A response to professor Laycock.

• Author: Hamilton, Marci A.
• Position: Response to article by Douglas Laycock in this issue, p. 1169

--So, other than that, Mrs. Lincoln, how was the play?

INTRODUCTION

Almost a hundred years ago, the American Association of University Professors established guidelines for civility among scholars, saying that academic exchanges "should be set forth with dignity, courtesy, and temperateness of language." (1) I agree wholeheartedly with these principles, and I will not succumb to the temptation to respond in kind to Professor Laycock's review. (2) Tone is much less important than having a frank exchange of views.

It is well known that Professor Laycock and I have very different perspectives on the proper interpretation of the Free Exercise Clause. His review and my response should be an opportunity for us to explore our intellectual differences.

In this brief response, I will focus on the two most important theoretical points from God vs. the Gavel: Religion and the Rule of Law that he attempts to disparage. (3) They are the heart of my theory, so they are well worth debating.

First, I will address his criticism of my position that legislatures are the better branch to craft religious accommodation than the courts. Second, I will touch on his apparent misunderstanding regarding the "no-harm principle," which is no creation of mine, but rather a staple in moral and legal reasoning.

One of the major themes of my book is that it is difficult to have a scholarly dispassionate debate about these important issues because anyone who questions religion provokes ad hominem invective that tends to cut off the conversation. I hope that we can open a conversation here, rather than stifle it.

1. LEGISLATURES: THE "Is" AND THE "OUGHT"

   There is a fundamental flaw in Professor Laycock's attempt to discredit my position that legislatures are better suited to crafting religious accommodation than the courts. He cannot understand, or so he says, how anyone could say both that legislatures are better suited institutionally to engage in accommodation but, at the same time, that contemporary legislatures have not done a very good job in crafting accommodations to serve the larger public good.

   I assumed it went without saying that there is a distinction between the "is" and the "ought" Professor Laycock has committed the classic philosophical fallacy of confusing the two. (4) In God vs. the Gavel, I am both describing the legislative process and then judging how it has been operating of late.

   Purely as a descriptive matter, legislatures have greater capacity to...