RE: Cabbies vs. lawyers
They aren’t discriminating against anyone on the basis of that person’s religion. The cabbies’ own religious beliefs are leading them to discriminate against people who are openly carrying alcoholic beverages. I’m not sure I know of any religion that calls on its adherents to carry alcoholic beverages openly. Mark S. Scarberry Pepperdine Univ. School of Law Malibu, CA 90263 (310)506-4667 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Tuesday, March 06, 2012 5:18 PM To: Law Religion issues for Law Academics Subject: Re: Cabbies vs. lawyers Are not the cabbies discriminating against customers on the basis of religion? Or is the alcohol proxy enough to remove that taint? Sent from my iPhone On Mar 6, 2012, at 7:38 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: In a sense this may be obvious, but it might be worth restating: One thing that is facing the cabbies is that for complex reasons cabbies are stripped of liberties that the rest of us take for granted. If we disapprove of alcohol – whether because we’re Muslim or Methodist, or because a close family member is an alcoholic or was injured by a drunk driver – we are free to refuse to fix the plumbing in a bar, to give legal advice to Coors, or to refuse to let people carrying beer bottles onto our business property. To be sure, our right to freedom of choice may have been limited in some ways by bans on race discrimination, sex discrimination, religious discrimination, and the like. But whether right or wrong those bans still leave us mostly free to choose whom to do business with. The cab drivers thus want only the same kind of liberty that the rest of us generally have. Their argument isn’t a pure freedom of choice argument (which the law has rightly or wrongly denied to cabbies generally) but a freedom of choice argument coupled with a religious freedom argument; but that simply shows that this freedom of choice is even more important to them than it generally is to the rest of us. This doesn’t mean that they should win. Maybe there’s a really good reason for denying cabbies, including religious objectors, this freedom of choice when it comes to transporting alcohol. But it does cast a different light on objections to people “choosing [clients] according to [the choosers’] religious belief,” or “demand[ing] a ‘right’ to exist in a culture that mirrors their views.” No-one makes such objections when we as lawyers pick and choose our clients; no-one faults us for choosing them according to our religious beliefs (unless those beliefs require race or sex discrimination or such); no-one says that lawyers who refuse to work for alcohol distributors demand a right to exist in a culture that mirrors our views. Likewise, I don’t think it’s fair to condemn cabbies for seeking, in this one area that is unusually important to them, the same freedom that lawyers have. Eugene From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Tuesday, March 06, 2012 2:59 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Requirement that cabbies transport alcohol = tiny burden? Why is anger at a publicly licensed cab picking and choosing passengers according to religious belief anything like anti-Muslim animus? Cabbies can't reject passengers on race. Why should they be able to reject those with religious beliefs different from their own? If they don't want to be in the company of nonbelievers, they should find another line of work. Also-- a number of imams announced the cabbies were misreading the Koran. There was no requirement they not transport others' cases of wine. No one was asking them to drink the wine We have crossed the line from legitimate claims to accommodation into the territory where religious believers demand a right to exist in a culture that mirrors their views.That is called Balkanization Marci ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list
Religious objections vs. medical objections
It may well be that there were specifically anti-Muslim statements made in the Target controversy that Greg describes. But it seems to me that, in general, the analogy between religious objections and medical objections tends to be somewhat overstated. (I thought the same of the Third Circuit Judge Alito opinion in Fraternal Order of Police v. City of Newark.) For instance, I imagine that many an employer will gladly give employees extended leave for serious illness, perhaps even weeks’ worth of paid leave and months’ worth of unpaid leave. Does it follow that it must give the same leave to people who want to go on a months-long religious pilgrimage? Likewise, an employee might make many accommodations for employees whose medical conditions make it impossible for them to do a certain job, even when that involves a far greater than de minimis cost. The employee might be required to do so by disability law, but might sometimes simply choose to do that in order to help someone who is sick or injured. Does it follow that it must make similarly high-cost accommodations for religious employees? I don’t think so. It seems to me that an employer can reasonably conclude that, as a general matter, health-based objections are less likely to be broadly shared (there will be fewer cashiers with peanut allergies than Muslim cashiers, at least in areas with a high density of Muslim immigrants), and less likely to be perceived as slights even by unbiased customers. No customer who notices that a cashier refuses to handle peanut products will take that as a personal slight; but even customers who aren’t hostile to Islam as such might perceive religious objection to the handling of pork or alcohol as a statement that the customer’s religious beliefs are (in the cashier’s view) wrong, or that the customer’s eating habits are “unclean” and drinking habits are unwholesome. And beyond this, it seems to me quite permissible (though not the only permissible view) for an employer to conclude that undoubted, scientifically provable medical risk deserves more accommodation than subjective, individually felt religious belief. Moreover, when it comes to legal compulsion, I would think (see TWA v. Hardison) that imposing the costs of one person’s religious practice on others raises objections that are more serious than just imposing the costs of one person’s disability on others would. Or am I mistaken on these things, and employers who generously provide substantial accommodations for those who are sick, allergic, or disabled must provide equally substantial accommodations for those who have religious objections? Eugene Greg Sisk writes: And given that this episode occurred at the same time that Muslim cashiers at Target asked not to be required to handle pork, it was fell into a context in which simple accommodations offered to others – such as allowing a cashier allergic to peanuts not to handle peanuts or peanut butter – became the subject of vehement public objection when Muslims were asking for the same kind of thing. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Religious objections vs. medical objections
As a matter of what is a reasonable accommodation, Eugene’s points are certainly salient to me, not so much because one is a medical objection and the other religious but based on what is reasonable in specific context. I raised the example of the Target cashier who was Muslim and wished to avoid touching pork, and the contrasting example of a cashier who was allergic to peanuts, not so much to insist that the one be accommodated (although I think it should be) as to highlight the tone of the public objections to the Muslim cashiers as a further indication of community antipathy (or, more accurately, the antipathy of the vocal objectors). Interestingly, Target in fact did accommodate the Muslim employees, concluding they were required as a matter of law under Title VII to do so (regardless of the assertions by some that the request was un-American) and that the easiest accommodation was to shift them from the cash register to other positions within the company. Gregory Sisk Laghi Distinguished Chair in Law University of St. Thomas School of Law (Minnesota) MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2005 651-962-4923 gcs...@stthomas.edu http://personal.stthomas.edu/GCSISK/sisk.htmlhttp://personal2.stthomas.edu/GCSISK/sisk.html Publications: http://ssrn.com/author=44545 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Tuesday, March 06, 2012 6:29 PM To: Law Religion issues for Law Academics Subject: Religious objections vs. medical objections It may well be that there were specifically anti-Muslim statements made in the Target controversy that Greg describes. But it seems to me that, in general, the analogy between religious objections and medical objections tends to be somewhat overstated. (I thought the same of the Third Circuit Judge Alito opinion in Fraternal Order of Police v. City of Newark.) For instance, I imagine that many an employer will gladly give employees extended leave for serious illness, perhaps even weeks’ worth of paid leave and months’ worth of unpaid leave. Does it follow that it must give the same leave to people who want to go on a months-long religious pilgrimage? Likewise, an employee might make many accommodations for employees whose medical conditions make it impossible for them to do a certain job, even when that involves a far greater than de minimis cost. The employee might be required to do so by disability law, but might sometimes simply choose to do that in order to help someone who is sick or injured. Does it follow that it must make similarly high-cost accommodations for religious employees? I don’t think so. It seems to me that an employer can reasonably conclude that, as a general matter, health-based objections are less likely to be broadly shared (there will be fewer cashiers with peanut allergies than Muslim cashiers, at least in areas with a high density of Muslim immigrants), and less likely to be perceived as slights even by unbiased customers. No customer who notices that a cashier refuses to handle peanut products will take that as a personal slight; but even customers who aren’t hostile to Islam as such might perceive religious objection to the handling of pork or alcohol as a statement that the customer’s religious beliefs are (in the cashier’s view) wrong, or that the customer’s eating habits are “unclean” and drinking habits are unwholesome. And beyond this, it seems to me quite permissible (though not the only permissible view) for an employer to conclude that undoubted, scientifically provable medical risk deserves more accommodation than subjective, individually felt religious belief. Moreover, when it comes to legal compulsion, I would think (see TWA v. Hardison) that imposing the costs of one person’s religious practice on others raises objections that are more serious than just imposing the costs of one person’s disability on others would. Or am I mistaken on these things, and employers who generously provide substantial accommodations for those who are sick, allergic, or disabled must provide equally substantial accommodations for those who have religious objections? Eugene Greg Sisk writes: And given that this episode occurred at the same time that Muslim cashiers at Target asked not to be required to handle pork, it was fell into a context in which simple accommodations offered to others – such as allowing a cashier allergic to peanuts not to handle peanuts or peanut butter – became the subject of vehement public objection when Muslims were asking for the same kind of thing. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone
RE: Requirement that cabbies transport alcohol = tiny burden?
The exemption with lights to alert passengers would not have changed the culture. It would not have significantly affected anyone’s right to drink alcohol, or to transport alcohol. It would have allowed the scrupulous Muslim cabbies to live their own religious values. Hostility to religious liberty for a group that is doing no one any harm very often reflects hostility to the group. Sometimes it reflects hostility to all religion or to all exemptions for religious liberty, which is not much better. But when there is a vast outpouring on a particular claim, disproportionate to the usual debate over religious exemptions, it is more sensible to infer the first explanation, hostility to the group. Perhaps some imams said the cabbies were misreading the Koran. Good for the imams. But not relevant to the cabbies’ understanding of their own religious obligations, unless the imams persuade the cabbies. The solution that Greg and Eugene describe was ingenious, and the reaction that Greg describes is appalling. The problem we have in so many of these various culture-war issues is that each side wants to write its own values into law, and insist that the other side conform in any interaction that is the least bit public. It is not enough that I can transport alcohol; Muslim cabbies must help me transport it or lose their jobs and be barred from their industry. We cannot restore social peace until we remember that in a regime of individual liberty, the goal is to let both sides live their own values. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Tuesday, March 06, 2012 5:59 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Requirement that cabbies transport alcohol = tiny burden? Why is anger at a publicly licensed cab picking and choosing passengers according to religious belief anything like anti-Muslim animus? Cabbies can't reject passengers on race. Why should they be able to reject those with religious beliefs different from their own? If they don't want to be in the company of nonbelievers, they should find another line of work. Also-- a number of imams announced the cabbies were misreading the Koran. There was no requirement they not transport others' cases of wine. No one was asking them to drink the wine We have crossed the line from legitimate claims to accommodation into the territory where religious believers demand a right to exist in a culture that mirrors their views.That is called Balkanization Marci On Mar 6, 2012, at 4:48 PM, Sisk, Gregory C. gcs...@stthomas.edu wrote: As Eugene suggestions, the accommodation by use of lights for Muslim cabbies who objected to transporting visible liquor had every prospect of success. Even airport officials agreed that it was an ingenious solution. It would have been seamless and invisible, as the dispatcher would flag over a taxi without the light for those transporting liquor, so that the passenger would not be inconvenienced or even realize what had happened. And this accommodation was abandoned, not because of any concrete showing that it caused any problems for passenger, but by the confession the airport commission’s spokesman, because of a “public backlash” of emails and telephone calls. The spokesman said that “the feedback we got, not only locally but really from around the country and around the world, was almost entirely negative. People saw that as condoning discrimination against people who had alcohol.” And not only did the airport commission then revoke the accommodation, it began to treat the Muslim cabbies even more harshly. Where previously the punishment for refusing a fare was to be sent to the end of the line (which was a financial hardship because the wait might be for additional hours), now the commission would suspend or revoke the cab license. It is impossible, in my view, to understand the chain of circumstances as anything other than antipathy toward Muslims – and the tenor of the “public backlash” makes that even more obvious. The Somali cab driver episode is described in the introduction to an empirical study that Michael Heise and I have currently submitted to law reviews, finding that, holding all other variables constant, Muslims seeking religious accommodation in the federal courts are only about half as successful as non-Muslims. A draft of the piece is on SSRN at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1917057 Greg Gregory Sisk Laghi Distinguished Chair in Law University of St. Thomas School of Law (Minnesota) MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2005 651-962-4923 gcs...@stthomas.edu
Religious Beliefs as Criminal Defense?
http://www.philly.com/philly/insights/20120307_Judge_did_harm_in_the_name_of_tolerance.html Posted: Wed, Mar. 7, 2012, 3:00 AM Judge did harm in the name of tolerance * * * * * Yet just last week, a state trial judge there dismissed harassment charges against Talaag Elbayomy, a 46-year-old Muslim immigrant so infuriated by a costume he saw at the Mechanicsburg Halloween parade that he felt the need to physically attack the man wearing it. Ernest Perce, a member of the Parading Atheists of Central Pennsylvania, was dressed as Zombie Muhammad while a fellow nonbeliever walking alongside him was dressed as a Zombie pope. Outraged by what he perceived to be an insult against the prophet of Islam, Elbayomy rushed Perce and then attempted to choke him. * * * * * [rather than trying to paraphrase the rest of the article, I'll suggest reading it for both additional facts and the commentary by the article's author] [the case is in Cumberland Co., Pa.] Jim Maule Villanova University School of Law ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
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 On Mar 6, 2012, at 6:29 PM, Douglas Laycock wrote: The exemption with lights to alert passengers would not have changed the culture. It would not have significantly affected anyone’s right to drink alcohol, or to transport alcohol. It would have allowed the scrupulous Muslim cabbies to live their own religious values. Hostility to religious liberty for a group that is doing no one any harm very often reflects hostility to the group. Sometimes it reflects hostility to all religion or to all exemptions for religious liberty, which is not much better. But when there is a vast outpouring on a particular claim, disproportionate to the usual debate over religious exemptions, it is more sensible to infer the first explanation, hostility to the group. Perhaps some imams said the cabbies were misreading the Koran. Good for the imams. But not relevant to the cabbies’ understanding of their own religious obligations, unless the imams persuade the cabbies. The solution that Greg and Eugene describe was ingenious, and the reaction that Greg describes is appalling. The problem we have in so many of these various culture-war issues is that each side wants to write its own values into law, and insist that the other side conform in any interaction that is the least bit public. It is not enough that I can transport alcohol; Muslim cabbies must help me transport it or lose their jobs and be barred from their industry. We cannot restore social peace until we remember that in a regime of individual liberty, the goal is to let both sides live their own values. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Tuesday, March 06, 2012 5:59 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Requirement that cabbies transport alcohol = tiny burden? Why is anger at a publicly licensed cab picking and choosing passengers according to religious belief anything like anti-Muslim animus? Cabbies can't reject passengers on race. Why should they be able to reject those with religious beliefs different from their own? If they don't want to be in the company of nonbelievers, they should find another line of work. Also-- a number of imams announced the cabbies were misreading the Koran. There was no requirement they not transport others' cases of wine. No one was asking them to drink the wine We have crossed the line from legitimate claims to accommodation into the territory where religious believers demand a right to exist in a culture that mirrors their views.That is called Balkanization Marci On Mar 6, 2012, at 4:48 PM, Sisk, Gregory C. gcs...@stthomas.edu wrote: As Eugene suggestions, the accommodation by use of lights for Muslim cabbies who objected to transporting visible liquor had every prospect of success. Even airport officials agreed that it was an ingenious solution. It would have been seamless and invisible, as the dispatcher would flag over a taxi without the light for those transporting liquor, so that the passenger would not be
Re: Requirement that cabbies transport alcohol = tiny burden?
The cabbies no longer had a problem once the imams spoke, so your reference to their own religious understandings is nonsensical in this case. Just for the record, Doug, I actually know the doctrine, so I get that one can have a view different from one's religious leaders.I also read all of the cases saying that there is an absolute right to believe. I think there is real force to Steve's suggestion about common carrier rules and standards. No one defending the cabbies, particularly Doug, has adequately explained away the need for them. And I am not persuaded that this is not like the race cases. The point of the industry is to transport people, and the imposition of selection not related to travel is problematic. No one, including cabbies owns their industry. That is a rhetorical sleight of hand that attempts to build in some kind of right to choose any industry you want. The Court has assigned such interests the most deferential level of rationality review, so that is a true non-starter. Where is the concept of personal responsibility, personal choice, and accepting the consequences of one's beliefs? The world, particularly the transportation industry, should not have to be conformed to the views of any one religious set of actors. The Amish are not going after high-tech jobs and then arguing that they don't believe in high tech, are they? You tipped your hand when you referred to those whose religious world view permits alcohol consumption as looser and those who object as having more scrupulous morals. Your analysis appears to be more about your preferred public policy vision than the law. Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Sent: Wed, Mar 7, 2012 8:13 am Subject: RE: Requirement that cabbies transport alcohol = tiny burden? The exemption with lights to alert passengers would not have changed the culture. It would not have significantly affected anyone’s right to drink alcohol, or to transport alcohol. It would have allowed the scrupulous Muslim cabbies to live their own religious values. Hostility to religious liberty for a group that is doing no one any harm very often reflects hostility to the group. Sometimes it reflects hostility to all religion or to all exemptions for religious liberty, which is not much better. But when there is a vast outpouring on a particular claim, disproportionate to the usual debate over religious exemptions, it is more sensible to infer the first explanation, hostility to the group. Perhaps some imams said the cabbies were misreading the Koran. Good for the imams. But not relevant to the cabbies’ understanding of their own religious obligations, unless the imams persuade the cabbies. The solution that Greg and Eugene describe was ingenious, and the reaction that Greg describes is appalling. The problem we have in so many of these various culture-war issues is that each side wants to write its own values into law, and insist that the other side conform in any interaction that is the least bit public. It is not enough that I can transport alcohol; Muslim cabbies must help me transport it or lose their jobs and be barred from their industry. We cannot restore social peace until we remember that in a regime of individual liberty, the goal is to let both sides live their own values. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Tuesday, March 06, 2012 5:59 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Requirement that cabbies transport alcohol = tiny burden? Why is anger at a publicly licensed cab picking and choosing passengers according to religious belief anything like anti-Muslim animus? Cabbies can't reject passengers on race. Why should they be able to reject those with religious beliefs different from their own? If they don't want to be in the company of nonbelievers, they should find another line of work. Also-- a number of imams announced the cabbies were misreading the Koran. There was no requirement they not transport others' cases of wine. No one was asking them to drink the wine We have crossed the line from legitimate claims to accommodation into the territory where religious believers demand a right to exist in a culture that mirrors their views.That is called Balkanization Marci On Mar 6, 2012, at 4:48 PM, Sisk, Gregory C. gcs...@stthomas.edu wrote: As Eugene
Re: Cabbies vs. lawyers
The issue of a right or privilege to employment which often pervades discussions of rights-vs-rights clashes between religious and other individuals misses the mark in this case, it seems to me, even though in other cases I think it is worthwhile considering that people have a choice of employment, e.g., as a pharmacist, a lawyer, etc. In the case of the professions, students undergo lengthy training, including into the norms of the profession. There are plenty of exit points if the person identifies a conflict with his or her religion. By contrast, the Somali cab drivers in Minnesota drive cabs because those are one of the few jobs available in the Twin Cities that pay enough to support a family and do not require training or credentials that many of them do not have and cannot obtain without difficulty because of cultural and economic barriers. That, and the networking assistance that immigrant communities often provide each other in seeking work is why there are so many of them. There was no clear you must carry everyone rule in place before this controversy arose as far as I know, so that they could choose not to opt into this line of work. Moreover, these taxi licenses are a big investment--they used to cost $25,000, though that may have changed recently. A driver would be giving up a huge investment (for him or his boss who paid it) to simply leave the job. Although there may have been cases where the passengers were significantly inconvenienced (some of the news stories report a 20-minute wait), the complaints of the passengers sounded more in the nature of a common carrier/property right to service. A customer quote: They're here to provide service to people. . . .We were a lawful customer, and we were denied service. That's not our way of doing things. An airports commission quote: Our expectation is that if you're going to be driving a taxi at the airport, you need to provide service to anybody who wants it. Ironically, but perhaps to be expected, it is the Somali cab drivers who recognize that there is a right to religious freedom in the U.S. in these stories:) Marie A. Failinger Professor of Law Editor, Journal of Law and Religion Hamline University School of Law 1536 Hewitt Avenue Saint Paul, MN 55104 U.S.A. 651-523-2124 (work phone) 651-523-2236 (work fax) mfailin...@hamline.edu (email) Steven Jamar stevenja...@gmail.com 3/6/2012 7:49 PM Are we to do away with the common carrier rules that have prevailed for centuries? Various businesses are different from one another and have long been treated so according the law. No one has a right to be a cab driver if they cannot comply with the common carrier rules any more than people have the right to be lawyers if they cannot comply with the requirements of our profession. This is not an argument about whether those who control the cabs and make the rules should or should not try to accommodate the demand to not carry someone who has an obvious wine bottle in their possession but will carry someone who has hidden it. But it is not a right to be recognized as a constitutional one. We should not constitutionalize every demand for accommodation. We can do a lot (as indeed we do) through statutes and regulations even in the absence of a recognized constitutional right. -- 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/ There is no cosmic law forbidding the triumph of extremism in America. Thomas McIntyre ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Once it took the step of opening play to non-Christians
I think I understand Paul's point, and the arguments in favor it, but I wonder whether it might get things backward. TAPPS could likely have focused itself on Christian private schools with little difficulty for it. (It might have benefited from including secular schools, but it likely could have survived just as well limited to Christian schools.) On the other hand, my sense is that in such situations it's a great benefit to minority schools - both secular schools and especially Jewish schools - to be able to join such an association, since otherwise there might be very few schools for them to play against. In many places, an all-Orthodox-Jewish league would have very few teams, and very long travel times to games. So TAPPS generally did Jewish schools a good turn by letting them participate. And if it hadn't let them participate, I suspect many would have faulted them for being unfairly exclusionary, with the argument being What's it to you that the school is Jewish? But now TAPPS is being told that by being somewhat more open, it now incurs this extra obligation. That strikes me as both creating perverse incentives, and being a poor reward for TAPPS' moderate ecumenicalism, because it demands that this moderate ecumenicalism lead to considerably more demanding ecumenicalism. As to the guest/host analogy, I would think that this too cuts the opposite direction at least as much as in the direction suggested below (and perhaps more). If I invite someone to my home, or into my private association, I surely would feel some impulse to accommodate him; if someone comes for dinner but says that he can't eat pork (and doesn't otherwise demand a kosher kitchen), I'll probably try to give him a non-pork option even if the main course is ham. But I would hope that he would feel an even stronger impulse not to reward my hospitality with excessive demands, or with repeating his demands after I say no (even if I'm being not as hospitable as I might be in saying so) - and I would certainly hope that he wouldn't reward my hospitality with a lawsuit. Eugene Paul Horwitz writes: In this case, it seems to me that the road to a reasonable resolution of the problem lies in the fact that TAPPS opened itself to a situation in which it welcomed the possibility of sporting events involving others whose religious needs might require accommodation. If the league had remained solely devoted to Christian schools and, in effect, had valued Christian community over sports or all-state intramural play itself, then refusing to change its schedule would a) be reasonable and b) not be much of a problem, since the issue would be unlikely ever to arise. Once it took the step of opening play to non-Christians, however, including those with an equally thick set of religious commitments, then common sense, if not simply being a good host, would suggest that the league ought to anticipate and accommodate the religious needs of its guests. But certainly the work here is not done by invoking common sense alone. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Cabbies vs. lawyers
I already said, in response to Sandy, that if a religious individual or group occupies a blocking position, the balance of interests changes. Whether they occupy such a position is a question of fact. You seem to assume axiomatically that they always prevent people from finding cab, or whatever other service we're talking about. But at least you seem to have backed off finding a problem with them making religious judgments about nonbelievers. On Tue, 6 Mar 2012 21:35:11 -0500 (EST) hamilto...@aol.com wrote: Doug-- I don't know who the royal we is in your comment, but I'm not making a complaint. I'm making what is surely an obvious philosophical, analytical point. The person carrying the wine is not being picked up because they are carrying wine, which presumably is permitted in their religious world view. If you are going to accommodate the religious cabbie, you are going to burden the religious passenger with wine, assuming a finite number of cabbies. That is why a neutral, common carrier rule is preferable to the religion-specific exemption from service you seem to be advocating. I assume you favor the federal civil right that forbids a private employer from discriminating on the basis of religion? How is this any different? A cab is not a religious organization. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu; hamilton02 hamilto...@aol.com Sent: Tue, Mar 6, 2012 9:15 pm Subject: Re: Cabbies vs. lawyers I thought we were concerned about people getting home from he airport. Now the complaint is that the cabbie is making a religious judgment about the passenger. A religious judgment is a form of belief, and I thought it was common ground that belief is protected absolutely, as the Court said in Cantwell v. Connecticut. Lord knows we are all making judgments about the cabbies. Those of us who drink, or who have looser standards on any other issue than more morally scupulous adherents of various religions, certainly cannot have a right for those more scuprulous souls not to make judgments about us. On Tue, 6 Mar 2012 20:52:35 -0500 (EST) hamilto...@aol.com wrote: That is, in my view, a misstatement of the facts. The person carrying the alcohol holds a religious worldview that permits them to drink, carry, and transport alcohol. The cabdriver refusing to transport them is making a religious judgment about the passenger. The only passengers you can be certain this cabdriver will always transport are those with the same religious worldview. Discounting the religious world view of the passenger leads to a one-sided analysis. Again, just as in the contraception context, the contemporary discourse generally has discounted the religious beliefs of the person who is affected by the accommodation. You aren't going to find many pairings of people in the US where both don't have some religious beliefs/world view. Religious claimants who want accommodation freight their arguments with claims of the religious vs. the secular, but that is a rhetorical ruse. In fact, a religious individual demanding an accommodation more often than not burdens someone who does not share their religious world view but who has a competing world view. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 They aren’t discriminating against anyone on the basis of that person’s religion. The cabbies’ own religious beliefs are leading them to discriminate against people who are openly carrying alcoholic beverages. I’m not sure I know of any religion that calls on its adherents to carry alcoholic beverages openly. Mark S. Scarberry Pepperdine Univ. School of Law Malibu, CA 90263 (310)506-4667 Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Scarberry, Mark mark.scarbe...@pepperdine.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Tue, Mar 6, 2012 8:40 pm Subject: RE: Cabbies vs. lawyers They aren’t discriminating against anyone on the basis of that person’s religion. The cabbies’ own religious beliefs are leading them to discriminate against people who are openly carrying alcoholic beverages. I’m not sure I know of any religion that calls on its adherents to carry alcoholic beverages openly. Mark S. Scarberry Pepperdine Univ. School of Law Malibu, CA 90263 (310)506-4667 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf
RE: Point of Information -- not quite on topic
I had an odler (jewsih) colleague who told me that one of the high points of his life was playing at Wriggley Field in the Catholic League championship game. This was in the late 30's or 40's. Marc From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Tuesday, March 06, 2012 05:23 To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Point of Information -- not quite on topic Marty--Are nonJews, non Israelis included? That would be a surprise to me. I know kids recruited and only Jews were We were talking about leagues, not individual players. The Catholic leagues are not open to my knowledge to non Catholic schools. Marci On Mar 6, 2012, at 12:42 PM, Marty Lederman lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote: the Maccabiah Games feature only Jewish athletes. Nope. See http://www.ynetnews.com/articles/0,7340,L-332,00.html It's open to all Israeli citizens without regard to religion, and to Jews who are not citizens (presumably because they have an automatic right of citizenship, although I don't know that for a fact). I'd also be very, very surprised if many Catholic Leagues exclude participants based on religion; perhaps they're confined to certain church teams, or students from Catholic schools, etc. -- but an actual personal religious test for individuals? On Mon, Mar 5, 2012 at 10:06 AM, Marci Hamilton hamilto...@aol.commailto:hamilto...@aol.com wrote: There is significant precedent for one-religion sporting events, which I assume everyone agrees is fine.Catholic Leagues exist in numerous cities And the Maccabiah Games feature only Jewish athletes. TAPPs' first mistake appears to have been opening itself up to religious organizations with different religious needs and demands. Marci ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Minneapolis Taxicab Controversy
Can anyone point me to a good, thorough account of what happened in Minneapolis, including (i) the explanations, if any, the cabbies offered for why the lack of the exemption burdened their religious exercise (did it mean they were unable to accept work as other forms of common carriers, such as pilots, UPS/FedEx delivery employees, bus drivers, etc.?); (ii) how the controversy was resolved as a matter of law; and (iii) what became of the Muslim drivers after the exemption was revoked. Thanks in advance. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Cabbies vs. lawyers
I rarely if ever talk about nonbelievers because they are rare in the US. My point was that the cabbie was engaging in religious discrimination by refusing to carry someone whose conduct violated his religious beliefs. And that the one carrying the wine was operating in their own religious world view. The cabbie is like the employer who refuses to hire based on religion (his own). Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: hamilton02 hamilto...@aol.com; dlaycock dlayc...@virginia.edu; religionlaw religionlaw@lists.ucla.edu Sent: Tue, Mar 6, 2012 10:29 pm Subject: Re: Cabbies vs. lawyers I apologize if I was too quick to generalize. Maybe you meant that it is OK to make religious judgments about nonbelievers, but forbidden to make religious judgments about drinkers. An implicit distinction that I completely missed. On Tue, 6 Mar 2012 22:15:53 -0500 (EST) hamilto...@aol.com wrote: Doug-- This is actually hilarious. Reread my previous posts. You are not even in the ballpark, as attested to your notion that I was ever discussing religious judgments about nonbelievers. I'm almost certain that I was talking about believers and believers. I haven't backed off of whatever you think I said, because I never said it. In any event, this horse is officially beaten in my view. Marci I already said, in response to Sandy, that if a religious individual or group occupies a blocking position, the balance of interests changes. Whether they occupy such a position is a question of fact. You seem to assume axiomatically that they always prevent people from finding cab, or whatever other service we're talking about. But at least you seem to have backed off finding a problem with them making religious judgments about nonbelievers. Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: hamilton02 hamilto...@aol.com; dlaycock dlayc...@virginia.edu; religionlaw religionlaw@lists.ucla.edu Sent: Tue, Mar 6, 2012 9:38 pm Subject: Re: Cabbies vs. lawyers I already said, in response to Sandy, that if a religious individual or group occupies a blocking position, the balance of interests changes. Whether they occupy such a position is a question of fact. You seem to assume axiomatically that they always prevent people from finding cab, or whatever other service we're talking about. But at least you seem to have backed off finding a problem with them making religious judgments about nonbelievers. On Tue, 6 Mar 2012 21:35:11 -0500 (EST) hamilto...@aol.com wrote: Doug-- I don't know who the royal we is in your comment, but I'm not making a complaint. I'm making what is surely an obvious philosophical, analytical point. The person carrying the wine is not being picked up because they are carrying wine, which presumably is permitted in their religious world view. If you are going to accommodate the religious cabbie, you are going to burden the religious passenger with wine, assuming a finite number of cabbies. That is why a neutral, common carrier rule is preferable to the religion-specific exemption from service you seem to be advocating. I assume you favor the federal civil right that forbids a private employer from discriminating on the basis of religion? How is this any different? A cab is not a religious organization. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu; hamilton02 hamilto...@aol.com Sent: Tue, Mar 6, 2012 9:15 pm Subject: Re: Cabbies vs. lawyers I thought we were concerned about people getting home from he airport. Now the complaint is that the cabbie is making a religious judgment about the passenger. A religious judgment is a form of belief, and I thought it was common ground that belief is protected absolutely, as the Court said in Cantwell v. Connecticut. Lord knows we are all making judgments about the cabbies. Those of us who drink, or who have looser standards on any other issue than more morally scupulous adherents of various religions, certainly cannot have a right for those more scuprulous souls not to make judgments about us. On Tue, 6 Mar 2012 20:52:35 -0500 (EST) hamilto...@aol.com wrote: That is, in my view, a misstatement of the facts. The person carrying the alcohol holds a religious worldview that permits
Discrimination against people with religious motivations for their actions
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] 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 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see
RE: Requirement that cabbies transport alcohol = tiny burden?
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 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Requirement that cabbies transport alcohol = tiny burden?
A point of information about Hershberger that is relevant here to the internal debate within the Somali community about what is required (per what my colleagues who represented the Amish said.) The Amish were split on the question of whether they could, under their community regulations, put an orange triangle on their buggies (the free exercise objection), whether the state's later solution of a black and white triangle with reflective tape was permissible, or whether they should reject the triangle altogether. As with Kiryas Joel, this controversy caused rifts within the Amish community. Perhaps that was in part because the Ordnungen of Amish communities are apparently local, just as the juridical schools that Muslims follow are often local or even sub-local. But, that's a religious freedom reason to try to work out a workable administrative accommodation rather than relying on the courts to resolve rights vs. rights cases, if one believes that part of the value of religious freedom is the value of religious communities. Marie A. Failinger Professor of Law Editor, Journal of Law and Religion Hamline University School of Law 1536 Hewitt Avenue Saint Paul, MN 55104 U.S.A. 651-523-2124 (work phone) 651-523-2236 (work fax) mfailin...@hamline.edu (email) Volokh, Eugene vol...@law.ucla.edu 3/7/2012 2:23 PM Yes, State v. Hershberger, 462 N.W.2d 393 (Minn. 1990). Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Wednesday, March 07, 2012 12:18 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Requirement that cabbies transport alcohol = tiny burden? Eugene-- just a point of information--is there a lead MN Sup Court case that applying strict scrutiny in cases involving neutral generally applicable laws and worship conduct that is illegal? Thanks! On Mar 7, 2012, at 3:11 PM, Volokh, Eugene vol...@law.ucla.edu wrote: 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 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Discrimination against people with religious motivations for their actions
Eugene--I'm going to focus on the third, relevant issue. The restaurant examples are not analogous because one can do the act and the other cannot do it. In the cabbie situation neither can The cabbie who refuses to carry alcohol for secular reasons loses his job because he is refusing to do his job. The cabbie who refuses for religious reasons is subject to the same rule. The only question is whether there should be an exemption. Under Smith and Hershberger even, I think the religious cabbie loses. So then it is just a matter of public policy.I will leave that to the lawmakers I would add that Hershberger was decided at the height of the misleading doctrinal hysteria over Smith. It is unfortunate that the state Courts were persuaded to make either/or decisions about free exercise in that context They like Congress were given a false choice You have to give her credit-- Justice OConnor conceded that there were definite arenas where SS had not applied Since then, there has been a lot more public education about the actual impact of SS on the vulnerable and affected. That is why the state rfras slowed down considerably and the W Va version is going nowhere. I apologize for going so far off topic Marci On Mar 7, 2012, at 6:55 PM, Volokh, Eugene vol...@law.ucla.edu wrote: So let me make sure I understand your view correctly: 1. A secular restaurant owner who refuses to deliver to an abortion provider for secular reasons is not guilty of religious discrimination in violation of public accommodations laws. (Assume such laws generally apply to discrimination based on religion in restaurant deliveries.) 2. A religious restaurant owner who refuses to deliver to an abortion provider for religious reasons is indeed guilty of religious discrimination in violation of public accommodations laws. (Assume such laws generally apply to discrimination based on religion in restaurant deliveries.) Is that so? And, if so, doesn’t that make the law itself into an unconstitutional religious discrimination, given that it treats precisely the same conduct differently based on the religious motivation of the actor, in violation of the Lukumi Babalu principle? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Wednesday, March 07, 2012 3:39 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Discrimination against people with religious motivations for their actions I have to say that I find Steve's analysis more sound and based on common sense. Marci On Mar 7, 2012, at 3:07 PM, Volokh, Eugene vol...@law.ucla.edu 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
RE: Discrimination against people with religious motivations for their actions
So let me make sure I understand your view correctly: 1. A secular restaurant owner who refuses to deliver to an abortion provider for secular reasons is not guilty of religious discrimination in violation of public accommodations laws. (Assume such laws generally apply to discrimination based on religion in restaurant deliveries.) 2. A religious restaurant owner who refuses to deliver to an abortion provider for religious reasons is indeed guilty of religious discrimination in violation of public accommodations laws. (Assume such laws generally apply to discrimination based on religion in restaurant deliveries.) Is that so? And, if so, doesn’t that make the law itself into an unconstitutional religious discrimination, given that it treats precisely the same conduct differently based on the religious motivation of the actor, in violation of the Lukumi Babalu principle? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Wednesday, March 07, 2012 3:39 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Discrimination against people with religious motivations for their actions I have to say that I find Steve's analysis more sound and based on common sense. Marci On Mar 7, 2012, at 3:07 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu 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.edumailto:religionlaw-boun...@lists.ucla.edu
Religious Liberty and the Calendar
The calendar issues are hard. Very often, there is no good solution. In the recent Texas case, involving small numbers of athetes, fans, and games, and an opposing team that was willing to reschedule, the choice to reschedule seems easy. The TAPPS resistance to rescheduling seemed to reflect either bureaucratic intransigence or more active intolerance, and the comments reported in the Times seemed to to tilt toward the latter. A third possibility that I had not earlier considered is that the organization has come to think of itself as just an association of Christian schools, free to act on Christian premises. That is not how it holds itself out, and that view of the organization seems far removed from its primary functions, but that may be how the Board has come to think of it. The larger problem is that the calendar is fundamentally and inescapably Christian. Sunday is the day when the fewest government services function and when the fewest businesses are open. Jews and Sabbatarian Christains are secondarily protected; Saturday is the day when the next fewest things are open. The academic calendar in particular is arranged so that classes never meet on Sunday, and therefore never on Easter, and there is a long holiday at Christmas (for churches on the Latin calendar -- not so good for Christians on the Orthodox calendar). So the principal day of Christian worship and its two principal holy days are always covered. The main problem is Saturday and Sunday. Those two days are now filled with a vast array of activities for which people need to be off work in order to watch or participate -- athletic and recreational events of all kinds; weddings, graduations, and other ceremonies; meetings and conferences; etc., etc. Some of these events involve religiously diverse participants. Sometimes the resulting conflicts have no good solution. Some of these events could not occur at all if they were not on the weekend. Some involve thousands of people, many with travel reservations, and venues reserved months or years in advance. So sometimes accommodation is simply not feasible. I think we all understand that. Other times it is. And I think we nearly all understood that in the Texas case. I would argue that we should solve these problems where we can, and that we not start the discussion by assuming that the calendar is neutral and that only the religious minorities are asking for special treatment. The rest of us have already gotten special treatment. The calendar is set up for the convenience of the majority. That was a majority defined by religion when the current weekend emerged. Today that majority may be more of a coalition that includes the secular. But however we define the shifting majority that controls the calendar, it blinks reality to think it is neutral. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Basketball tournaments on the Sabbath
So only those practices that are mandatory are relevant? Isn't that a centrality requirement? Marci On Mar 3, 2012, at 4:50 PM, Alan Armstrong alanarmstrong@verizon.net wrote: I think that is not relevant. I thought the Saturday afternoon/evening mass was for those who could not make it to church Sunday morning. An Orange County Register columnist, Frank Mickadeit, called it the slakers' mass. Alan Law Office of Alan Leigh Armstrong Office 18652 Florida St., Suite 225 Huntington Beach CA 92648-6006 Mail 16835 Algonquin St., Suite 454 Huntington Beach CA 92649-3810 714 375 1147 fax 714 782 6007 a...@alanarmstrong.com Serving the family and small business since 1984 NOTICE: Any tax advice in this e-mail, including attachments, can not be used to avoid penalties or for the promotion of a tax related matter. On Mar 3, 2012, at 12:21 PM, Marci Hamilton wrote: Lots of Catholics go to Saturday evening mass. Relevant? On Mar 3, 2012, at 2:55 PM, Alan Armstrong alanarmstrong@verizon.net wrote: My understanding is that Jewish and 7th day adventists consider sabbath as going from sundown on Friday to sundown on Saturday. I do not know of any christian denominations that use sundown Saturday to sundown on Sunday as the Lord's day.Therefore a Saturday night game should be acceptable to all. A little thought and common sense and we would need fewer lawyers. Alan Law Office of Alan Leigh Armstrong Office 18652 Florida St., Suite 225 Huntington Beach CA 92648-6006 Mail 16835 Algonquin St., Suite 454 Huntington Beach CA 92649-3810 714 375 1147 fax 714 782 6007 a...@alanarmstrong.com Serving the family and small business since 1984 NOTICE: Any tax advice in this e-mail, including attachments, can not be used to avoid penalties or for the promotion of a tax related matter. On Mar 2, 2012, at 11:48 AM, Douglas Laycock wrote: Some of you may have seen the story in the Times the other day about the Beren Hebrew Academy in Houston, whose basketball team has reached the state semi-finals of the Texas Association of Private and Parochial Schools tournament. The semifinal game was scheduled for tonight; the Academy is Orthodox and observant, and could not play. The other school was willing to reschedule, but the TAPPS Board voted 8-0 not to allow that. Most TAPPS members are church affiliated, and as a matter of policy, it never schedules games on Sunday. Beren parents and students filed a lawsuit this morning in the Northern District of Texas, alleging unconstitutional religious discrimination, Texas RFRA, and breach of contract (based on a provision in the TAPPS bylaws). The complaint’s state action theory was that the game was scheduled to be played in a public school gym, which is surely not enough. The contract claim looked stronger, judging only by the complaint. Richard Friedman at Michigan tells me that TAPPS caved as soon as the complaint was filed, and that the game will begin imminently and will be completed before sunset. If your position is utterly untenable as a matter of public relations, it may not matter that the other side’s state action theory is very weak. But they had to file the lawsuit before common sense could prevail. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Minneapolis Taxicab Controversy
Just to add to my previous post in response to Marty's questions: 1. Not all of the Muslim cabbies felt religiously obliged to refuse to carry passengers with open displays of alcohol (or dogs) as I remember. However, there was a fatwa issued by a local Muslim organization saying that they shouldn't do it. Since a fatwa is a legal opinion, it certainly provides legal authority for the cabbies' insistence that they shouldn't do it; it wasn't simply their personal view per se. 2. Airport regulation 102 now provides that taxi drivers cannot refuse to take a passenger unless he refuses to pay, is seriously intoxicated or is a physical threat. One provision of the section also prohibits drivers from refusing service based on race, gender, religion, national origin, ethnicity, marital status, disability, sexual orientation, or age, or having a service dog. 3. The cabbies' appeal for an injunction was denied by the trial court and upheld by Minnesota Court of Appeals in 2008 on the basis that they had an adequate remedy at law--any license denial could be appealed and the cabbie could keep his license in the meantime. Dolal v. Metropolitan Airports Com'n, 2008 WL 4133517 http://minnesota.publicradio.org/display/web/2008/09/09/muslim_cabs_court/ I couldn't find much recently about the effect on Muslims serving the airport except this related news, in January, a major airport taxi company here fired Somali drivers who protested the refusal of the company to sit down and negotiate their working conditions http://minnesota.publicradio.org/collections/special/columns/news_cut/archive/2012/01/report_somali_cabbies_learn_pr.shtml Marie A. Failinger Professor of Law Editor, Journal of Law and Religion Hamline University School of Law 1536 Hewitt Avenue Saint Paul, MN 55104 U.S.A. 651-523-2124 (work phone) 651-523-2236 (work fax) mfailin...@hamline.edu (email) Marty Lederman lederman.ma...@gmail.com 3/7/2012 5:35 AM Can anyone point me to a good, thorough account of what happened in Minneapolis, including (i) the explanations, if any, the cabbies offered for why the lack of the exemption burdened their religious exercise (did it mean they were unable to accept work as other forms of common carriers, such as pilots, UPS/FedEx delivery employees, bus drivers, etc.?); (ii) how the controversy was resolved as a matter of law; and (iii) what became of the Muslim drivers after the exemption was revoked. Thanks in advance. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Requirement that cabbies transport alcohol = tiny burden?
Eugene-- just a point of information--is there a lead MN Sup Court case that applying strict scrutiny in cases involving neutral generally applicable laws and worship conduct that is illegal? Thanks! On Mar 7, 2012, at 3:11 PM, Volokh, Eugene vol...@law.ucla.edu wrote: 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 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
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 On Mar 6, 2012, at 8:35 PM, Rienzi, Mark L wrote: I don't think it is fair to the cabbies to say that they are discriminating on the basis of religion, or that the alcohol is a proxy by which they are trying to do so. If they said they wouldn't drive anyone wearing a priest's collar or a nun's habit, that would be discriminating on the basis of religion, and the item would be a fair proxy for religious discrimination. But it seems entirely more likely here that they are not discriminating at all based on the religious beliefs of their passengers--presumably they are willing to drive Christians, Jews, Muslims, atheists and anyone in between. Rather, their request is simply to not be forced to personally participate in an activity (the transporting of alcohol) which, for them, would be illicit. I don't think the fact that they consult their own religious beliefs in that decision can make their request into religious discrimination. Mark From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Steven Jamar [stevenja...@gmail.com] Sent: Tuesday, March 06, 2012 8:18 PM To: Law Religion issues for Law Academics Subject: Re: Cabbies vs. lawyers Are not the cabbies discriminating against customers on the basis of religion? Or is the alcohol proxy enough to remove that taint? Sent from my iPhone On Mar 6, 2012, at 7:38 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: In a sense this may be obvious, but it might be worth restating: One thing that is facing the cabbies is that for complex reasons cabbies are stripped of liberties that the rest of us take for granted. If we disapprove of alcohol – whether because we’re Muslim or Methodist, or because a close family member is an alcoholic or was injured by a drunk driver – we are free to refuse to fix the plumbing in a bar, to give legal advice to Coors, or to refuse to let people carrying beer bottles onto our business property. To be sure, our right to freedom of choice may have been limited in some ways by bans on race discrimination, sex discrimination, religious discrimination, and the like. But whether right or wrong those bans still leave us mostly free to choose whom to do business with. The cab drivers thus want only the same kind of liberty that the rest of us generally have. Their argument isn’t a pure freedom of choice argument (which the law has rightly or wrongly denied to cabbies generally) but a freedom of choice argument coupled with a religious freedom argument; but that simply shows that this freedom of choice is even more important to them than it generally is to the rest of us. This doesn’t mean that they should win. Maybe there’s a really good reason for denying cabbies, including religious objectors, this freedom of choice when it comes to transporting alcohol. But it does cast a different light on objections to people “choosing [clients] according to [the choosers’] religious belief,” or “demand[ing] a ‘right’ to exist in a culture that mirrors their views.” No-one makes such objections when we as lawyers pick and choose our clients; no-one faults us for choosing them according to our religious beliefs (unless those beliefs require race or sex discrimination or such); no-one says that lawyers who refuse to work for alcohol distributors demand a right to exist in a culture that mirrors our views. Likewise, I don’t think it’s fair to condemn cabbies for seeking, in this one area that is unusually important to them, the same freedom that lawyers have. Eugene From:
RE: Discrimination against people with religious motivations for their actions
So I’m not sure that I understand. As I understand Steve’s post, his claim is that when X discriminates against Y based on X’s religious opposition to Y’s actions, even when they are secular actions such as transporting alcohol, that is religious discrimination and potentially actionable as such. Marci, is that the analysis that you endorse as sound? Whether the cabbies should get a religious exemption, under Hershberger, not from a religious discrimination ban but from a common-carrier must-serve requirement strikes me as an entirely different question from the one I was debating with Steve. Eugene Marci Hamilton writes: Eugene--I'm going to focus on the third, relevant issue. The restaurant examples are not analogous because one can do the act and the other cannot do it. In the cabbie situation neither can The cabbie who refuses to carry alcohol for secular reasons loses his job because he is refusing to do his job. The cabbie who refuses for religious reasons is subject to the same rule. The only question is whether there should be an exemption. Under Smith and Hershberger even, I think the religious cabbie loses. So then it is just a matter of public policy.I will leave that to the lawmakers On Mar 7, 2012, at 6:55 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: So let me make sure I understand your view correctly: 1. A secular restaurant owner who refuses to deliver to an abortion provider for secular reasons is not guilty of religious discrimination in violation of public accommodations laws. (Assume such laws generally apply to discrimination based on religion in restaurant deliveries.) 2. A religious restaurant owner who refuses to deliver to an abortion provider for religious reasons is indeed guilty of religious discrimination in violation of public accommodations laws. (Assume such laws generally apply to discrimination based on religion in restaurant deliveries.) Is that so? And, if so, doesn’t that make the law itself into an unconstitutional religious discrimination, given that it treats precisely the same conduct differently based on the religious motivation of the actor, in violation of the Lukumi Babalu principle? Eugene From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Wednesday, March 07, 2012 3:39 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Discrimination against people with religious motivations for their actions I have to say that I find Steve's analysis more sound and based on common sense. Marci On Mar 7, 2012, at 3:07 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu 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
Re: Cabbies vs. lawyers
Prof. Jamar asks an important question. Is it relevant, though, that the US has not adopted the cab rank rule. I wonder--a genuine question--how often elites are forced into the genuine dilemmas posed by being a common carrier. The cabbies have far fewer career options than any reader of this list. (To be sure, we are common cariers vis-a-vis our students: we can't refuse to teach lawyering skills to would-be tobacco lawyers or others likely to engage in what we regard as immoral, but, alas, legal behaviors.). I don't know exactly where to go with this. I agree, for example, that postal workers and pharmacists should be treated as common carriers. As I've already written, I just don't think there is a neat principle that will resolve close cases. Sandy From: religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Tue Mar 06 19:49:13 2012 Subject: Re: Cabbies vs. lawyers Are we to do away with the common carrier rules that have prevailed for centuries? Various businesses are different from one another and have long been treated so according the law. No one has a right to be a cab driver if they cannot comply with the common carrier rules any more than people have the right to be lawyers if they cannot comply with the requirements of our profession. This is not an argument about whether those who control the cabs and make the rules should or should not try to accommodate the demand to not carry someone who has an obvious wine bottle in their possession but will carry someone who has hidden it. But it is not a right to be recognized as a constitutional one. We should not constitutionalize every demand for accommodation. We can do a lot (as indeed we do) through statutes and regulations even in the absence of a recognized constitutional right. -- 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/ There is no cosmic law forbidding the triumph of extremism in America. Thomas McIntyre ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Discrimination against people with religious motivations for their actions
I hope it comes as no surprise to anyone on this list that there are irreconcilable doctrinal problems with religious liberty no matter how one looks at it. Religious motivation matters. Particular facts matter. Details matter. Eugene's hypothetical restaurant is not analogous to the cabbies in Minneapolis or in general. I am not at all sure that Lukumi extends to private conduct and general anti-discrimination laws. In that case the state singled out a particular religion by ordinance -- not the application of an anti-discrimination law. There is also a world of difference between actions by private parties that discriminate on the basis of religion and ordinances by states (or cities) that ban particular religious practices. If the past decades of religious jurisprudence have taught us anything it should be to by chary of expanding any decision by the court much beyond its peculiar facts. Witness the recent distinguishing of Smith. Who knew? I do not contend that these cases are easy or that they are or can be decided with great consistency -- indeed, I contend exactly the opposite. Motivation matters and I cannot transmute a religious motivated action against someone into a neutral action without any religious motivation. The response to the accommodation in Minneapolis shows a societal anti-Islam animus. Who is surprised? But the claim of a person who has been denied a ride on a common carrier for no reason other than doing something he has an absolutely legal right to do and is denied the ride because of a religious belief by the driver is sure going to feel like religious discrimination whatever niceties one might want to draw. And in fact IS religiously-motivated action excluding someone. It is. Should it be permitted? Should it be accommodated? Probably, in the absence of showing hardship to riders. But if it s the last cab of the night? No way. I generally think we should accommodate religious exercise rights of employers and service providers and everyone to the extent practicable. But that is a long way from finding a constitutional or statutory right to engage in such conduct when engaged in the provision of such public services. There is no constitutional principle or statutory provision that would or should require that. The situations are too nuanced for hard-edged application of generally applicable rules in this area. Minneapolis Airport Authority approached it sensibly and if the solution had been implemented and if it had worked as planned (I have doubts, but maybe it would have), then that is what should be done. We are not a secular universalist society -- not by a long shot. Nor should we be -- it is not within our traditions and experience and our polyglot amalgam of people -- but nor should it be heavy-handed rights-based regime with what becomes a unit veto. Steve -- 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/ Never doubt that the work of a small group of thoughtful, committed citizens can change the world. Indeed, it’s the only thing that ever has. Margaret Meade ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
