But the Minnesota Constitution has been interpreted as
following Sherbert and Yoder, so isn't the question indeed why the cab drivers
aren't constitutionally entitled to an exemption? As it happens, I oppose
constitutional exemption regimes, at the state and federal levels, and support
jurisdiction-by-jurisdiction RFRAs, which means the question becomes statutory,
and trumpable by the state legislature. But the Minnesota rule is one of
constitutionally mandated exemptions, unless strict scrutiny is satisfied, no?
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Wednesday, March 07, 2012 7:22 AM
To: Law & Religion issues for Law Academics
Subject: Re: Requirement that cabbies transport alcohol = "tiny burden"?
For the record, I was in favor of the accommodation attempted for the Somali
Muslim cab drivers in Minneapolis and am in favor of most accommodations of
religion done by employers and public agencies and the government in general --
even quite odd ones like this particular interpretation of the Quran by this
group of Somalis.
But that is quite different from positing that there is a right in the Somalis
to engage in this sort of discrimination let alone a constitutional right to do
so.
Doug is right -- sometimes hostility to religious accommodation is motivated by
a universalist thrust that we should in fact all be treated equally -- the same
sort of hostility one sees against affirmative action for Blacks. And Doug is
also right that sometimes the hostility is directed against a religion and
members of that religion -- as JWs, Muslims, Jews, and in some settings and
some times, Catholics and others have experienced (19th Century Baptist prayer
-- "God save us from the Unitarians" who at the time had circuit riders and
were quite evangelical, unlike today).
No doubt both of these played into this event -- especially hostility to Islam.
But the subtextual motivation of hostility to the religion cannot make what is
otherwise lawful discrimination unlawful, or does it? Is there a
constitutionally meaningful distinction between -- "I don't like your religion
and therefor will not accommodate you" and "I don't think you are entitled to
an accommodation as a matter of constitutional right" -- where there is in fact
no constitutional right to accommodation, as here.
Steve
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