I agree with the statement in the first paragraph that, if a
cab driver is treated as a common carrier, then he might have to transport
people who are carrying alcohol (unless he is entitled to a religious exemption
under a Sherbert/Yoder-model state constitutional regime, or a state RFRA
regime). And this is so regardless of whether he's discriminating based on a
characteristic such as religion.
But the second paragraph goes on and says that a business owner
who discriminates against a customer who is doing something that the owner
thinks is religiously improper is engaging in "discrimination based on
religion." The logic of that paragraph goes far beyond the common carrier
situation (and indeed in the common carrier situation is irrelevant whether the
common carrier is discriminating based on religion).
If the claim is that this discrimination based on the actor's
religious beliefs is the sort of religious discrimination prohibited by public
accommodation discrimination laws, that strikes me as mistaken. As I mentioned
in my earlier post, a secular restaurant owner who refuses to deliver to an
abortion provider because of the owner's secular opposition to abortion should
be precisely on the same footing as a religious restaurant owner who refuses to
deliver to an abortion provider because of the owner's religious opposition to
abortion - neither is guilty of actionable religious discrimination. Likewise,
a secular cab driver who refuses to transport people carrying alcohol because
of the driver's secular opposition to alcohol should be precisely on the same
footing as a religious cab driver who refuses to transport people carrying
alcohol because of the driver's religious opposition to alcohol. Again,
neither is guilty of actionable religious discrimination. Perhaps both are
guilty of violating some common carrier obligation; but that's another story.
In either case, the suggestion that there's something illegally
religiously discriminatory about a business owner's acting based on his own
religious beliefs and conduct strikes me as mistaken - indeed, unconstitutional
given Lukumi Babalu.
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Wednesday, March 07, 2012 3:40 PM
To: Law & Religion issues for Law Academics
Subject: Re: Discrimination against people with religious motivations for their
actions
Yes, Eugene, I think you are missing the essential point that common carriers
are not the same as other employers and when it comes to choice as to serve or
not serve, they are more limited in what they can and cannot do. They are
bound by more than non-discrimination laws. Or that is how I always understood
the law in this field, but I could be mistaken - I've not worked in it for over
2 decades now. So the baseline is different. It is not the same as for
ordinary businesses.
I get the distinction you are trying so to make. And I agree that it is not the
same as excluding someone because of a particular affiliation with a sect. But
it still is discrimination based on religion whether it is based on the
customer not conforming to the religious expectations and demands of the
business or the business excluding because of a status of the customer -- in
both instances it is because of the religious beliefs and conduct of the
business, not the customer.
I am troubled by the blame-the-customer attitude evinced in the solicitude for
the person engaged in provision of a public service such as common carriers
and public transportation.
As I have written some time ago now, I think we should indeed recognize the
religious needs or constraints or beliefs of the employer -- but one should
also recognize and support the interests of the others.
If a system can be worked out with minimal harm to all involved, that is best.
But I would favor the weaker party to the stronger -- in this situation the one
needing the cab is decidedly in the weaker position.
Steve
On Mar 7, 2012, at 3:07 PM, Volokh, Eugene wrote:
I think the analysis below is mistaken: Whether or not cabbies' refusal to
carry alcohol should be barred by some general common-carriage requirement, it
shouldn't be treated as religious discrimination. What's more, I think the
argument that such a refusal is religious discrimination itself calls for
discrimination against those with religious motivations for their actions.
1. To begin with, as others have pointed out, the cabbies' actions affected
Christians, Jews, Muslims, the irreligious, and anyone else who carried
alcohol. Moreover, they didn't affect Christian, Jews, Muslims, the
irreligious, and anyone else who didn't carry alcohol.
2. Now I take it that the response is that the really devout Muslims of the
same religious views as the cabbies generally wouldn't be affected (just as, I
suppose, Mormons or Methodists wouldn't be affected), because they generally
wouldn't carry alcohol. But that analysis strikes me as unsound, and here's
why.
Imagine a case closely modeled on Rasmussen v. Glass (Minn. Ct. App. 1993)
(review granted but appeal later dismissed),
http://scholar.google.com/scholar_case?case=648897692635049631. A restaurant
owner refuses to deliver food to a doctor who performs abortions, because the
owner believes abortions are evil, and doesn't want to provide any help, even
indirect, to such evil. And say the restaurant owner's is irreligious, and his
opposition to abortion is based on his own personal moral views (e.g., he
follows Nat
Hentoff,http://groups.csail.mit.edu/mac/users/rauch/nvp/consistent/indivisible.html).
I take it that we would all agree that the restaurant owner is not
discriminating based on religion. To be sure, devout Catholics, and devout
members of other anti-abortion religious groups, wouldn't perform abortions.
But that doesn't mean the restaurant owner is discriminating based on the
would-be customers' religions - he's discriminating based on their secular
actions.
Now say that another restaurant owner acts precisely the same way, but his
opposition to abortion is based on his religious views. As I understand the
argument below, he would be seen as discriminating based on religion, because
the performing of abortion is "a badge of a religion different from yours."
And thus he would be presumptively required to deliver to the doctor's office,
if state public accommodations law covers discrimination based on religion in
restaurant delivery. But this would mean that the law itself has become
religiously discriminatory: The secular anti-abortion restaurant owner is free
to do something (here, refusing to deliver to an abortion provider), but the
religious anti-abortion restaurant owner is barred from doing precisely the
same thing.
3. I think the same applies to the alcohol example. A secular cab driver who
opposes alcohol on secular grounds would presumably not be treated as
discriminating based on religion. But to treat the religious cab driver who
opposes alcohol on religious grounds would be treated as discriminating based
on religion, and would thus be potentially violating relevant public
accommodations bans. Yet such an approach would itself impermissibly
discriminate (in violation of Lukumi Babalu) against the religious cab driver
based on the religiosity of his motivation for his conduct. Or am I missing
something here?
Eugene
From:
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Wednesday, March 07, 2012 7:10 AM
To: Law & Religion issues for Law Academics
Subject: Re: Cabbies vs. lawyers
Of course it is a proxy -- just like a collar or burka or yarmulke -- a badge
of a religion different from yours -- only in this case it is alcohol
possession -- a badge of a religion different from yours. The dodge of "oh,
I'm not against their religion, just against their conduct" can't be allowed
can it? The person transporting the alcohol is the passenger, not the cab
driver. The fact of hidden vs. open possession of the bottle of wine gives it
away, doesn't it -- it is not about the action, it is about the religious
nature of the action -- the violation of the religious beliefs of the driver by
the religious beliefs (ok to have and transport alcohol) by the passenger.
It is action based on a difference of religious belief. That is discrimination
no matter how one twists it.
Maybe we should allow this discrimination, just like maybe we should allow
discrimination in allowing landlords to discriminate against gays based on the
landlord's religious beliefs, but that is still religious-based discrimination.
You can't suddenly say that motivation doesn't matter just because the
motivation is their own religious beliefs.
Steve
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--
Prof. Steven D. Jamar vox: 202-806-8017
Associate Director, Institute for Intellectual Property and Social Justice
http://iipsj.org
Howard University School of Law fax: 202-806-8567
http://iipsj.com/SDJ/
"Our scientific power has outrun our spiritual power. We have guided missiles
and misguided man."
- Martin Luther King Jr., "Strength to Love", 1963
_______________________________________________
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