Laycock’s Defense of Strict Scrutiny

Abstract

There is likely no law and religion scholar who has done more to shape the doctrine of strict scrutiny as a protection for religious exercise than Professor Douglas Laycock. Since five justices have called the notorious Free Exercise case— Employment Div., Dept. of Human Res. of Ore. v. Smith —into question, Laycock’s work has taken on additional salience. And that is even more true as justices and scholars have asked and debated what test should replace Smith if overruled. Some scholars have argued that the court should abandon strict scrutiny across the board and Bruen- ize the First Amendment—that is, incorporate the newly minted Second Amendment historical-analogue approach from New York State Rifle & Pistol Ass’n v. Bruen into the First Amendment context. In this article, I discuss three important aspects of Laycock’s work regarding strict scrutiny: (1) the textual and historical arguments Laycock has made to support strict scrutiny in the religious exercise context; (2) the important insights he has offered about how the doctrine should operate, particularly with respect to his most-favored-nation theory; and (3) the normative justifications Laycock has offered to support this approach. Building on previous work of mine, I explain additional reasons why strict scrutiny is an important and historically justified doctrine in the free exercise context. I also explain why Bruen ’s categorical historical-analogue approach, while potentially useful in some constitutional contexts, would be problematic in the Free Exercise context. More importantly—and ironically— Bruen ’s purported historical approach would be contrary to the best textual and historical understanding of the Free Exercise Clause.