexual liberty and religious liberty would be in conflict when sexual liberty shouldn't win. And that was well before Obergefell.

Albert Mohler:

This is an amazing moment. And in your own background, did you think then that there could be, just legally, a recognition of same-sex marriage without a direct collision with religious liberty?

Professor Douglas Laycock:

Well, I was naïve. Let me say about Chai Feldblum, she couldn't think of any cases where the religious side should win in a conflict with sexual liberty. She kind of felt bad about it, right? She's the lesbian daughter of an Orthodox Rabbi. She understands both sides. She says, "We need to take both sides seriously," and she was condemned for that on the gay rights side. Right? "We shouldn't take these religious claims seriously," many of her allies said. So, it's nuts.

Professor Douglas Laycock:

I thought that there was no reason for same-sex marriage to produce lots of religious liberty conflicts because it is relatively easy to exempt religious organizations and to exempt religious believers in religious context. And a couple being married doesn't directly affect anybody else in my view. I know that's controversial in some religious circles, but the gay community can be permitted to do its thing and religious folks could be exempted and still allowed to do their thing.

Professor Douglas Laycock:

And I just didn't anticipate how incredibly controversial that was going to be, how much resistance there would be for any kind of protection for religious liberty. I think most people on the gay rights side can see that the clergy doesn't have to do the wedding ceremony, and that's about all they can see.

Albert Mohler:

For now.

Professor Douglas Laycock:

Yeah.

Albert Mohler:

Chai Feldblum, in making that argument, she did kind of sweetly say that she regretted to say-

Professor Douglas Laycock:

Right.

Albert Mohler:

... that she could not come up with one situation in which the religious liberty side should win. But she really argued hard in what I would say was not so much a legal construct but a moral construct about this concept of dignitary harm, and that not recognizing a same-sex marriage or anyone's sexual orientation, authenticity, et cetera, caused a form of harm.

Albert Mohler:

As a legal scholar, how recent is this idea of dignitary harm?

Professor Douglas Laycock:

The idea is very old, but it's been extended in substantial ways in this argument. So, yeah. Back to the founding and before, in the common law of England, you could sue for dignitary torts. It's a battery if I hit you. It's also a battery if I touch you in an offensive way even though you're not injured.

Professor Douglas Laycock:

So, the idea of dignitary harm is not new. The idea that that kind of harm can be a justification for overriding someone else's constitutional right, that's what is new. And for decades, the Supreme Court said the fact that your speech is offensive to somebody else is not a reason to censor it or limit it. People have to just put up with each other's views. And what's new about the Chai Feldblum argument and lots of other folks on the left are making variations on the same argument is, they say the fact that your religious conduct offends me is a reason to limit your religious conduct. And it's not just speech, it's conduct, but the harm it opposes is the same as the harm of speech, right?

Professor Douglas Laycock:

When the baker refers me to another baker for my wedding cake, he's sending a message that he disapproves of what I'm doing. He thinks it's immoral, right? Well, you know, when the gay side complains about that, they send a message to the baker, they disapprove of what he's doing, they think he's immoral, right? Moral disapproval is reciprocal in this context. There dignitary harm on both sides, and the violation of conscience and ...

Professor Douglas Laycock:

If you think about the baker of Masterpiece Cake Shop, he's got to either shut down his wedding business or he's got to permanently surrender his conscience. He gave up 40% of his business. Now, the tangible harm to him is a lot greater than the one time harm to the same-sex couple, and there's dignitary harm on both sides. But what's new is the insistence that the dignitary harm on the gay right's side trumps all competing considerations and overrides constitutional rights.

Albert Mohler:

You know, in the course of Western thought, the public significance of harm has been transformed. And I would point to John Stuart Mill, a seminal figure in bringing that about, arguing that government really has no interest if there is not a harm. It really is a redefinition of morality, at least with public consequence.

Albert Mohler:

And so, in order to bring some kind of charge or a cause to court, you've got to prove some kind of harm. And this dignitary harm is something that shows up ... I mean, just as Anthony Kennedy basically makes it the centerpiece of his argument. It showed up in Windsor, in 2003, and shows up all the way through the Obergefell decision, that the state not recognizing same-sex marriage or same-sex partnerships causes a dignitary harm, a harm to dignitary. And Anthony Kennedy took it so far as to say that the children of same-sex couples would suffer this dignitary harm by the fact that there parents were not recognized perhaps by their peers as being married.

Albert Mohler:

There's a part of me that as a Christian theologian just looks at that and is kind of heartbroken over it because it seems to me that dignity is not something that can fundamentally be guaranteed by a court. The limitations of law come to my mind here.

Albert Mohler:

In other words, if I'm trying to look at this as intellectually distanced as I can, it just seems to me that even though the Obergefell decision legalizing same-sex marriage is not going to be enough to overcome what is claimed in this claim of dignitary harm. And animus about that seems, to me, to be driving, in some sense, what you've well-described. It's like now the revolutionaries have to find every baker who won't bake a cake, every florist who won't make an arrangement.

Albert Mohler:

Is this what's going on? Is it kind of this continued quest for overcoming this harm to dignity?

Professor Douglas Laycock:

Well, I think that's right, and of course, what Justice Kennedy talked about and his opinions is in dignitary harm inflicted by the state in refusing to recognize these relationships, and constitutional rights protect against the state. They do not, for the most part, protect us against each other. And this is a context with competing constitutional rights.

Professor Douglas Laycock:

But I think for the gay rights side, they perceive religious teachings as the principle, remaining source of resistance to their rights, and therefore, they think they cannot legitimate those teachings by allowing constitutional protection for any conduct based on the teachings. And so, you're right. They are trying to seek out every baker, and every florist, and every wedding caterer, and drive them out of the business unless they agree to do same-sex weddings on the same terms as any other wedding.

Albert Mohler:

But I guess my concern is, looking at the pattern, that won't be enough because so long as there are rabbis, and imams, and evangelical preachers, and the Roman Catholic Church and its official teaching defining marriage solely as the union of a man and a woman, that harm to dignity will still continue.

Albert Mohler:

You know, what I sense is that those who are really pushing this cause see religious liberty as something the nation now can't afford. It may have been affordable in the founding era and through some part of the 20th century, but the sexual revolution itself, which is largely all about this argument about dignitary harm or equality, which frankly is a combined argument, it seems to me that the battle lines are inevitable.

Albert Mohler:

You've argued that it need not be so. That's one of the reasons why I've been looking forward to this conversation. You say over and over again, it need not be so. And so, tell me about how you would adjudicate these issues. How would you set out these competing claims, and how would you avoid this head-on collision?

Professor Douglas Laycock:

Well, I said a few minutes ago I was naïve, and maybe I am. As you said, I've got a libertarian streak. I'm not an economic libertarian, but I'm a civil libertarian and I think every American ought to be able, as much as possible, to live his or her life by his own deepest values. And if you start from that premise, it's not hard to work these issues out. You know? We agree to leave each other alone.

Professor Douglas Laycock:

And conservative people of faith observe a gay community living openly among them, and getting married, and they don't much like it, and they disapprove of it, but they let it go on. And the gay community has whole networks of merchants and service providers that advertise for their business. Except in very rural areas and small towns, they don't have any difficulty getting the goods and services that they need.

Professor Douglas Laycock:

And if they'd get, we would hope, politely referred, but in any event, if they get referred to another provider on occasion, they accept that as part of what's entailed in living in a pluralistic community, and they're allowed to exercise their rights, and this baker who referred them also is allowed to exercise his rights.

Professor Douglas Laycock:

And there are a few hard cases in that context. What do you do in a small town where there's only one baker and the nearest other baker is 50 miles away? And my view of those has been, you know, if you're in that sort of local monopoly position, you have to serve everybody and you cannot assert your religious exercise rights. But there aren't many of those cases.

Professor Douglas Laycock:

But there seems to be absolutely no support on either side for that kind of live and let live solution. You know, and I've been the target ... Or, not me personally, but my writings and similar writings of other scholars have been the target of denunciation of both sides that say live and let live is impossible. And they each say, "If you're not totally on my side, you're against me and your conduct ought to be illegal." There is just no political support for that sort of compromise. You know, and-

Albert Mohler:

I want to push back on that just a little, if I may. And at the risk of having to be incredibly clear here, I think conservative Christians, having no option based upon divine revelation other than to recognize marriage as a union of a man and a woman, period ... I think, realistically, five years after Obergefell, I don't sense on the part of Christian leaders any realistic hope that the legalization of same-sex marriage can be reversed without a very wide-spread moral change in the entire society. In other words, it would have to be contextual, and I think it can be argued that legalization was contextual given a moral change within the society and any reversal of that would require some kind of an antecedent moral change in which that would make cultural logic.

Albert Mohler:

So, I'm trying to be clear here. It's not that conservative Christians can be biblically reconciled to same-sex marriage, but I think it's just a fact, you can look across the landscape, that you don't have protests against same-sex marriage coming from evangelicals holding signs on the street corner.

Albert Mohler:

Now, as I want to talk later, that is very much not the case when it comes to abortion in which you do have evangelicals very much along with others with signs out on the street corner. But to get to that in a moment, I heard what you said, there's not much acknowledgement from either side.

Albert Mohler:

I'll just tell you, I don't think the conservative legal movement, the religious liberty litigators in the main from traditional Christianity are filing any suits to challenge Obergefell at this point.

Professor Douglas Laycock:

No. I agree with that. But Obergefell does not require religious conservatives to do anything except to tolerate this relationship that they think is immoral. It's anti-discrimination laws that regulate private individuals, right?

Professor Douglas Laycock:

So, no one has to make a wedding cake for a same-sex wedding unless there is a local law that says you can't discriminate on the basis of sexual orientation in providing services to the public. And that's where the continued resistance is.

Professor Douglas Laycock:

So, you know, there's a bill in Congress ... Never had good chances, I think it now has no chance. Called the Fairness for All Act, and it was negotiated by a group of moderately conservative religious organizations and a group of somewhat-conservative gay rights organizations. And it sort of went through all the federal discrimination statutes, added sexual orientation and gender identity to them, and then carved out religious exemptions to protect the most important exercises of conscience in each of those contexts.

Professor Douglas Laycock:

And that's the sort of legislation that's been denounced by both sides, right? And we've got 20-something states with no gay rights law and no prospect of enacting one, and Republicans for the most part don't want to add a gay rights law in their states, and Democrats for the most part would not accept a gay rights law that had any religious exemptions in it. So, it's in a debate over the scope of non-discrimination rules that this mutual refusal of compromise shows up.

Albert Mohler:

It's very sobering to consider that many of those frontline cultural issues that now make their way to the Supreme Court and are a part of constant headlines and conversations or issues that the framers of the United States Constitution could not have envisioned whatever matters of public controversy much less of a Supreme Court adjudication.

Albert Mohler:

Issues like abortion, contraception, not to mention something like same-sex marriage. Just imagine the irony of trying to explain that to Alexander Hamilton, George Washington, and James Madison. The reality is, it just tells us how volatile these issues are now and how difficult it is to try to adjudicate these issues on the basis of a constitution that was ratified at the end of the 18th century. And so, the reality is that there's a regime of newly-invented rights, these rights going back to the right to privacy and the Griswold decision from the 1960s onward, Roe v. Wade, and then, of course, the gay rights decisions as well that are a part of this.

Albert Mohler:

This puts us in a terrain in which you have the established rights in the Constitution, the enumerated rights, the protected rights honored so much as to be in the First Amendment of the US Constitution: religious liberty and freedom of speech, freedom of assembly, and you look at the entirety of the Bill of Rights.

Albert Mohler:

But the reality is that in many ways these newly-constructed rights are pushing out the established and articulated rights in the Constitution. Religious liberty is the nation's first liberty. Douglas Laycock has been on the front lines of the conversation in this transformation of law, perhaps more than any other single legal scholar has contributed to it, but as I said in the beginning, not just as a scholar and a law professor, but as a litigator, an attorney before the Supreme Court. That puts him in a very unique position to be able to both observe and speak to these issues.

Albert Mohler:

Well, this is a situation, to me, hauntingly parallel to the situation with the contraception mandate that came with ObamaCare. The Fairness for All, and I think it may have been originally known as the Utah Compromise because it really began there, failed, I think, on my side, and I opposed it because it was so limited in the religious exemptions. And Utah is kind of a unique case given the influence of Mormonism there, but Mormonism and even Roman Catholics, to some extent, can make some distinctions Evangelicals cannot well make consistently.

Albert Mohler:

Let's put it this way, we require a larger recognition of exemptions just because we don't have the ... We're not just looking to protect clergy and churches, but rather, Christians in the marketplace and Christian schools. I speak of this as president of a Christian institution. That law would be very, very thin in offering protections to a Christian university.

Albert Mohler:

And the second concern was that it didn't seem to me it was entered into with good faith, and I don't mean that by the parties who were sitting around the table, but by the fact that many of the people who celebrated it knew at the time that many in the LGBTQ movement were saying, "We will not sign onto this." In other words, they repudiated the people who were involved as being sell outs. And so, it just seems to me to be very unstable.

Albert Mohler:

The parallel I made with the ObamaCare contraception mandate has to do with the exceptions. If the Obama Administration had made those exceptions more generous, we wouldn't be talking about it now. And you deal with this in your own writings, and yet, there's much more energy on the LGBTQ intersection than on these other issues. So, I appreciate you bringing up Fairness for All. I was one of the opponents of it amongst evangelicals, simply because the grounds were too narrow, but I probably then just add to your frustration.

Professor Douglas Laycock:

Well, to some extent, but the arguing over the breadth of the exemption is not the principle problem. The breadth of an exemption is the sort of thing that can be compromised. And at some point, disagreements over breadth become not much different from disagreements over principles. Two sides can be so far apart that there's just no prospect of any kind of deal.

Professor Douglas Laycock:

But what really frustrates me are the people who say, "I don't want to talk about the breadth of exemptions," and "I don't want to talk about non-discrimination laws." The idea of this kind of a deal is, "We reject in principle. We cannot legislate any rights for the other side," that's the most frustrating thing.

Professor Douglas Laycock:

Now, once you get past that, disagreements over breadth can also turn out to be insuperable, but there at least there's room to talk about it and see if we-

Albert Mohler:

Well, the fact is that I think honest people, including cnservative Christian leaders across the United States, recognize that these equality laws are ... Again, they're basically the next car in the train in the way culture moves. And so, the question is not whether there will be or won't be. Eventually, jurisdiction by jurisdiction ... I'm talking to you from Louisville, Kentucky, where there has been such an ordinance in place since 1999. The question is: How is that going to be defined? And then, how will it be adjudicated? And the situation is not hopeful. I can tell you. From where I sit, it's just not hopeful. You have-

Professor Douglas Laycock:

Well, it's not. So, you know, I've been saying for years there's sort of an obvious deal to be done, you pass the gay rights law with strong religious exemptions. You know, much of that deal is off the table now. The Supreme Court's decision in Bostock interpreting federal sex discrimination laws to include sexual orientation, enacts the gay rights side of that deal without enacting any religious exemptions, right? So, that's all left to litigation now. And if it's a federal law, it makes much less difference where there's state law.

Professor Douglas Laycock:

So, there's now employment discrimination protection in every state for employers of more than 15 employees, and the lower courts will quickly extend that reaching to all the other federal sex discrimination statutes.

Professor Douglas Laycock:

Now, the federal public accommodations law does not apply to sex discrimination and it applies to a very narrow and short list of what counts as public accommodation. So, public accommodations is left to legislative compromise going forward, but everything else is pretty much left to litigation. So now, federal law will prohibit sexual orientation discrimination in employment, and housing, and most other contexts, and the litigation over religious exemptions will not be, "We got a specific exemption in the law," it will be under general provisions like the Religious Freedom Restoration Act and the free-exercise clause.

Professor Douglas Laycock:

And you mentioned the Louisville ordinance, that's an important example. You know, we say that nearly half the states have no gay rights law, but the major cities in those states mostly do have gay rights laws. Now, the enforcement mechanism for local ordinances have traditionally been a lot weaker than from state or federal law, but that could be changed, and those local ordinances are there in most places.

Albert Mohler:

I don't know if you are aware or not, but there was a federal district court case, at least a preliminary injunction, that made news here in Louisville having to do with a Christian wedding photographer who had been investigated by the Human Rights Commission and that was really being brought forward with the prospect of prosecution in light of the Fairness Act.

Albert Mohler:

And Judge Justin Walker of the federal district court here basically made your argument. He said, "There is no inevitable collision between same-sex marriage and religious liberty," and actually, I think was if not citing you, then basically making the very same argument. He, by the way, has just been confirmed to the DC Circuit.

Albert Mohler:

But it will be interesting to see how things proceed from here because the City of Louisville came right back and said, "Well, that decision or injunction notwithstanding, that case, kind of put in abeyance for a moment, we're going to continue to follow the very same procedures we've been following and prosecute just as we've been prosecuting." And it's a political reality here. I mean, you look at the City Council and you look at the basic liberal culture of the City of Louisville, that makes political sense.

Professor Douglas Laycock:

Yep.

Albert Mohler:

You've made the argument that abortion is different. I really would like to trace that out with you just a bit, because you look back to Griswold and the contraception decisions of the 1960s. And then, 1973, Roe v. Wade drops, and as you say, there's really no adjudication after that. There's no peace after that because we're looking at two absolutely incommensurate claims. I'm ardently pro-life, we're talking about the non-negotiable value of unborn human life, and on the other side, you've got this absolute argument about the supremacy of the claim of a woman's bodily autonomy.

Albert Mohler:

So, what are the lessons from that now a half-century, virtually, after Roe? What does that tell you about American society?

Professor Douglas Laycock:

Well, I think ... Yeah. We started out with gay rights a few minutes ago saying, "This is so important and so intimate on both sides," and when you shift to abortion, that's true even more so. Right?

Professor Douglas Laycock:

So, it is hard for the religious side to maintain a fever pitch over gay rights because, for the most part, they're really not affected by it. It's other people living lives in ways they disapprove of, and the occasional enforcement of an anti-discrimination law like the wedding baker in Colorado, your photographer in Louisville. Those are genuine problems, but for the most part, the gay community goes on in its own way and there's no victim to same-sex marriage.

Professor Douglas Laycock:

There's an obvious victim to abortion, and the pro-life communities cannot let go of that. And on the woman's side, the unborn child is invasive in a way that we would not tolerate from any other human being, so even if you say the fetus has the full right of a human, no one has the right to invade another's body in that way.

Professor Douglas Laycock:

So, these are utterly non-negotiable claims on both sides. And you know, I've said to my students, we're not still going to be arguing about same-sex marriage 50 years after the decision. We're still arguing about abortion 50 years after the decision, and there's no end in sight, and I don't think there'll be an end until and unless the majority on one side of the other gets a lot bigger than its ever been.

Albert Mohler:

Yes. Professor Laycock, the language you just used there describing the pro-abortion side is the worst nightmare of the pro-life movement. I've confronted that argument many times about the invasion of one body by another. It just strikes me that, at a far deeper level than an issue like abortion or sexuality or marriage, we really do have a divide in this country over just basic moral impulses. And it makes me wonder how a society that declares itself to be pluralistic, how it can hold together? And law is one way that holds us together, and litigation is one part of that process.

Albert Mohler:

I just have to say, as a Christian involved in the pro-life movement, even hearing you describe that argument just causes me grief. I find it very difficult to see how there could even be much of a meeting around a table on that.

Albert Mohler:

But we're nearly 50 years after Roe v. Wade. What do you predict 50 years after Obergefell? What do you think the nation looks like on the landscape of anti-discrimination law and precedent and respect for religious liberty?

Professor Douglas Laycock:

Yeah. I fear that in 50 years, the argument on abortion will advance not at all except maybe technologically. But I think the argument on gay rights is likely to gradually fade away. That may be another bit of naivete on my part, but yeah. The more same-sex couples there are among us, the more ordinary Americans know such a couple and it's someone that they liked, or were friends with, or admired before they found out about the sexual orientation, the more those relationships become familiar and seem to do relatively little harm to others, I think that fewer and fewer people are going to be strongly objecting.

Professor Douglas Laycock:

As you said a few minutes ago, there's no active effort to try to roll back the decisions on same-sex marriage, partly because there doesn't seem to be much prospect of success, but also, I think partly because there is no unborn child, there is no obvious victim to those marriages.

Professor Douglas Laycock:

I would hope ... But I'm not optimistic about this, I would hope that as resistance fades on the religious side, the gay rights side will feel safer and more willing to be tolerant for those resistors that remain, but I'm not optimistic about that.

Albert Mohler:

Yeah. And I want to be clear that the conservative Christian concern in this is not something that's gone away. It's not coming to peace with same-sex marriage, theologically or morally. I do think it's the recognition that the legalization of same-sex marriage came only after massive shifts in the morality of the society and is likely to be reversed only because of massive shifts in the society.

Albert Mohler:

And it comes down also to legal prospects. I mean, I think there's an honest calculus right now. And, I think one other thing I'd have to throw in the mix here is that, if you go to the average congregation of evangelicals, I think, or if you were to talk to the US Conference of Catholic Bishops, I think precisely because of the unborn victim, there is a sense of urgency on the abortion issue that actually means that's where most priority is going to be put legally. And after Casey, that Supreme Court decision, at least there's the prospect of enacting state-by-state restrictions on abortion that can withstand that scrutiny. And look, for the pro-life movement, that means save lives. It's not just a legal win, it's a matter of life and death.

Albert Mohler:

In your writings, you have had long experience in talking about how these issues could be adjudicated, and then, of course, you deal with the fact they are adjudicated. You've made some of these arguments in court.

Albert Mohler:

Where do you see the nation, because you have to take this into consideration, where do you see the nation headed in moral terms with the law as a representation of that morality? You know, what is the basic moral code that is driving the country?

Professor Douglas Laycock:

I'm not sure the answer to that. I think that, for the most part, the moral disagreement is about sex and most other traditional moral teachings haven't changed much. You know, we don't disagree with murder, or robbery, or fraud, or cheating other people, but we very much disagree about sexual morality, and that's driving most of the division.

Professor Douglas Laycock:

Now, one caveat I would add to that is the disagreement about sex has spill-over effects in some ways, right? I think it has made the word "morality" a suspect word in parts of the left, right? If you talk to my students, they don't think of murder, and theft, and cheating other people, and being unkind to your neighbor as moral issues. Maybe they're ethical issues, but morality is about the part we disagree about, and the state shouldn't legislate morality, or so they say, and there's a resistance in parts of the left to teaching even the uncontroversial moral values.

Professor Douglas Laycock:

I don't know where that leads. I worry about it. But I do think the moral dissent is mostly about sex and not so far about very many other things.

Albert Mohler:

You know, you mentioned where I want to go here for just a moment. You're in an elite context there at University of Virginia. You've been in many other elite universities: Chicago, Michigan, Texas. There's a sense in which your social context there points to the future.

Albert Mohler:

The conversation we're having ... I just want to ask. Would this even be a conversation that would be of much interest on a campus like the University of Virginia, or is this just a professor at the University of Virginia talking to a Baptist theologian in Kentucky? In other words, it seems to me that, as I look at the academic context, that world doesn't even contemplate these questions very much.

Professor Douglas Laycock:

Well, I don't think that's true. I think that's a bit of a stereotype. We absolutely have these conversations. Students are very interested in these conversations and they're divided in the same way the country is divided.

Professor Douglas Laycock:

I think most universities have, in the faculty, a skew towards the left. Not as strong as its widely-perceived, but certainly a skew. And they have some very vocal people who are kind of on the far-out crazy left, and their visibility and presence and some of the stupid things they say tar the whole institution, and we all get blamed for them. They're kind of a fringe, even in academia.

Professor Douglas Laycock:

So, law schools may be special in some ways from the rest of the university because there's so much legal content in the issue we've been talking about, and so, law students are naturally interested. And I get asked by students with some regularity to come speak about these things or be on a panel where faculty are expected to disagree on these things. And we have a student Federalist Society which tends to be conservative, and an American Constitution Society which tends to be liberal. We have a very active pro-life group at Virginia and at most other major universities, Catholic Student Organization, the Christian Legal Society, and so on and so forth.

Professor Douglas Laycock:

So, this conversation absolutely goes on in law schools, and to some extent, in the undergraduate college as well.

Albert Mohler:

Well, that's a very interesting word, and I take it from you having a front row seat in that conversation. I can tell you that what I'm really talking about is the fact it would be very, very constructive, I think, if one of these major universities like the University of Virginia, or Michigan, or Chicago, or Harvard, or Yale, or just about anywhere, would actually bring these questions to the forefront in a public way even in a symposium.

Albert Mohler:

In other words, I can tell you that almost all the symposium conversations are prompted by the pro-life or by the conservative Christian and Catholic side. There's no invitation to such conversation, at least to my knowledge, coming from elite academia which does, at least appear to me, I have to say, to say, "These are questions that are settled. We're moving on."

Albert Mohler:

I'm glad to know, internally, that there's some of that conversation going on. And I think there’s incredibly courageous, faculty members. And there's still the residue of the idea of the university and a place where ideas ought to be exchanged. I hope that continued.

Albert Mohler:

Professor Douglas Laycock, you have contributed so much to this conversation, nationally, for so long, and I just want to tell you, I’ve kind of had a conversation with you going on for a number of years now through your writings. It's been a genuine pleasure to have this conversation in person. I really appreciate you joining with me for Thinking In Public.

Professor Douglas Laycock:

Well, you're very welcome.

Albert Mohler:

Well, that was a conversation worth having. It's a rare opportunity to talk to someone who has that experience, both in writing about religious liberty over the course of decades and litigating it before the nation's courts, being very much a part of the public conversation, and I would say, courageously so.

Albert Mohler:

And once again, when you're just thinking about one individual's contribution to this discussion, I just point to these five volumes on religious liberty. I don't think there's any other scholar who's written anything equal to or even close to what's here. There are many other religious liberty scholars who have vast influence, but ...

Albert Mohler:

This is a reminder to us that the Christian worldview tells us that ideas are not to exist in a culturally-meaningful way in the ether. They are existent in human beings. And each of those human beings is an individual made in the image of God and demonstrating a particular individuality.

Albert Mohler:

When it comes to Professor Douglas Laycock, it's a unique combination, morally libertarian in so many ways--kind of a classical political liberal. Not standing in the same position as most conservative Christian evangelicals, or even of those who are represented on the religious side in these religious liberty cases. This is someone who had been an advocate for the legalization of same-sex marriage, and did so because of his understanding of moral liberty and constitutional law, but who, at the same time, long before the legalization of same-sex marriage, did at least foresee this inevitable collision.

Albert Mohler:

Now, what was interesting was that he spoke of the fact that, in his own words, his optimism may have been naïve in thinking that this collision could be avoided. I tend to come from the position that says when you're looking at two absolutely incommensurate interests and irreconcilable positions, the opportunity for compromise is temporary, thin, and pretty soon transparently gone. And I think that's where we are. And we are looking at two absolutely incommensurate claims. Fascinating in the conversation when we turn to abortion, it's exactly the same thing. It's an absolutely incommensurate claim.

Albert Mohler:

But here's where, as a Christian theologian, I have to back up for a moment and say, "We ought to really look at what it means, culturally, for those claims to be irreconcilable and for our culture to say they're incommensurate." Well, let's put it this way, when you consider the abortion claim made by the pro-abortion side, you heard Professor Douglas Laycock lay out the essential argument. It's saying that even if the human identity and personhood of the unborn child were to be recognized, it would still be seen by those who argue for abortion as if this is an alien invasion which would not be tolerated under any other circumstance.

Albert Mohler:

Now, he didn't come up with that argument. That argument has been used by the pro-abortion side. I think most pro-life Christians in the United States have no idea of the nature of that argument. And as I said, it's heartbreaking. But we are, as a society, now living together to one degree or another with people who believe that every single human life is sacred in the womb and at every point of human development until natural death, and those who believe that the unborn child can be seen as a unconstitutional invader of a mother's womb.

Albert Mohler:

Now, how in the world does any legal system adjudicate that? How in the world does any constitutional order settle those claims? I think this conversation is a very frank and honest, at least it is for me, assessment of fact that there's a far deeper problem in this society than the Supreme Court is going to be able to solve. This is going to require greater than Solomon, and we don't have Solomon. And it's a moral problem, and we as Christians understand it's a theological problem. When we come to the issue of same-sex marriage and the larger issue of gay rights or, now, just style it as LGBTQ, again, it's becoming a matter of inevitability case-by-case.

Albert Mohler:

Now, Professor Laycock said that by his observation both sides are refusing to compromise. And of course, we are looking at two starkly contradictory arguments, but I have to say that in the main with the exception of some state and local controversies, the reality is that in a nation-wide context, cultural conservatives are not in the driver's seat. It's those who are driving the LGBTQ revolution. And when you understand where Christians see this, we have to understand that all these court decisions all the way to Obergefell or Bostock at the Supreme Court, they don't come out of a moral value. They come only because of vast moral change in the United States, and that's antecedent to, that was pre-requisite to the decisions that came, and unless there is a massive change in the American conscience, we're not likely to see a reversal of these issues.

Albert Mohler:

That doesn't mean we don't have a responsibility to contend for it, because after all, the major concern for Christians can't be the US Constitution. It has to be the truth of God's Word. It has to be the power of the Gospel. We have the preaching of the Word of God. And look, our first challenge as Christians is not to make these arguments in the public squares, as essential as that is, but to make these arguments in our homes and in our churches, and make them in the public understanding there will be public consequence and we're going to have to deal with those consequences.

Albert Mohler:

We're also facing a stark challenge. And the honesty of Professor Laycock is precisely why I wanted to have this conversation with him. And as we bring this conversation to a close, I want to turn to one of his more recent writings where he's dealing with many of the cases of current controversy here, and in particular, when you have the collision between religious conservatives and the gay rights movement, or the LGBTQ movement. He writes this: "Those three cases tell us that if there's no opposing interests that progressives care about, we can still come together and generate broad support for religious liberty." Notice the key issue there: "If there's no opposing interests that progressives care about." But then he goes on to say, quote, "But as soon as any other interests that progressives care about comes into play, the religious liberty claim generally loses."

Albert Mohler:

Now, if those aren't haunting words, I don't know what words would haunt you. But we're looking at an honest assessment here, and it's good that we know where we stand. And armed with that, it just underlines how much work we have to do, so let's be about doing it.

Albert Mohler:

Thank you for joining me for Thinking In Public. Once again, let me express my appreciation to Douglas Laycock for joining with me for Thinking in Public today. If you enjoyed this conversation, just go to albertmohler.com, look under the tab "Thinking In Public," and you'll find more than 100 of these conversations, every one of them a privilege. For more information about the Southern Baptist Theological Seminary, go to sbts.edu. For information on Boyce College, just go to boycecollege.com.

Albert Mohler:

Thank you again for joining with me for Thinking in Public. Until next time, keep thinking.

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