Landmarking as burden

[at marie a. failinger]

I think the distinction implicitly being made is not between
"institutional" and "individual" but between an understanding of religion
as inherently communal relationship of humankind with the divine and
religion as inherently a private, individual
relationship with God.  The latter, as expressed perhaps mostly clearly in
New Age religion, is a modern notion, and is probably on the rise in court
jurisprudence (e.g., Lee v. Weisman).  Of course, in the house
hypothetical, one could argue that one is focussing on something
different, which is to define the community as co-extensive with the
family, which is perhaps both ancient (as with clan gods?) and
modern (focussing the center of value on the nuclear family).  In a
jurisprudence focussing on religious equality, could there be any way to
distinguish a "individualistic," vs. a "family" vs. a "communal" religion
per se (without reference to specific facts of a case suggesting
insincerity)?

Marie A. Failinger                          Voice: (612) 641-2124
Professor of Law &                           Fax:   (612) 641-2236
Co-Editor, Journal of Law and Religion
Hamline University School of Law            E-mail:mfailing at seq.hamline.edu
1536 Hewitt Avenue                            OR mfailinger at gw.hamline.edu
Saint Paul, Minnesota USA 55104-1284

>     Why should we consider the burden more "substantial" for the
> church than for the parent (especially given that the parent might
> well be less able to afford a new building elsewhere)?
>
>     I recognize that there's a range of plausible responses there.  I
> believe Doug Laycock pointed out, for instance, that claims by
> churches may be more likely to be sincerely religiously motivated;
> and perhaps we can therefore adopt a blanket rule of rejection for all
> individual claimants -- but not institutional claimants -- because of
> the differing risks of insincerity.  And yet, if I recall correctly,
> not everyone on the list has generally accepted this sort of approach.
>
>     One could also argue that religious freedom *should* protect
> institutions more than individuals; or that it should more
> stringently protect a class of "inherently religious" activity, and
> that running a church qualifies but raising kids doesn't.  And yet
> I'm not sure that the majority of the people on the list would accept
> these explanations, either.
>
>                                -- Eugene Volokh, UCLA Law
>