Mark-- Thank you very much for your thoughtful response. I do respect your position and understand that it is shared by others. As I suppose is no surprise to anyone on this list, I take a different view. I think the two men are identically situated, because they are both intent on imposing their religious views on the freedom of women. You have posited the value of human life, but this is a sleight of hand with the constitutional doctrine, no? The Court's doctrine does not recognize a constitutional interest in the fetus. The woman, in contrast, has a right to obtain a legal and medically advised abortion and to obtain contraception. So I cannot agree with your analysis of the interests affected here. The fact a segment of our society claims that there is a "life" interest in the fetus does not make it constitutionally relevant. Why are we having a discussion about religious liberty that focuses exclusively on the man's asserted need to avoid driving a woman to Planned Parenthood (where the odds are that she is NOT getting an abortion) but paying so little heed to the liberty of the woman? In my view, it is because religious liberty discourse in the United States often puts the believer in a spotlight, and low lights all other societal interests in the background. That is a mistake that undermines the sum of liberty. No discussion about conscientious objection regarding abortion and contraception should take place without taking the woman's constitutional rights into account. When the focus is expanded, we see that he has at most an attenuated right/interest (no on is asking him to obtain an abortion or contraception for himself or his fellow believers or to condone his passenger's actions), while she has a legitimate right. A refusal to transport her, assuming that she would be transported otherwise to any other location in the system, looks like an undue burden to me. It also appears that the government is being asked to favor his religious world view at the expense of her religious (don't forget her actions are being taken in light of her religious beliefs, which permit her to go to Planned Parenthood) and privacy rights. I assume that you would respond that her rights are not relevant so long as a replacement driver is available. I continue to doubt that is a feasible plan for public transportation, and so if he had a Title VII right to avoid driving her, it would burden her. Either she would have to wait or, worse, she would have to be ostracized by his publicly drawing attention to her intent to go to Planned Parenthood. And my guess is that accommodating him is infeasible, as the settlement an agreement requires that he not seek another job with the authority. I take these issues extremely seriously. Looking globally, there is no more threat to freedom right now than male-dominated religious hierarchies intent on subjugating women (which historically entails the further subjugation of children). We will lose the huge achievements for women and children in the United States if we fail to take into account their victimization through an aggressive religious liberty doctrine that focuses solely on the man without reference to the woman's (or child's) interests. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University In a message dated 4/26/2011 12:47:32 A.M. Eastern Daylight Time, mark.scarbe...@pepperdine.edu writes:
In response to Marci: There certainly are differences between the bus driver who asks not to be dispatched to take passengers to Planned Parenthood and the bus driver who asks not to be dispatched to a department store that sells bathing suits. I have time now to discuss one of them and to begin to discuss a second. But initially let me say that a low hurdle is nevertheless a hurdle. If there are other drivers who can without inconvenience or delay be dispatched to take the passengers to Planned Parenthood, then even a low hurdle would seem to be high enough to require accommodation. Here’s the first difference. Many, many clothing stores sell bathing suits, and many, many shopping centers have stores that sell bathing suits. An “ on demand” bus driver (as Eugene says, very nearly the same as a taxi driver) who asks accommodation so as not to have to take a passenger to any of the places where bathing suits are sold would be substantially unable to do the job. My impression is that many of the “on demand” bus trips are in fact to shopping centers; as I understand it, the service usually is a free or nearly free community service provided to the elderly or others who cannot drive, and they often want to go to shopping centers. A second point that I may try to elaborate on tomorrow: The history of conscientious objection in our society is focused largely on moral objections to the taking of human life (and moral objections to forced avowal or disavowal of religious belief). Given that history, moral objections (including religious objections) that deal with (in the view of the objector) the taking of human life have a special place. Coerced participation in the immoral taking of human life (or in steps thought to lead to that result) is an extraordinary imposition on freedom of conscience. It hardly seems unreasonable for the law to provide special protection for such impositions on conscience. Holmes is not my favorite legal philosopher, but he may have been right that “[a] page of history is worth a volume of logic,” and that “[t]he life of the law has not been logic; it has been experience.” A reasonable judge could see that moral objections to the taking of human life should weigh more heavily in the balance than moral objections to other persons’ choice of apparel. Whether the logic of title VII (or of a state RFRA) allows such balancing to be done explicitly I will leave to others. Eugene’s notion of a common law of religious exemptions may be useful here, perhaps in describing how statutes allowing such exemptions will work in practice. Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law Malibu, CA 90263 (310) 506-4667
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