Again, the employement compesation is different; this is about a duty of
common carriers to accept all people. Moreover, it opens too many other
exceptions -- pagan symbols, race mixing (Bob Jones Cab Co. won't pick
up mixed race couples); I think we all think of many examples of how
very religious people can find a religious reason for not picking up
someone; can a muslim tow truck driver refuse to tow the broken Miller
Beer Truck? Can the Muslim bus driver close the door on the overtly
pagan kids trying to get on the bus; can Muslim Cabbies (or Evangelical
Christians) refuse to carry Wickens? Where, I would ask, would Greg or
Eugene draw the line -- on common carries and places of public
accommodations? The Muslim grocer can close on Friday and refuse to
carry beer; but he cannot refuse to sell to someone who bought beer next
store and is legally carrying a six pack (closed of course) as he tried
to by chips and salsa in the Muslim store. By the way, if they meet
other criteria, would favor unemployment compensation for Muslin cabbies
who quit because they cannot obey the law which requires them to take
all passengers.
Paul FInkelman
Paul Finkelman
President William McKinley Distinguished Professor of Law
and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York 12208-3494
518-445-3386
[EMAIL PROTECTED]
>>> [EMAIL PROTECTED] 09/29/06 6:45 PM >>>
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
<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
<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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