UnGodly Zoning: A Non-weird Hypo

[Brooks Fudenberg]

Maybe I'm missing something in the religious-home-schooling debate.
Perhaps the argument goes only to RFRA, and not to the first amendment.
But for "zoning" to prohibit normal, family-type uses of homes would
seem unconstitutional--irrespective of the religious element.

Your own home is often used as the example of the most "personal" type of
property; there is a theory that the more personal the property, the more
likely courts are or should be to find the regulation affects a "taking".

But more important, the right to do many--not all--things in your own home
seems to involve constitutional interests in privacy, in family integrity,
etc.

Could they zone my neighborhood for a "football-free" area--i.e., no one
can watch football games on TV?  It would seem ludicrous.

Why?  For one reason, because my watching TV has no impact on anyone else.
Now, you might say, my viewing pornography also has no impact on anyone
else, yet clearly can be banned.  The difference--pornography is a
vice, and traditionally, vices can be regulated heavily or forbidden
absolutely.  Football is neutral.  Religious activity is
better-than-neutral--it is (constitutionally) "good."  So if they cannot
ban football watching, how could they ban religious home-schooling?

Perhaps the answer is, "once you get together with your neighbor--you will
teach his kids as well--it is a different story."  But do you think they
could ban watching-football-with-the-neighborhood kids?  Again, it seems
ludicrous.

So to regulate it--when it is not a vice--there would seem to have to be
some impact on the rest of the neighborhood.  Or the high potential for
the same.  Thus, they could ban commercial activities, under a theory that
if not banned, *some* commercial activity will become very successful, and
place a traffic burden on the community.  Moreover, once you start
charging, you have entered the stream of commerce, where regulation is
given freer range than in the home.

Brooks R. Fudenberg
University of Miami School of Law