“You don’t start a dialogue with FOIA requests”

May 27

Some LGBT activists are upset with University of Virginia law professor Douglas Laycock, one of the nation’s foremost law-and-religion scholars.  According to the Charlottesville Daily Progress, these activists “believe his writings supporting controversial religious freedom laws are holding back progressive causes such as access to contraceptives and gay marriage.”  For instance, Professor Laycock blogged here about Arizona’s SB1062, a bill ultimately vetoed by Gov. Jan Brewer that would have clarified and strengthened the state’s religious freedom laws.

Upset with Professor Laycock’s defense of laws requiring governments to accommodate controversial religious views, such as religious opposition to same-sex marriage, these students  have sent a freedom of information request seeking to obtain any correspondence between Professor Laycock and various organizations that support religious accommodation laws or oppose same-sex marriage.  the Richmond  Times-Dispatch reports:

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.”

 The students also wrote an open letter to Professor Laycock (reproduced here).  Here’s an excerpt:

As students at the University of Virginia, we have become increasingly worried about how your work is being used, and possibly mis-used, by those who oppose the ability of lesbian, gay, bisexual, and transgender (LGBT) Americans and women to fully and authentically live without interference from the government.

Most recently, your legal work on the topic of “religious liberty” has been used as a basis for religious discrimination bills like the one that went into effect in Mississippi and nearly in Arizona. 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 fully understand the implications of their academic work.

Your recent legal theories around religious liberty have occasionally placed you on the same side as progressives in terms of free speech and public prayer. But your work has also been cited, by you and by others, in attempts to erode progress for LGBT Americans and to erode protections for women. These efforts to roll back progress and protections for LGBT folks and women has drastic, real-life consequences. . . .

While academic freedom has immense value within the walls of the classroom, we’re writing this open letter to you in order to gauge your understanding of the real-world consequences that your work is having, and to invite you into a dialogue with UVA students who are negatively impacted by your work. It is vitally important to balance the collective work of our academic community with the collective impact of that work in communities across the country.

Furthermore, it is vitally important for this conversation to be open and transparent. Too often, the academy demands all our attention into our own writing and research, without allowing us the time or opportunity to interact with those in the wider community. We wanted to issue this invitation in order to break that habit, and to authentically engage you and the wider Charlottesville community in this open and transparent conversation.

Professor Bainbridge calls BS on the students:

You don’t start a dialogue with FOIA requests. This is a blatant effort at deterring public participation by anyone who does not hew 100% to the most radical version of the gay rights movement.

Overlawyered’s Walter Olson concurs:

No one could doubt that Laycock’s views on religious accommodation are part of a set of intellectually derived convictions that run through decades of his work. (In addition to opposing such forms of church-state entanglement as officially sponsored prayer, he supports the right of gays to marry.) It’s simply a matter of trying to arm-twist a tenured, well-recognized scholar who takes a position that the Forces of Unanimity consider wrong.

The good news is that the FOIA request might not get very far.  Earlier this year the Virginia Supreme Court rejected efforts by conservative groups to obtain e-mail correspondence and other records from controversial climate scientist Michael Mann.  In its opinion the Court explained it would not read the Virginia open records law in a way that would place public universities at a competitive disadvantage with private universities.  According to the Court,

competitive disadvantage implicates not only financial injury, but also harm to university-wide research efforts, damage to faculty recruitment and retention, undermining of faculty expectations of privacy and confidentiality, and impairment of free thought and expression.

If the students truly want to start a dialogue — then they should actually start a dialogue.  This requires actually engaging with the substance of Professor Laycock’s views and bringing something to the table other than their suppositions about how particular legal rules may affect their immediate policy concerns.  Thus far, all they’ve delivered is the posture of entitlement and the tactics of thugs.

Jonathan H. Adler teaches courses in constitutional, administrative, and environmental law at the Case Western University School of Law, where he is the inaugural Johan Verheij Memorial Professor of Law and Director of the Center for Business Law and Regulation.
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