Because of the Sabbath and Yom Kippur, I am just catching up with the threads of the past few days. I wanted to add a note to the discussion about the Muslim taxi drivers. There was a lot flying and I can't find the original posting describing exactly the system of color coded cabs, so forgive me if this precise point has been made. I am responding to the Greg Sisk thread that speaks most closely to my own views but wanted to lay out a more specific approach that I think captures his conceptual approach. Most of the other postings I read argue that, in this situation pitting the rights of Muslim employees against those passengers who carry alcohol, the law should favor one or the other in most or all situations. But a number of us have been arguing that in situations involving valid competing interests (e.g. the pharmacist or nurse with objections to certain prescriptions or provision of services) efforts should be made to better accommodate the interests on both sides. This is a variant of what Greg (and I think Eugene) was arguing for.
In the case of the taxi drivers, if there is another taxi available at the time service needs to be provided, the religious objections should always be accommodated. But since provision of transportation is the essential function of the position the employer has been licensed to provide to the public, if there is no accessible alternative available, the taxi driver needs to provide the services. The notion, for example, that in a small town with half a dozen drivers, that in a snow storm, your elderly aunt could be left stranded (by a government licensed transportation provider) indefinitely or altogether after shopping, because she is carrying alcohol home, where the only drivers are of the color code for "won't carry" is deeply problematic. So, on the one hand, if someone won't perform the essential function of the job in those circumstances where they are the only accessible provider, they ought not to work in that profession or work in a locality where there are alternatives available. On the other, when someone is available to replace them, they always ought to be accommodated. In the same way, I would argue that pharmacists or nurses should always be accommodated when (in a pharmacy or hospital providing particular services) there are others to provide needed services but need to accept their responsibility to provide such services to which they object when no one else is available to provide them. (Hope the analogy doesn't stir another hornet's nest of debate :-)). This schema, of course, requires the kind of case by case analysis to which Greg referred in his posting (how long can reasonably someone be made to wait while a substitute is found and dispatched? Is referring them to another accessible provider who has fewer objectors a legitimate resolution?) But nonetheless this approach has the advantage of taking reasonable steps to accommodate the competing rights of both parties as fully as possible. At the risk of stepping over the boundaries our moderator set between legal and religious issues, I hope you will, in the words of the Jewish blessing, accept my best wishes for a Jewish new year of sweetness, peace and health for you and your loved ones. David -----Original Message----- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Sisk, Gregory C. Sent: Saturday, September 30, 2006 5:11 PM To: 'Law & Religion issues for Law Academics' Subject: RE: FW: 75% of Minneapolis airport taxis refusecustomerswithalco hol To piggy-back on Eugene's point, such accommodation is not only wise public policy (in my view), but is wise employer behavior, not only to maintain higher morale but also to ensure higher quality of work. As an example, when I was an appellate lawyer at the Department of Justice, it was openly offered to us that should we have a strong moral or religious objection to working on a particular case, we should express it, would be released from the case, and this would have no detrimental effect on our review. I took advantage of that offer on only one occasion, when the government (as I recall the matter from many years later) was objecting to a religious seminary's refusal on religious grounds to accept a returning student who had interrupted his religious training for military service. In my view, this offended the seminary's religious liberty and I was morally unwilling to cooperate with the government in that intrusion. As former Judge Patricia Wald of the United States Court of Appeals for the District of Columbia Circuit commented on this very policy: "With changes in administrations, many government counsel understand that, at least in DOJ, lawyers are not required, at the peril of ending their careers, to represent government policy that collides with their most fundamental beliefs. (The "don't ask, don't tell" policy on gays in the military is one example, I am told, where lawyers sincerely opposed to the policy are excused from defending it.) This kind of leeway is wise policy for an agency; given that the government is a vast enterprise required to take on a multitude of subjects, the possibilities of both conflict and substitution are greater. It is also wise for government counsel to take their employer up on the offer: Their discomfort is often discernible to the court, and no government counsel should be asked to ignore deeply felt convictions (so long as he does not have too many)." Patricia M. Wald, "For the United States": Government Lawyers in Court, 61 Law & Contemp. Probs. 107, 121 (Winter 1998). I'd submit that it is wise policy as well for most employers considering religious accommodation requests, even if the First Amendment or Title VII doesn't require it. Greg 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 -----Original Message----- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Saturday, September 30, 2006 3:28 PM To: Law & Religion issues for Law Academics Subject: RE: FW: 75% of Minneapolis airport taxis refusecustomerswithalco hol Well, we started with "people hired to do a job, should do it." Now we're at "people hired to do a job, should do it on the days that they are willing to do it, even though they can get an exemption from the schedule the job usually required." Why not have an alternative vision -- "people hired to do a job, should do it, but if they have serious moral or religious objections to some aspect of the job, we should try to accommodate them when such an accommodation wouldn't be that hard"? That, I take it, is the way many jobs are run. If you're doing research on pornography that requires accessing sexually themed material, and the secretary or librarian you ask to help you says "I wonder whether I might hand this off to my colleague who doesn't have my religious objections to it," I take it you'd say "Sure," at least if the hand-off will be relatively simple. If some small part of a biological research task involves vivisection of small animals, and one of the researchers offers to trade off this task with a colleague, I'd think the supervisor would be and should be happy to oblige. Why should the words "common carrier" magically dissolve this laudable willingness to accommodate? Eugene > -----Original Message----- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of Paul > Finkelman > Sent: Saturday, September 30, 2006 1:19 PM > To: religionlaw@lists.ucla.edu > Subject: RE: FW: 75% of Minneapolis airport taxis > refusecustomerswithalco hol > > not about days off, but about doing the job on the days you work; one > is an accommodation to religious needs but it gets the job done and > leaves NO discretion to the employee to decide who to serve and who > not to serve; this system means some people won't get picked up and > won't know why and sets the stage for discrimination. the day off > does not exempt workers from doing the job when they are at work; the > Minn. > program does. > > 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] 09/30/06 4:09 PM >>> > Greg's analysis seems entirely right to me. To add just one item, > would we respond to religious requests for days off with "You were > hired to do a job Tuesday to Saturday, do it?" Say that taxicabs were > expected to be on duty Monday through Friday until 10 pm, and someone > asked for an exemption for Friday evenings. Should we just reject > such a request, on the theory that there may be other such requests > that would be too burdensome? Or should we see if we can accommodate > the person (for instance, because there are enough other cab drivers > who are willing to work Friday evenings)? The question here, recall, > isn't even whether the airport authority has a state constitutional > obligation to accommodate the religious objection -- only whether it's > proper for it to do so if it wants to. > > Eugene > > > -----Original Message----- > > From: Sisk, Gregory C. [mailto:[EMAIL PROTECTED] > > Sent: Saturday, September 30, 2006 11:20 AM > > To: 'Paul Finkelman'; Volokh, Eugene; 'religionlaw@lists.ucla.edu' > > Subject: RE: FW: 75% of Minneapolis airport taxis refuse > > customerswithalco hol > > > > It's only hard to imagine that telling a Muslim cab driver to > > knowingly assist someone in transporting alcohol could be a > burden on > > faith if you're unwilling to put yourself, even for a > moment, in that > > person's shoes and consider the matter from the point of > view of the > > believer involved, rather than insisting upon evaluating by > one's own > > worldview. The sincerity of the Muslim cab drivers is > denied by no one > > who is familiar with the situation here in the Twin Cities. They > > sincerely believe that they are directly assisting evil if they > > knowingly participate in the transportation of an illicit > substance. > > That's not my worldview either, but I have no difficulty > understanding > > it and see no reason not to respect and accommodate to it. > > > > Paul's absolutist standard of "if you're hired to do a job, just do > > it" is so rigid that it would lead to innumerable instances of > > injustice and disrespect for diversity in our society, as well as > > create situations in which certain elements of the economy > and public > > life would be closed to people of certain faiths, not for > reasons of > > necessity but merely of efficiency and convenience. By effectively > > saying that cab driving is off limits to Muslims or being a > physician > > is off limits to Catholics (by reason of rules requiring > training or > > assistance in abortion) is to make people of certain faiths > > second-class citizens and alienated from society. That is not a > > healthy road down which to travel. Nor should we forget that the > > majority makes the rules, and often are less than willing > to consider > > the effect imposed on the minority. > > > > Of course, we cannot allow police officers or fire fighters > to decide > > whether to respond to a particular location on religious grounds. > > Likewise, we cannot allow military servicemembers to refuse > commands > > to participate in military action because of religious > pacifism. But > > most situations don't require such strict rules or refusal to > > accommodate. A person should be able to practice medicine, without > > being required to participate in abortions or assisted suicide. A > > religiously-affiliated hospital should be able to provide medical > > services and employ hundreds, without being required to make its > > facilities available for abortions. A lawyer should be able to > > practice law, without being forcibly appointed by a court > to represent > > someone seeking an abortion or the right to kill themselves. The > > owner of a commercial building should be able to participate in the > > commercial leasing market, without being required to accept > the lease > > of the adult bookstore or the strip club. A bank loan > officer should > > be able to hold a job, without being assigned to the account of the > > local pornography industry (assuming another employee could be so > > assigned). A Jewish person should be able to obtain most jobs, > > without being required to work on the Sabbath (when such > accommodation > > is reasonable). A traditional Muslim woman should be permitted to > > hold a job, without being required to remove her veil, at least for > > other than safety reasons. By making such accommodations, > we ensure > > that our society remains open to people from all faiths and > we avoid > > the incalculable harm of damaging a person of faith for no reason > > other than custom, bureaucracy, the arrogance of a > majority, or mere > > convenience. > > > > As for Paul's other hypotheticals, once again, each requires a > > case-by-case analysis as reasonableness, rather than strict > and broad > > rules just for the sake of efficiency and uniformity. And > in fact we > > do in many sectors of society allow people to make > judgments based on > > modesty of clothing. > > "No shirt, no shoes, no service." Does that impinge on people's > > preferences for lighter clothing, particular along a beach > or during > > the summer? Yes. > > Should we deny the store that prerogative? Can we allow the same > > accommodation for cab drivers, perhaps not. I am > comfortable living > > with a vibrant and healthy and diverse society in which > things are not > > the same everywhere and in every circumstance. That's the human > > condition. > > > > Greg > > > > 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 > > > > > > -----Original Message----- > > From: Paul Finkelman [mailto:[EMAIL PROTECTED] > > Sent: Saturday, September 30, 2006 12:52 PM > > To: [EMAIL PROTECTED]; religionlaw@lists.ucla.edu; > > [EMAIL PROTECTED] > > Subject: RE: FW: 75% of Minneapolis airport taxis refuse > > customerswithalco hol > > > > Hard to imagine how telling a cab driver to pick up a > passenger shaves > > down the person's faith. > > Let's try it another way: suppose devoutly Muslim (or > > Jewish) men drave susbtantial numbers of cabs and refuse to pick up > > fares of women who are not "modestly dressed." No shorts or short > > skirts? Are you prepared to say that their first amendment > rights to > > dress as they wish should be trumped by the religious beliefs of > > someone who holds a licence that says he must pick up all > passsengers? > > > > I do not know when Greg last flew, but my sense is that flight > > attendants are pretty busy and can't divide up jobs according to > > religous preference. Hard to imagine how you would run that > business. > > > > I am not suggesting that we "exclude" anyone from the > society on the > > basis of religion; just that people hired to do a job, should do it > > > > 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] 09/30 1:42 PM >>> > > Human beings are not generic round pegs that are carefully > shaved down > > to a uniform size on a lathe so as to fit perfectly into > every round > > hole. > > When > > society, through the force of law, demands that everyone be > the same > > and behave the same, demanding that people surrender their > deeply-held > > religious beliefs so as to be an efficient cog in the societal > > machine, then we have lost our liberty. > > Instead, being part of a diverse community means making reasonable > > accommodations for religious views, thus making it possible, within > > reasonable parameters, for people from every faith to fully > > participate in our public and economic life. > > > > The question is finding that right balance between reasonable > > accommodation for persons with deeply held religious > beliefs and the > > need for effective performance of the job at hand. > > If it is impossible to make an accommodation and the > requirement is an > > important part of the task at hand, then accommodation would not be > > required. Thus, for example, if every flight attendant > were Muslim, > > allowing all flight attendants to refuse to serve alcohol to > > passengers might be an unreasonable accommodation (although we > > certainly could as a society then discuss whether > accommodation was a > > sufficiently important and respectful measure as to justify > removing > > service of alcohol from airplane transportation, as being able to > > imbibe alcohol while sitting on a plane is hardly a civil right > > (although it is a privilege that I admit to enjoying).) > But if a one > > flight attendant out of four on a plane was a Muslim and > were to ask > > to be the person who hands out pillows or food or soft > drinks, rather > > than be the one who fills drink orders, that would be a simple > > accommodation that inconveniences no one and respects the > dignity and > > individuality of the person involved. That these questions > require a > > case-by-case analysis -- rather than imposition of > absolutist rules -- > > simply reflects that we are human beings and not cattle. > > > > In any event, I think the Minneapolis-St. Paul airport and > the Muslim > > cab drivers should be commended for seeking to find a > balance in a way > > that addresses all concerns and shows respect for all > persons. That > > we can imagine another set of circumstances in which reasonable > > accommodation would not be possible is no argument to refuse to > > accommodate in circumstances where it can be accomplished > with little > > inconvenience. We ought to be grateful that we still live in a > > society where, at least in some regions and in some circumstances, > > reasonable people of good faith are wiling to look for a > solution that > > doesn't involve excluding people's whose views are not our own or > > imposing a rigid and exclusive bureaucratic rule by the > majority upon > > a minority group. > > > > 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 > > > > -----Original Message----- > > From: Paul Finkelman [mailto:[EMAIL PROTECTED] > > Sent: Friday, September 29, 2006 10:50 PM > > To: [EMAIL PROTECTED]; religionlaw@lists.ucla.edu > > Subject: RE: FW: 75% of Minneapolis airport taxis refuse > > customerswithalcohol > > > > we should not force someone to take a job if they must > break religious > > beliefs, that is too coercive; but surely we cannot run a > society if > > people who have an obligation to do a job (pick up fares) > refuse to do > > that job. COnsider this. What if all 75% of the Muslim cabbies took > > this position, and then, over time, 95% of the cabbies were Muslims > > who would not pick up certain fares? And if 25% of all flight > > attendants are Muslim and refuse to serve drinks on planes, do we > > "color code" our planes; or our amtrack trains? Can the > conductor on > > the train refuse to sell a ticket to the passenger who is legally > > drinking on the train? > > > > 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 5:37 PM >>> > > 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#GovernmentasEmploy > > er 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) > > > > > > _______________________________________________ > > 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. > > _______________________________________________ > 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. _______________________________________________ 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.
