BY DEREK QUIZON
The (Charlottesville) Daily Progress
University of Virginia legal scholar Douglas Laycock is facing criticism from gay rights groups for his support of religious freedom laws that activists say could lead to discrimination against the lesbian, gay, bisexual and transgender community. Activists also are upset at his support for Hobby Lobby in an ongoing Supreme Court case involving contraception coverage.
Laycock, who is married to UVa President Teresa A. Sullivan, is the subject of a Freedom of Information Act records request by two UVa student activists – Gregory Lewis and Stephanie Montenegro. In an open letter to the professor, Lewis and Montenegro said that while they respect Laycock’s right to academic freedom, they believe his writings supporting controversial religious freedom laws are holding back progressive causes such as access to contraceptives and gay marriage.
“Most recently, your legal work on the topic of ‘religious liberty’ has been used as a basis of discrimination bills like the one that went into effect in Mississippi and nearly in Arizona,” read the letter. “Your work has also been used in efforts to resist the requirement in the Affordable Care Act that employers cover the cost of contraception.”
“As leaders on the UVa campus, we strongly believe in engaging in dialogue, and, equally as important, for professors to truly understand the implications of their work,” the letter continues.
The students also expressed concern over Laycock’s support of retail giant Hobby Lobby, which is suing the federal government for the right to deny coverage for contraceptives for its employees, citing religious concerns. Laycock filed an amicus brief supporting Hobby Lobby, asserting that federal religious freedom law protects for-profit corporations and their owners.
Montenegro and Lewis are seeking, among other things, university-funded travel expenses and cellphone records for the past two-and-a-half years. The students wrote that the request – a copy of which was sent to The Daily Progress – was in the public interest, seeking “a full, transparent accounting of the resources used by Professor Laycock which may be going towards halting the progress of the LGBT community and to erode the reproductive rights of women across the country.”
Lewis, who heads campus activist group Queer and Allied Activism, said he and Montenegro wrote the letter and made the request to start a discussion. They also want to make Laycock aware that his arguments are being used to support discriminatory policies, Lewis said.
“The strategy of the FOIA request is to put everything on the table,” he said. “We don’t think he’s doing anything wrong; it’s just looking at whether he knows how it’s being used.”
At the heart of the dispute is Laycock’s support of Religious Freedom Restoration Acts. These laws – passed by the federal government and in some variation in 19 states, including Virginia – allow citizens to sue the government when a regulation violates the practice of their religion.
A 1997 Supreme Court decision established that the federal Religious Freedom Restoration Act does not apply to the states, which is why states have been passing variations of it in their own legislatures.
Laycock – who has written in support of gay marriage – said the law was instrumental in overturning an ordinance by the city of Boca Raton, Florida, that would have removed religious decorations from graves. Laycock said he is currently representing a Muslim prisoner who wants to be able to grow a half-inch-thick beard, which is against prison regulations.
“These laws mostly address miscellaneous conflicts between the practices of assorted religious groups and government regulations,” Laycock said.
But lately, the laws have been in the headlines as the battle over gay marriage continues around the country. Some anti-gay-marriage groups see it as a way to allow businesses to discriminate against gay and lesbian couples, said Heather Cronk, spokeswoman for the national gay rights advocacy group Get Equal.
“There shouldn’t be a need for a new law … if there are already protections under freedom of religion,” Cronk said.
“There are no protections for LGBT people in place,” she added.
This year, state legislatures in Mississippi and Arizona both passed Religious Freedom Act-style laws that LGBT proponents say they fear could lead to businesses turning away gay and lesbian clients. The controversy surrounding the law in Arizona led Gov. Jan Brewer to veto it; Mississippi Gov. Phil Bryant signed it into law.
But legal scholars are unsure of whether these laws will actually lead to discrimination against gay and lesbian couples. The laws have a caveat – a “compelling government interest,” such as public safety, can override someone’s religious freedom. Laycock said past court rulings have established civil rights as a compelling interest.
Sexual orientation is not actually covered in civil rights law, but courts ruled in favor of protecting the civil rights of gay and lesbian people interacting with private business. In December, a judge in Colorado ruled against a baker who refused to offer his services to a gay couple. State officials in Washington, Oregon and New Mexico also have ruled against or sanctioned various small businesses refusing to offer their services for homosexual weddings.
“Courts have always ruled that civil rights is a compelling government interest,” Laycock said.
But Laycock said he disagrees with many of the rulings. Laycock has long advocated a compromise between religious freedom and marriage equality – legalizing gay marriage, but also allowing individual vendors or very small businesses to abstain from participating in gay weddings if it violates their religious beliefs. Larger businesses wouldn’t have the same protections, he said, because the owner does not have to actually participate.
“I think a wedding is such a religious experience that very small businesses should be able to say no,” he said. “But the courts have not seen it that way.”
So how does this figure into Laycock’s support of a huge retailer like Hobby Lobby? Laycock said the decision over whether to provide coverage for contraceptives is made at a management level.
“This is a corporation-wide decision that has to be made in corporate headquarters; it’s not one clerk doing it in a Hobby Lobby,” Laycock said. “I think it’s a unique case.”
Cronk said she doesn’t believe Laycock has thought through the implications of his argument. Should the owner of a small bakery be allowed to refuse service for an interracial wedding, for example, because it goes against his religious beliefs?
“If you take this argument to its logical conclusion, it’s abhorrent,” Cronk said.
To call Laycock a lightning rod of controversy would be an understatement. In November, he argued before the Supreme Court that practice of opening town council meetings in Greece, New York, with an “explicitly Christian” prayer was a violation of the Establishment Clause – better known as separation of church and state.
Laycock argued that prayers should be nonsectarian, making them inclusive for believers of different faiths. He claimed that people attending the meetings felt pressured to participate and those who did not reported a hostile reaction. His position was stanchly opposed by conservative religious groups such as the Becket Fund for Religious Freedom and Alliance Defending Freedom.
In a 5-4 decision released earlier this month, the court rejected Laycock’s argument that prayers at the beginning of public assemblies must be nonsectarian. The town’s practice of using Christian prayers reflects the fact that most of its congregations are Christians, according to the decision – it does not reflect discrimination against religious minorities.
Now student activists from the opposite side of the political spectrum are looking at Laycock’s relationships with the groups that opposed him during the Greece case. Among the records requested by Lewis and Montenegro are emails between Laycock, Alliance Defending Freedom and the Becket Fund.
Laycock said he believes the campaign is based on guilt-by-association.
“‘He’s giving aid and comfort to the enemy’ – that’s their position,” Laycock said “My position is civil liberties applies to both sides. It applies to all Americans.”
Lewis said he wants to open a discussion on religious freedom, civil liberties and the real-world impact of academic work. They are currently trying to set up a date to meet with Laycock.
Lewis said their objective is not to silence the professor.
“It’s actually quite the contrary to that,” Lewis said. “We’re calling for a public dialogue.”