God vs. the Gavel: Religion and the Rule of Law.

• Author: Laycock, Douglas
• Position: Book review

I recently reviewed (1) God vs. the Gavel (2) by Professor Marci Hamilton, and she published a brief response. (3) My review briefly summarized the book and then made three principal points, addressing Hamilton's institutional competence thesis, (4) her "no-harm" principle, (5) and the remarkable number of legal and factual errors in the book. (6) In this reply, I will review each of these points in turn.

1. INSTITUTIONAL COMPETENCE

   The book's central legal claim is that only legislators may legitimately exempt religious behavior from regulation, and then only by enacting specific rules rather than generally applicable standards. Yet Hamilton condemns the legislature's bad judgment, its inadequate process, and its frequent secrecy. Her examples of exemptions that should not have been granted were nearly all granted by legislatures, not courts. I found her preference for legislatures "incomprehensible" in light of her critical assessment of legislative capacities and performance. (7)

   Her only response is that I have confused an "ought" with an "is"--that legislatures ought to conform to her proposed rules even though they have not done so "of late." (8) But on questions of institutional competence, who "ought" to decide necessarily depends on an "is"--on the actual strengths and weaknesses of existing institutions. That is the whole point of debates about institutional competence. Arguing that Congress ought to do things beyond its capacities is like arguing that earthworms ought to fly, even if none of them have done so lately.

   Most of the defects that Hamilton identified in the legislative process, and most of the additional defects that I identified, (9) are inherent in the process. These defects flow from the pressures of the political process and from the unmanageable demands on legislators' time. They cannot be wished away by saying that legislators "ought" to do better.

   Hamilton has great faith in the potential of legislative hearings; I explained at some length why this faith is "divorced from reality." (10) I argued that on a question sufficiently focused for the judicial process, judges can devote more time and attention, have a more reliable fact-finding process, and are more likely to make a principled judgment that takes both sides seriously. Her only response is to repeat what she said in the book and to claim that her view "is a non-controversial statement of fact." (11) A real response would have to address the argument and evidence offered in the review. The comparative...