I Don’t Agree with Dahlia Lithwick on Much . . .

But I agree with her on this, and I write this post as a supporter of same-sex marriage:

Agree or disagree with him, University of Virginia law school professor Douglas Laycock has had a lengthy and distinguished academic career. As a scholar and advocate in the constitutional field of religious liberties, he has taken positions that have alarmed both the political left and the political right in about equal measure. He is currently representing a Muslim prisoner who wants to be able to grow a beard, in violation of prison regulations. He co-wrote an amicus brief in last year’s blockbuster United States v. Windsor, arguing that states should all afford citizens the right to same-sex marriage. He argued Town of Greece v. Galloway on behalf of objectors to sectarian religious prayer before town legislative meetings.

But because his constitutional principles don’t necessarily dovetail with set policy outcomes, he also filed an amicus brief on the side of the religious business owners in the Hobby Lobby case now pending at the U.S. Supreme Court. Perhaps more controversially, he authored a letter on behalf of a group of religious liberty scholars to clarify the scope of SB 1062, a much-publicized Arizona law that would have given individuals and businesses broader latitude to opt out of state anti-discrimination laws if they opposed gay rights on religious grounds. As he explained at the start of that letter, many (unspecified) signatories supported same-sex marriage, and many urged Gov. Jan Brewer to veto the bill, which she ultimately did. The point of the letter, as indicated upfront, was not to support the bill but to correct misperceptions about what the proposed bill did and did not do. In Laycock’s view, the Arizona bill did not say the religious objectors win, but rather afforded them new defenses that would be settled by courts who would still have to determine that religious objections overcome a “compelling government interest.” Scholars agreed and disagreed about the merits of that argument, but it was never an argument for blanket protections for discriminating or discriminators.

Still, it was enough to fire up two Charlottesville activists, who, backed by a national LGBTQ rights advocacy group, GetEQUAL, decided to go after Laycock, according to this report in last week’s C-Ville Weekly. The two young people, one a rising senior and another who is now a UVA alum sent an “open letter” to Laycock asking him to consider the “real-world consequences that [his] work is having.” Then they submitted a Freedom of Information Act request, asking to see emails and phone records between Laycock and various right-wing and religious liberty groups. And, according to the C-Ville, GetEQUAL has also launched a national email campaign calling out Laycock for his role in shoring up the legal arguments of those who support “religious bigotry.”

This entire episode constitutes an attempt to attack academic freedom, and it should be called out and condemned as such. Whether one agrees or disagrees with Laycock’s arguments, the fact of the matter remains that his clients deserve zealous and expert counsel, and no lawyer should be penalized for offering zealous and expert counsel that respects the rule of law and the ethical rules that bind attorneys. Hilariously enough, the initiation of FOIA requests has been termed an attempt to engage “in dialogue” with Laycock. Nothing could be further from the truth. This isn’t an attempt at dialogue. It is an attempt at intimidation, and it should be resisted.

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