dsg at PRCHFE.ORG
Wed Aug 5 12:11:53 PDT 1998
>> Douglas Laycock wrote:
[snip] The proposal that conduct is not religious unless required by a
larger faith group is inconsistent with Indiana v. Thomas, Illinois v.
Frazee, and the whole Protestant tradition. American free exercise law
obviously does not codify a particular faith tradition, but it would be
bizarre to read it as codifying a definition of religion inconsistent with
the self-understanding of the most numerous tradition in the country.
Douglas raises an important point here. It must be admitted that it will be very difficult for legislators or courts to adopt an understanding that differs from that of the Protestant majority. The problem is that the majority will rarely run into a significant FE problem. They can protect themselves by political and cultural means. (see, the Brennan dissent in Goldman.) Unlike the situation in Lyng, it is hard to imagine a government proposing to put a road through the location of St. Patrick's Cathedral.
FE questions will most frequently arise in the context of minority religions (see Goldman, Lyng, Smith etc.). Minority religions do not have the power to politically protect themselves and courts display both a lack of understanding towards those religions and at many times a suspicion of (dare I say hostility towards?) those religions insofar as they clearly diverge from the dominant norms. (My reading of Lukumi is that the overtly directed hostility towards Santeria was so pronounced that the courts could not avoid it makes it a rather unique anomaly in this regard.)
The idea of incorporating reference to a larger community, while admittedly not dominantly indigenous to judicial thinking (with the rare exception of a case like Yoder) is intended to buttress the arguments of these minority religions and to attempt to rebut the often unvoiced suspicions of them. It can be applied not as a general definition of religion, but merely as a standard in justifying a religious motivation test.
Of course, once the courts establish a pattern of denying FE protection, that pattern will ultimately begin to affect majority religions when they run into conflicts with the legal system
David Sinacore-Guinn JD, PhD
The Park Ridge Center
211 E. Ontario, Suite 800
Chicago, IL 60610
(312)266-2222 Ext. 244
dsg at prchfe.org
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