Alan: You give examples of deliberate discrimination, but I thought we
were generally speaking about decisions not to change one's own affirmative
practices -- not just one's prohibitions (e.g., no-headgear rules) but also
one's choices to, for instance, play on a particular day -- in order to
accommodate others' religious demands. Here, it's not clear to me that a
private actor's decision not to accommodate is properly seen as a violation of
"religious liberty."
Let's consider an example: Say that either a patron or an employee
feels a religious objection to sexually suggestive materials -- or religiously
blasphemous materials -- posted as part of a bar's décor, and demands that the
bar remove the material in order to make the bar a place where they would feel
comfortable eating or visiting. (That's Lambert v. Condor Manufacturing,
though in the context of a bar rather than a shop floor.) I don't think that
the bar owner can properly be faulted for denying the patron's or employee's
"religious liberty" here; "religious liberty" is not the label, I think, for an
entitlement to demand that others change their behavior to fit one's religious
preferences.
Even if a Title VII duty of reasonable accommodation would be triggered
on such facts -- I think it shouldn't be, for Free Speech Clause reasons, but
others might disagree with me on the constitutional question and also conclude
that on the facts changing the doctor won't impose much of a financial burden
on the bar owner -- I don't think the reason is the employee's "religious
liberty." And the same is true, I think, when someone demands that a private
association change its schedule to accommodate one's beliefs, or change the
food served at its functions, or remove supposedly blasphemous iconography.
Eugene
Alan Brownstein writes:
> Eugene is correct that the more private the program, the less obligation
> there is to
> accommodate others. But I wasn't focusing on the TAPPS program. I was trying
> to
> respond to Marci's more general question. The tournament organizers in the
> Oregon case I referenced were state actors. In other cases, state
> institutions may
> provide much of the funding for tournament events, provide access to public
> venues where games are played and generally facilitate and support the
> tournament. The greater the state involvement in the tournament, the more
> appropriate the basis for a religious liberty argument.
>
> Even in a private situation, say a commercial context, I think it is fair to
> talk about
> religious liberty being burdened if employers refuse to hire members of a
> particular faith or motels will not rent them rooms etc. If the employer's
> decision is
> grounded on his or her own religious beliefs, religious liberty may be on both
> sides. If religious practice and belief are not justifications for a refusal
> to
> accommodate, but economic or administrative convenience concerns are the basis
> for denying an accommodation, I have no trouble talking about religious
> liberty (or
> religious equality) being weighed against economic liberty or other private
> interests.
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