I would think that narrow tailoring requires a good deal more
justification than that. Can it really be that a ban on discrimination against
passengers who carry alcohol – discrimination that, outside the context of
taxicabs and a few similar common carriers, would be legal in nearly all
contexts (employment, public accommodation, contracting, etc.) in nearly all
jurisdictions – passes strict scrutiny simply because carving out an exemption
might lead to some hypothetical slippery slope to allowing race discrimination?
If the interest in banning race discrimination is so compelling in various
contexts, then that should justify applying race discrimination law uniformly
in those contexts. But I don’t see how that interest would justify applying
laws banning other forms of discrimination, such as discrimination based on
carrying alcohol.
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marc Stern
Sent: Wednesday, March 07, 2012 7:01 PM
To: 'religionlaw@lists.ucla.edu'
Subject: Re: Discrimination against people with religious motivations for their
actions
Might I suggest another way of looking at this debate: race. Not the race of
the drivers and that of their passengers. instead i take it as common ground
that no one would tolerate taxi drivers turning down passengers on the basis of
race. Does it follow that we should treat all prohibited grounds of
discrimination with the same rigor, both as a matter of primary law-all
forbidden categories are treated equal-or because once the prohibition on
discrimination is weakened, even in good cause, the pressure for other
exemptions will grow and will weaken the non discrimination norm in regard to
race. The latter argument was raised after Boerne when the question was whether
to include civil rights claims in a statute protecting religious liberty..
Marc
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