I’m not sure this is quite right.
1. Federal public accommodation law is grounded on the
Commerce Clause, but it applies to a very limited set of places of public
accommodation (setting aside disability discrimination law, which is a separate
matter) – basically, hotels, restaurants, and theaters, not taxicabs. See 42
U.S.C. sec. 2000a. Many states have broader laws, but they rest on the police
power, not on the Commerce Clause.
2. Even if a state public accommodation law does ban
discrimination by cab drivers, this would in nearly all states only cover
discrimination based on the patron’s race, religion, sex, national origin, and
in some jurisdictions sexual orientation and other similar attributes. It
would certainly not cover refusals to take a patron to a grocery store to buy
meat, or to refusals to take a patron to buy contraceptives, if the refusal
would apply equally to men and women, or to many other refusals.
3. It may well be that many jurisdictions treat cabbies not as
places of public accommodation, but more or less as common carriers, who are
indeed obligated by law to take everyone who can pay, who isn’t disruptive, and
so on. But those are quite different laws from the bans on discrimination in
public accommodation.
4. Antidiscrimination laws in any event bind the employer, not
each employee. If an employer can dispatch one driver instead of another, and
the service only does dispatching rather than having people hail a cab (and my
sense is that the service we were discussing indeed involved dispatching), the
employer would not be violating either public accommodation law or its common
carrier obligations by sending one employee rather than another.
5. More broadly, Title VII of the Civil Rights Act of 1964 is
a federal law, which may preempt contrary state laws. That some city or state
imposes a common carrier obligation on all cabbies doesn’t automatically mean
that the employer must follow that law rather than offering a religious
accommodation. The preemption analysis isn’t open and shut, to be sure, but we
can’t just assume that the state or local law trumps.
6. Finally, if the claim that “this thread ought to be
concerned with tolerance of legal activity rather than granting religionists
preferences” is about the law as it is – rather than as it should be, for
instance in some world where the Title VII duty of reasonable accommodation is
repealed – then it seems to me to assume the conclusion. Title VII’s religious
accommodation requirement does grant religionists preferences in the sense of
some degree of religious accommodation. (It has also largely been read as
granting similar preferences to nonreligious conscientious objectors.) We can
debate what the scope of those preferences should be, and what should count as
an undue hardship to an employer. But I don’t think we can just assume that
any accommodation of an employee’s desire not to aid (in his view) activity
that he sees as sinful is categorically an “undue hardship,” so long as the
activity is “legal.” Or am I missing something here?
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of b...@jmcenter.org
Sent: Wednesday, April 27, 2011 1:06 PM
To: religionlaw@lists.ucla.edu
Subject: RE: Religious accommodation and "accomplice" objections
Eugene,
The validity or ridiculousness of the accomplice theory seems to depend not on
the theory but (1) the claim and (2) the viewer.
Can a cabbie justifiably refuse to take a customer a grocery store where meats
can be purchased (assuming the cabbie has a sincerely held belief that it is
wrong to kill animals), to a department store where a bikini (or a sleeveless
short dress) can be purchased (assuming the cabbie believes that women must
dress modestly), to a pharmacy where birth control or Plan B can be purchased
(assuming that the cabbie believes in endless procreation), to a photographer
to take a portrait of a gay couple (if the cabbie believes that homosexuality
is a sin), to a liquor store, etc., etc. -- all situations where the activity
is legal? The intent of public accommodation laws (grounded on the Commerce
Clause, not the Free Exercise Clause) is to protect the customer from
discrimination. Accommodations -- even for sincerely held beliefs -- is
problematic. The foregoing circumstances do not, in my opinion, warrant
accommodation. The watered down accomplice theory (i.e., non-criminal
situations) is neither compelling nor meritorious.
It seems to me that this thread ought to be concerned with tolerance of legal
activity rather than granting religionists preferences.
Bob
Robert V. "Bob" Ritter
Jefferson Madison Center for Religious Liberty
Falls Church, VA
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