RE: FW: 75% of Minneapolis airport taxis refuse customerswithalco hol

[Sisk, Gregory C.]

Title: Re: FW: 75% of Minneapolis airport taxis refuse customerswithalcohol

It seems to me that the right question is whether the religious accommodation may be made in a manner that does not cause an unacceptable burden to others.  Whether or not such an accommodation is compelled, in the post-Employment Division v. Smith period, it surely is not prohibited.   Being here in Minneapolis as I am, I can report that this story has received significant play in the press.  And, interestingly, this appears to be a case in which all the parties concerned are behaving with courtesy and respect in an attempt to find the right balance and live together in a community without being forced to surrender faith.  The Muslim cab drivers agree that they would not inquire as to what a person is carrying – the Koran does not impose such a duty of inquiry – so any alcohol included in baggage would not be known to or covered by the their refusal to accept the carriage of alcohol.  The concern is for visible carrying of alcohol (although not just in open containers, as Paul Finkelman correctly assumed).  The Muslim cab drivers further have agreed that they would place a different colored light on their cabs, so that the attendants for the cab waiting line at the airport would simply direct the next passenger in line who is visibly carrying alcohol to the next cab in line that does not have the different light.  In most cases, this would occur so unobtrusively that the passenger wouldn’t even know what has just occurred.  In this way, every passenger still will receive cab service in the order in which he or she appears in the cab waiting line, while the Muslim cab drivers may face a temporary wait for the next passenger without alcohol, a minor burden placed on and accepted by the Muslim community in exchange for accommodation of their deeply-held beliefs.  Please keep in mind as well that this is Minneapolis-St. Paul – not New York or Washington, D.C. – so that most passengers arriving at the airport are not taking cabs and thus accommodation for the relatively few passengers who do take cabs is made all the easier.   Eugene’s point of comparison with unemployment beneficaries is quite apt, in light of recent events in Germany.  As he says, drawing the comparison with the Muslim cab drivers, “One could equally well say that unemployment beneficiaries must take any job for which they're qualified, end of story, having been granted unemployment compensation on those terms.”  A case recently arose in Germany in which a young woman, a person of faith as I recall, who received unemployment compensation was told that her benefits would be terminated because she had refused to accept a job as a prostitute that had been posted at the unemployment office, prostitution being a legal form of business in Germany.  While that ruling was overturned once public attention was drawn to it, it certainly confirms the serious danger to personal faith and values that may be posed by requiring a person to fall into line simply by receipt of a public benefit.   Greg Sisk   Gregory Sisk Professor of Law University of St. Thomas School of Law (Minnesota) MSL 400, 1000 LaSalle Avenue Minneapolis, MN  55403-2005 651-962-4923 [EMAIL PROTECTED] http://personal2.stthomas.edu/GCSISK/sisk.html From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Friday, September 29, 2006 4:37 PM To: Law & Religion issues for Law Academics Subject: RE: FW: 75% of Minneapolis airport taxis refuse customerswithalcohol       Sandy:  I still wonder why this isn't just assuming the conclusion.  One could equally well say that unemployment beneficiaries must take any job for which they're qualified, end of story, having been granted unemployment compensation on those terms.  Or one could say that a restaurant given a valuable liquor license must open seven days a week, end of story, notwithstanding the fact that its owner feels a religious obligation to close Saturdays or Sundays.       The question here is whether it's proper for those who define the rules to come up with an exception that accommodates the licensee's religious beliefs, while at the same time avoiding inconvenience to the public.  It's hard to come up with such an accommodation for the postal worker, but not that hard, I think, for the cab drivers (the color-coding being a pretty good idea).  If the airport is willing to accommodate the drivers, why not let it do that?       There is also, of course, the question whether such an accommodation should be constitutionally required.  I think it shouldn't be, because I generally agree with Smith.  But if one accepts Sherbert/Yoder -- including as to Sherbert herself, who is being granted a valuable public benefit -- then why wouldn't the cab drivers have a very strong case?  (As I mentioned, the Minnesota Supreme Court has accepted the Sherbert/Yoder approach to the Minnesota Constitution's religious freedom provision.)  Perhaps the rule should be something less than strict scrutiny when it comes to conditions of government benefits (cf. http://www.law.ucla.edu/volokh/intermed.htm#GovernmentasEmployer for a discussion of this issue as to the government as employer), though I take it that this would mean less than strict scrutiny in Sherbert, too.  But why should it be no scrutiny, "government wins, end of story"?       Eugene   From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Sanford Levinson Sent: Friday, September 29, 2006 2:29 PM To: religionlaw@lists.ucla.edu Subject: Re: FW: 75% of Minneapolis airport taxis refuse customerswithalcohol I confess I'm with Paul on this one.  As someone who has often taught professional responsibility, I've defended the "cab rank" rule.  To put it mildly, it is disconcerting to be told that the "cab rank rule" doesn't apply to cabs!  They are common carriers, end of story, having been granted a valuable public license.  If they want to exercise that kind of discretion, let them open a livery company.  We've earlier discussed, on more than one occasion, whether a postal worker MUST deliver personally offensive magazines.  The answer is yes, and I don't recall that Eugene disagreed. Sandy - Sanford Levinson (Sent from a Blackberry)

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