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
From: Steven Jamar [mailto:stevenja...@gmail.com] Sent: Wednesday, March 07, 2012 09:45 PM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> Subject: Discrimination against people with religious motivations for their actions I hope it comes as no surprise to anyone on this list that there are irreconcilable doctrinal problems with religious liberty no matter how one looks at it. Religious motivation matters. Particular facts matter. Details matter. Eugene's hypothetical restaurant is not analogous to the cabbies in Minneapolis or in general. I am not at all sure that Lukumi extends to private conduct and general anti-discrimination laws. In that case the state singled out a particular religion by ordinance -- not the application of an anti-discrimination law. There is also a world of difference between actions by private parties that discriminate on the basis of religion and ordinances by states (or cities) that ban particular religious practices. If the past decades of religious jurisprudence have taught us anything it should be to by chary of expanding any decision by the court much beyond its peculiar facts. Witness the recent distinguishing of Smith. Who knew? I do not contend that these cases are easy or that they are or can be decided with great consistency -- indeed, I contend exactly the opposite. Motivation matters and I cannot transmute a religious motivated action against someone into a neutral action without any religious motivation. The response to the accommodation in Minneapolis shows a societal anti-Islam animus. Who is surprised? But the claim of a person who has been denied a ride on a common carrier for no reason other than doing something he has an absolutely legal right to do and is denied the ride because of a religious belief by the driver is sure going to feel like religious discrimination whatever niceties one might want to draw. And in fact IS religiously-motivated action excluding someone. It is. Should it be permitted? Should it be accommodated? Probably, in the absence of showing hardship to riders. But if it s the last cab of the night? No way. I generally think we should accommodate religious exercise rights of employers and service providers and everyone to the extent practicable. But that is a long way from finding a constitutional or statutory right to engage in such conduct when engaged in the provision of such public services. There is no constitutional principle or statutory provision that would or should require that. The situations are too nuanced for hard-edged application of generally applicable rules in this area. Minneapolis Airport Authority approached it sensibly and if the solution had been implemented and if it had worked as planned (I have doubts, but maybe it would have), then that is what should be done. We are not a secular universalist society -- not by a long shot. Nor should we be -- it is not within our traditions and experience and our polyglot amalgam of people -- but nor should it be heavy-handed rights-based regime with what becomes a unit veto. Steve -- Prof. Steven D. Jamar vox: 202-806-8017 Associate Director, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ "Never doubt that the work of a small group of thoughtful, committed citizens can change the world. Indeed, it’s the only thing that ever has." Margaret Meade
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