Sandy: It sounds like we agree on much here, and I'm glad about that. But let me ask you: What do you think this should mean for religious accommodation more generally? After all, the same problem can easily come up - and, I'm sure, does come up - in lots of other cases as well. Take the vague "reasonable accommodation" standard; add the Title VII asymmetric fee-shifting, in which a prevailing employee gets fees paid but a prevailing employer doesn't; add the cost of litigation; add the increasing availability of public interest law firms taking the religious objectors' cases even when the expected value of the claim is low; throw in the possibility that some religious beliefs might be seen as more sympathetic by a jury than others; and you have a recipe for many incidents of what you label "extortion."
What's your solution? Repeal the religious accommodation requirement? Repeal asymmetric fee-shifting (and, if so, in all Title VII cases or only in religious accommodation cases)? Replace the general "reasonable accommodation" test with specific rules for specific cases (e.g., objections to clothing rules, demands for religious holidays off, objections to specific job tasks, etc.)? All of these are plausible; I'm just wondering what your recommendation would be, given your concerns about "extortion." (I use the quotation marks only because I'm still not sure exactly what "extortion" means here, and whether it, for instance, requires lack of a good-faith belief that one's claim might well win in court.) Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Sanford Levinson Sent: Tuesday, April 26, 2011 9:15 AM To: Law & Religion issues for Law Academics Subject: RE: Religious accommodation and "accomplice" objections I think Eugene is correct that it is fruitless to discuss the driver's views in the language of "reasonableness-unreasonableness." His example of kashruth and the prohibition of mixing chicken and milk is dispositive! So it really does boil down to a utilitarian calculus of the costs to the state (or a business) of accommodating the (sincerely held) convictions of an employee, however reasonable or unreasonable they might appear to outsiders. I also thank Marie Failinger for her sensitive contribution to this discussion. I reacted the way I did, I suspect, because, living in Texas, I am inclined to adopt a "hermeneutics of suspicion" with regard to the willingness of the city to pay $21,500 to a radically anti-abortionist bus driver, especially given that those in control of the state right now are slashing public budgets with dire consequences for anyone who is not, for example, a well-paid tenured law professor. (I recognized that the strongest argument for the settlement is the good-faith belief that it simply would have cost more of the taxpayers money to resist what I was quite willing to label "extortion." sandy From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Tuesday, April 26, 2011 11:04 AM To: Law & Religion issues for Law Academics Subject: Religious accommodation and "accomplice" objections In many religious accommodation controversies, the claimants object to doing something because they think such an act would make them accomplices to sin. The bus driver / Planned Parenthood case is one example; another is some landlords' objection to renting to unmarried couples (or couples in a same-sex romantic relationship); and of course the Supreme Court's Thomas case, involving someone who refused to work in munitions production is another. In such cases, I often hear arguments that the objector's worry about being an accomplice is unreasonable. He can't really know that the people he's helping are actually going to sin, one argument goes. His actions aren't really helping the sin in any serious way, another argument goes. He's not being told to actually do anything sinful, a variation goes. It seems to me that these responses to the objection are misguided, at least if the claimant sincerely believes that his actions do make him an accomplice in his understanding of his religion. (The responses are perfectly plausible as attempts to persuade the objector, but I'm assuming here the objector is unpersuaded.) 1. To begin with, I don't see how a person's religious views of accomplice responsibility can be judged by secular standards, and rejected if they are seen as "unreasonable" or "ludicrous" under secular standards, any more than his other religious views can be so judged. The notion that you can't eat milk together with chicken might seem quite unreasonable to many people, especially given that the asserted foundation for it is the prohibition on cooking a young goat in its mother's milk. But religious views don't need to be reasonable to be protected. A religious accommodation argument can be rejected (assuming we have an underlying legal rule providing for some such accommodations) because the belief is not sincerely held, or because granting an exemption is too costly for the employer or for the government. But I don't think it can be rejected on the grounds that we aren't persuaded by the claimant's theory of accomplice responsibility, any more than it can be rejected on the grounds that we aren't persuaded by the claimant's theory of morality or of scriptural interpretation. 2. But beyond this, what makes someone an accomplice to misbehavior is a difficult question that even our own legal system doesn't deal with consistently. When it comes to criminal accomplice liability, many states require that the defendant have the purpose to assist the underlying crime. But some states require only that the defendant have the knowledge that he is assisting the crime. Some specialized statutes allow a conviction based on mere recklessness about the possibility that one's actions are facilitating a crime. One can be held liable on a primary liability theory (and not just as an accomplice) when one's actions help another in his criminal actions even if one is merely reckless or even criminally negligent about the possibility. And various theories accepted in many jurisdictions, such as the felony murder rule, the Pinkerton conspiracy doctrine, or the natural and probable consequences rule of accomplice liability, allow one to be held strictly liable (though subject to the quasi-negligence requirements imposed by the proximate cause doctrine) for a criminal's actions when one has deliberately embarked on a joint effort with that criminal. And that's just criminal liability. When it comes to responsibility in tort, people are often held liable under a simple negligence standard for assisting the tortious acts of another, even when those tortious acts were far from certain or even highly probable, but were merely foreseeable. Of course, I'm saying this only by way of analogy. Abortion, for instance, is neither a crime nor a tort. But in the likely view of the objector in this case, abortion is a very serious moral crime indeed. Is it really so ludicrous for him to conclude that he has a religious obligation not to help people get abortions, and that this obligation requires him not to do even those things that have some low but foreseeable likelihood that they will help an abortion? To be sure, he must be aware that in the process of discharging this obligation, he will also refuse to help many people who (it turns out) aren't seeking abortions. But that's just a consequence of taking a view that one shouldn't be even a negligent accomplice, and not just a purposeful accomplice. 3. Finally, many people try to implement their no-accomplice-to-evil thinking by symbolism. They may refuse to eat meat even though their decision not to eat meat is unlikely to itself save any animal (e.g., at a function where the supplies have already been bought). They may refuse to work on certain inputs to the munitions-making process but not others. I used to often take friends - usually lawyers - to a shooting range. One lawyer friend of mine was willing to go and shoot rifles and shotguns, but refused to shoot a handgun, because a friend of the family had been killed some years before with a handgun. My sense was that she wasn't just saying that the handgun brought back bad memories, but rather that this was her own symbolic way of taking a stand against handgun violence. That obviously isn't my view, and it's not a view that can be easily explained in rationalistic instrumental or deontological terms. But symbolic acts, including symbolic acts that people feel a moral or religious obligation to engage in, are often that way. 4. To return to the driver example, and work in the last item I mentioned, imagine that a taxi driver or a bus-on-call driver refuses to take people to shooting ranges, because he feels that helping people shoot guns makes him complicit in gun violence (gun violence against humans; assume he isn't bothered by hunting). Of course, the overwhelming majority of people who go to a shooting range aren't going to use their guns criminally or immorally. And, unlike in the abortion example, the few who will use their guns criminally almost certainly won't do it on this trip. But he feels a religious obligation to separate himself in this way from sin. One can reject his claim, I think, if accommodating it would pose an undue hardship for the employer. One can argue against it by generally arguing that Title VII's religious accommodation requirement should be repealed. But I don't think one can reject it because one finds the accomplice theory behind the claim to be ridiculous. Eugene
_______________________________________________ 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.
