Bench Memos

Law & the Courts

Douglas Laycock’s Strange Amicus Brief

To follow up on Matt’s excellent post: It’s of course no surprise that law professor Douglas Laycock’s amicus brief in the Little Sisters cases shares the same flaws as his op-ed. Among other things:


1. Laycock concocts a strange claim that the Little Sisters and other petitioners “demand absolute deference on the issue of substantial burden,” and he says that they are entitled only to “substantial deference.” But Laycock’s entire argument miscasts both the terms of the Religious Freedom Restoration Act and the arguments that petitioners are making. In particular, he is conflating the question whether a person is engaged in an exercise of religion with the question whether the government has substantially burdened that exercise of religion.


There is no question that the Little Sisters engage in an exercise of religion when they object to facilitating the provision of contraceptives (including those they might operate as abortifacients) to their employees and their dependents. As the Court emphasized in Hobby Lobby, “the federal courts have no business addressing” whether a religious believer’s view of what constitutes immoral complicity in evil is reasonable:

[I]t is not for us to say that their religious beliefs are mistaken or insubstantial. Instead, our “narrow function … in this context is to determine” whether the line drawn reflects “an honest conviction,” and there is no dispute that it does. [Citation omitted.]

Instead, the courts are limited to determining whether the Little Sisters’ religious objections are sincerely held, and no one disputes that they are. (The amicus brief of Catholic theologians confirms that the Little Sisters’ views of illicit moral complicity are consistent with Catholic teaching.) 

If the Little Sisters refuse to comply with the HHS mandate accommodation, they face massive fines. That’s exactly the substantial burden that the Court found in Hobby Lobby. So under any sound understanding of RFRA, the Little Sisters easily pass this threshold inquiry.

In sum, Laycock’s concepts of “absolute deference” and “substantial deference” on the substantial-burden inquiry have nothing to do with RFRA or the claims in this case.

2. Laycock argues that protecting the Little Sisters would somehow pose a “mortal threat to thousands of specific religious exemptions enacted by the political branches.” But the Little Sisters merely argue, consistent with RFRA, that the federal bureaucracy cannot have a compelling interest in requiring them to comply with the accommodation when it exempts (a) othersimilarly situated religious employers, and (b) large numbers of entirely secular employers. Nothing in this narrow argument presents any credible threat to legitimate narrowly tailored exemptions.

The argument that the existence of a religious exemption for one group will often require a religious exemption for others is not novel or dangerous at all. It has been with us for at least fifty years: In its 1963 ruling in Sherbert v. Verner, the Court relied on the existence of a religious exemption for those who observed Sunday as the Sabbath as part of its ruling that the Free Exercise Clause required the state to provide an exemption for those who observed Saturday as the Sabbath.

Indeed, Laycock himself has repeatedly advanced the same argument, in cases including Church of Lukumi Babalu Aye v. City of Hialeah (1992) and Gonzales v. O Centro Espirita (2006). In his oral argument in Church of Lukumi, Laycock argued, for example, that “what [the city] cannot do is create broad exceptions that eliminate the political resistance to the law and enable [it] merely to target the unpopular religion … they have to treat religion at least as well as they treat favored secular activities.” And in his brief in O Centro Laycock declared:

The current law on peyote is a substantial exception to the government’s asserted compelling interest in universal enforcement of the Controlled Substances Act. Unless the government can show some controlling difference between peyote and hoasca, its claim of compelling interest is defeated by its own treatment of peyote.

3. Laycock declares that he “will leave the details” of how the regulations operate to others, but his lack of familiarity with those details is crippling. He claims, for example, that the Little Sisters and other petitioners “have no right to an exemption for their secular insurers.” But that argument is doubly flawed.

First, what the petitioners object to is that they themselves are being compelled to facilitate the provision of coverage they have religious objections against. Second, most of these cases do not involve “secular insurers.” Most of the petitioners either self-insure (in which case they are the insurer) or are on “church plans,” non-secular benefits plans typically administered by religious bodies. So Laycock’s supposedly “secular insurers” include the Christian Brothers, the health-benefits arm of the Southern Baptist Convention, and East Texas Baptist University. 

Hardly mere “details.”


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