If the question is how the refusal to issue alcohol licenses not
an Establishment Clause violation, given the religious purpose for the action,
the answer is the same as that given in Bob Jones Univ. and Harris v. McRae:
That government officials – whether legislators or executive officials –
implement a facially secular rule (no alcohol, no funding for abortions, no
race discrimination) because of their religion doesn’t make their actions
Establishment Clause violation.
The Establishment Clause doesn’t relegate Muslims (or Baptists
or others) to being second-class citizens, who are unable to implement their
beliefs into law while more favored secular citizens are able to implement
beliefs on precisely the same questions into law. If secular people are
allowed to ban alcohol because of their philosophical judgment (whether
utilitarian, based on their philosophical views of how to reckon the utility,
or deontological), then religious people are equally allowed to ban alcohol
because of their religious judgment. Of course, if secular people aren’t
allowed to ban alcohol (e.g., because state law provides for a right to alcohol
licenses, without giving clerks the discretion to deny licenses), then
religious people aren’t, either.
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Monday, September 07, 2015 11:02 AM
To: Law Religion & Law List
Subject: Re: What's happening in KY? -- my differences with Eugene
“Might constitute" religious discrimination? How would it not? It would be
obviousl establishment clause violation.
How is the alcohol not an establishment violation given the intention and
purpose and motivation of it?
On Sep 7, 2015, at 1:13 PM, Volokh, Eugene
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote:
1. If the county clerk refuses to issue restaurant licenses to
any restaurant that was not halal, that might constitute discrimination based
on the religious practices followed by a restaurant, and would violate the
Establishment Clause’s “no religious decisions” principle by requiring a
government official to decide what is halal and what is not.
2. If the county clerk simply refuses to issue licenses to any
establishment that serves alcohol, he might be violating state law, assuming
that he has a nondiscretionary duty to issue licenses. But he isn’t violating
the federal constitution, any more than a county clerk who disapproves of
alcohol for secular purposes is violating the federal constitution. What
secular people are free to do based on their philosophical judgment, Muslims
are free to do based on their religious judgment.
Eugene
From:
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Monday, September 07, 2015 10:04 AM
To: Law Religion & Law List
Subject: Re: What's happening in KY? -- my differences with Eugene
How about this hypothetical:
Let's say we elected a very conservative Muslim as a county clerk. Assume the
county clerk is the only one who issues licenses for restaurants and issues
liquor licenses. Assume this clerk refused to issue restaurant licenses to any
restaurant that was not halal or or to any establishment that served alcohol.
Non-halal restaurants are legal as is serving alcohol in the state.
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--
Prof. Steven D. Jamar
Howard University School of Law
vox: 202-806-8017
fax: 202-806-8567
http://sdjlaw.org
"If you want to bake an apple pie from scratch, you must first invent the
universe.”
Carl Sagan
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