FW: Discrimination against people with religious motivations for their actions
Eugene, My email keeps bouncing; From: Paul Diamond [mailto:pauldiam...@btconnect.com] Sent: 09 March 2012 15:08 To: 'Law Religion issues for Law Academics' Subject: RE: Discrimination against people with religious motivations for their actions With great hesitation, I enter this debate as a practitioner from the UK. 1.Whilst Eugene is correct that a religious adherent cannot have less protection that a person motivated by secular values, I would have thought that 'motive' should be relevant. Why shouldn't the religiously motivated restaurant owner have greater protection under the First Amendment. 2. Under discrimination laws, 'motive' appears irrelevant (as the focus is on the effect), but I think this is wrong. To describe a Muslim taxi driver as committing the 'sin' of discrimination appears dis-respectful to religious as protected by the First Amendment. A court finding of discrimination based on religious belief is very damaging. 3. I would also have thought that the Muslim cabbies would have received First Amendment/ State law protection for 'reasonable accommodation' for their refusal to transport alcohol carriers, because if i) ' motive' is irrelevant, ii) unless the public accommodation law protect those who are discriminated on grounds of 'carrying open alcohol' (like a category such as sexual orientation)- why can't the cabbies lawfully discriminate? Paul Paul Diamond, barrister PO Box 1041 Barton Cambridge CB23 7WY United Kingdom +44 (0) 7979 837714 www.pauldiamond.com ___ 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.
RE: Discrimination against people with religious motivations for their actions
Steve writes that religious motivation matters, for purposes of making an action taken with religious motivation illegal when the same action taken with secular motivation is legal. I see no basis for that in antidiscrimination law, which generally bans discrimination against an individual because of such individual's ... religion, not because of the defendant's religion (and discrimination based on a person's transporting alcohol is not based on that person's consistency). And I see a basis in forbidding any such statutory discrimination against the religiously motivated, in Smith and LukumiI. [T]he 'exercise of religion' often involves not only belief and profession but the performance of (or abstention from) physical acts: assembling with others for a worship service, participating in sacramental use of bread and wine, proselytizing, abstaining from certain foods or certain modes of transportation. It would be true, we think ..., that a State would be 'prohibiting the free exercise [of religion]' if it sought to ban such acts or abstentions only when they are engaged in for religious reasons, or only because of the religious belief that they display. At a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons. But Steve and I have gone over this territory before, so I'm not sure it's productive for us just to speak to each other. I'm curious, though: Do others share Steve's view on this? (It sounded like Marci might, but then it sounded like she didn't, so I'm not sure.) What am I missing? Is there really a basis for allowing this sort of discrimination against religious believers? Eugene Steve Jamar writes: 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:
RE: Discrimination against people with religious motivations for their actions
I would think that narrow tailoring requires a good deal more justification than that. Can it really be that a ban on discrimination against passengers who carry alcohol – discrimination that, outside the context of taxicabs and a few similar common carriers, would be legal in nearly all contexts (employment, public accommodation, contracting, etc.) in nearly all jurisdictions – passes strict scrutiny simply because carving out an exemption might lead to some hypothetical slippery slope to allowing race discrimination? If the interest in banning race discrimination is so compelling in various contexts, then that should justify applying race discrimination law uniformly in those contexts. But I don’t see how that interest would justify applying laws banning other forms of discrimination, such as discrimination based on carrying alcohol. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marc Stern Sent: Wednesday, March 07, 2012 7:01 PM To: 'religionlaw@lists.ucla.edu' Subject: Re: Discrimination against people with religious motivations for their actions 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 ___ 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.
Re: Discrimination against people with religious motivations for their actions
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 ___ 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.
Re: Discrimination against people with religious motivations for their actions
I have to say that I find Steve's analysis more sound and based on common sense. Marci On Mar 7, 2012, at 3:07 PM, Volokh, Eugene vol...@law.ucla.edu wrote: I think the analysis below is mistaken: Whether or not cabbies’ refusal to carry alcohol should be barred by some general common-carriage requirement, it shouldn’t be treated as religious discrimination. What’s more, I think the argument that such a refusal is religious discrimination itself calls for discrimination against those with religious motivations for their actions. 1. To begin with, as others have pointed out, the cabbies’ actions affected Christians, Jews, Muslims, the irreligious, and anyone else who carried alcohol. Moreover, they didn’t affect Christian, Jews, Muslims, the irreligious, and anyone else who didn’t carry alcohol. 2. Now I take it that the response is that the really devout Muslims of the same religious views as the cabbies generally wouldn’t be affected (just as, I suppose, Mormons or Methodists wouldn’t be affected), because they generally wouldn’t carry alcohol. But that analysis strikes me as unsound, and here’s why. Imagine a case closely modeled on Rasmussen v. Glass (Minn. Ct. App. 1993) (review granted but appeal later dismissed), http://scholar.google.com/scholar_case?case=648897692635049631. A restaurant owner refuses to deliver food to a doctor who performs abortions, because the owner believes abortions are evil, and doesn’t want to provide any help, even indirect, to such evil. And say the restaurant owner’s is irreligious, and his opposition to abortion is based on his own personal moral views (e.g., he follows Nat Hentoff, http://groups.csail.mit.edu/mac/users/rauch/nvp/consistent/indivisible.html). I take it that we would all agree that the restaurant owner is not discriminating based on religion. To be sure, devout Catholics, and devout members of other anti-abortion religious groups, wouldn’t perform abortions. But that doesn’t mean the restaurant owner is discriminating based on the would-be customers’ religions – he’s discriminating based on their secular actions. Now say that another restaurant owner acts precisely the same way, but his opposition to abortion is based on his religious views. As I understand the argument below, he would be seen as discriminating based on religion, because the performing of abortion is “a badge of a religion different from yours.” And thus he would be presumptively required to deliver to the doctor’s office, if state public accommodations law covers discrimination based on religion in restaurant delivery. But this would mean that the law itself has become religiously discriminatory: The secular anti-abortion restaurant owner is free to do something (here, refusing to deliver to an abortion provider), but the religious anti-abortion restaurant owner is barred from doing precisely the same thing. 3. I think the same applies to the alcohol example. A secular cab driver who opposes alcohol on secular grounds would presumably not be treated as discriminating based on religion. But to treat the religious cab driver who opposes alcohol on religious grounds would be treated as discriminating based on religion, and would thus be potentially violating relevant public accommodations bans. Yet such an approach would itself impermissibly discriminate (in violation of Lukumi Babalu) against the religious cab driver based on the religiosity of his motivation for his conduct. Or am I missing something here? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Wednesday, March 07, 2012 7:10 AM To: Law Religion issues for Law Academics Subject: Re: Cabbies vs. lawyers Of course it is a proxy -- just like a collar or burka or yarmulke -- a badge of a religion different from yours -- only in this case it is alcohol possession -- a badge of a religion different from yours. The dodge of oh, I'm not against their religion, just against their conduct can't be allowed can it? The person transporting the alcohol is the passenger, not the cab driver. The fact of hidden vs. open possession of the bottle of wine gives it away, doesn't it -- it is not about the action, it is about the religious nature of the action -- the violation of the religious beliefs of the driver by the religious beliefs (ok to have and transport alcohol) by the passenger. It is action based on a difference of religious belief. That is discrimination no matter how one twists it. Maybe we should allow this discrimination, just like maybe we should allow discrimination in allowing landlords to discriminate against gays based on the landlord's religious beliefs, but that is still religious-based discrimination. You can't suddenly say that motivation doesn't matter just
Re: Discrimination against people with religious motivations for their actions
Yes, Eugene, I think you are missing the essential point that common carriers are not the same as other employers and when it comes to choice as to serve or not serve, they are more limited in what they can and cannot do. They are bound by more than non-discrimination laws. Or that is how I always understood the law in this field, but I could be mistaken - I've not worked in it for over 2 decades now. So the baseline is different. It is not the same as for ordinary businesses. I get the distinction you are trying so to make. And I agree that it is not the same as excluding someone because of a particular affiliation with a sect. But it still is discrimination based on religion whether it is based on the customer not conforming to the religious expectations and demands of the business or the business excluding because of a status of the customer -- in both instances it is because of the religious beliefs and conduct of the business, not the customer. I am troubled by the blame-the-customer attitude evinced in the solicitude for the person engaged in provision of a public service such as common carriers and public transportation. As I have written some time ago now, I think we should indeed recognize the religious needs or constraints or beliefs of the employer -- but one should also recognize and support the interests of the others. If a system can be worked out with minimal harm to all involved, that is best. But I would favor the weaker party to the stronger -- in this situation the one needing the cab is decidedly in the weaker position. Steve On Mar 7, 2012, at 3:07 PM, Volokh, Eugene wrote: I think the analysis below is mistaken: Whether or not cabbies’ refusal to carry alcohol should be barred by some general common-carriage requirement, it shouldn’t be treated as religious discrimination. What’s more, I think the argument that such a refusal is religious discrimination itself calls for discrimination against those with religious motivations for their actions. 1. To begin with, as others have pointed out, the cabbies’ actions affected Christians, Jews, Muslims, the irreligious, and anyone else who carried alcohol. Moreover, they didn’t affect Christian, Jews, Muslims, the irreligious, and anyone else who didn’t carry alcohol. 2. Now I take it that the response is that the really devout Muslims of the same religious views as the cabbies generally wouldn’t be affected (just as, I suppose, Mormons or Methodists wouldn’t be affected), because they generally wouldn’t carry alcohol. But that analysis strikes me as unsound, and here’s why. Imagine a case closely modeled on Rasmussen v. Glass (Minn. Ct. App. 1993) (review granted but appeal later dismissed), http://scholar.google.com/scholar_case?case=648897692635049631. A restaurant owner refuses to deliver food to a doctor who performs abortions, because the owner believes abortions are evil, and doesn’t want to provide any help, even indirect, to such evil. And say the restaurant owner’s is irreligious, and his opposition to abortion is based on his own personal moral views (e.g., he follows Nat Hentoff,http://groups.csail.mit.edu/mac/users/rauch/nvp/consistent/indivisible.html). I take it that we would all agree that the restaurant owner is not discriminating based on religion. To be sure, devout Catholics, and devout members of other anti-abortion religious groups, wouldn’t perform abortions. But that doesn’t mean the restaurant owner is discriminating based on the would-be customers’ religions – he’s discriminating based on their secular actions. Now say that another restaurant owner acts precisely the same way, but his opposition to abortion is based on his religious views. As I understand the argument below, he would be seen as discriminating based on religion, because the performing of abortion is “a badge of a religion different from yours.” And thus he would be presumptively required to deliver to the doctor’s office, if state public accommodations law covers discrimination based on religion in restaurant delivery. But this would mean that the law itself has become religiously discriminatory: The secular anti-abortion restaurant owner is free to do something (here, refusing to deliver to an abortion provider), but the religious anti-abortion restaurant owner is barred from doing precisely the same thing. 3. I think the same applies to the alcohol example. A secular cab driver who opposes alcohol on secular grounds would presumably not be treated as discriminating based on religion. But to treat the religious cab driver who opposes alcohol on religious grounds would be treated as discriminating based on religion, and would thus be potentially violating relevant public accommodations bans. Yet such an approach would itself impermissibly discriminate (in violation of Lukumi Babalu) against the
RE: Discrimination against people with religious motivations for their actions
I agree with the statement in the first paragraph that, if a cab driver is treated as a common carrier, then he might have to transport people who are carrying alcohol (unless he is entitled to a religious exemption under a Sherbert/Yoder-model state constitutional regime, or a state RFRA regime). And this is so regardless of whether he's discriminating based on a characteristic such as religion. But the second paragraph goes on and says that a business owner who discriminates against a customer who is doing something that the owner thinks is religiously improper is engaging in discrimination based on religion. The logic of that paragraph goes far beyond the common carrier situation (and indeed in the common carrier situation is irrelevant whether the common carrier is discriminating based on religion). If the claim is that this discrimination based on the actor's religious beliefs is the sort of religious discrimination prohibited by public accommodation discrimination laws, that strikes me as mistaken. As I mentioned in my earlier post, a secular restaurant owner who refuses to deliver to an abortion provider because of the owner's secular opposition to abortion should be precisely on the same footing as a religious restaurant owner who refuses to deliver to an abortion provider because of the owner's religious opposition to abortion - neither is guilty of actionable religious discrimination. Likewise, a secular cab driver who refuses to transport people carrying alcohol because of the driver's secular opposition to alcohol should be precisely on the same footing as a religious cab driver who refuses to transport people carrying alcohol because of the driver's religious opposition to alcohol. Again, neither is guilty of actionable religious discrimination. Perhaps both are guilty of violating some common carrier obligation; but that's another story. In either case, the suggestion that there's something illegally religiously discriminatory about a business owner's acting based on his own religious beliefs and conduct strikes me as mistaken - indeed, unconstitutional given Lukumi Babalu. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Wednesday, March 07, 2012 3:40 PM To: Law Religion issues for Law Academics Subject: Re: Discrimination against people with religious motivations for their actions Yes, Eugene, I think you are missing the essential point that common carriers are not the same as other employers and when it comes to choice as to serve or not serve, they are more limited in what they can and cannot do. They are bound by more than non-discrimination laws. Or that is how I always understood the law in this field, but I could be mistaken - I've not worked in it for over 2 decades now. So the baseline is different. It is not the same as for ordinary businesses. I get the distinction you are trying so to make. And I agree that it is not the same as excluding someone because of a particular affiliation with a sect. But it still is discrimination based on religion whether it is based on the customer not conforming to the religious expectations and demands of the business or the business excluding because of a status of the customer -- in both instances it is because of the religious beliefs and conduct of the business, not the customer. I am troubled by the blame-the-customer attitude evinced in the solicitude for the person engaged in provision of a public service such as common carriers and public transportation. As I have written some time ago now, I think we should indeed recognize the religious needs or constraints or beliefs of the employer -- but one should also recognize and support the interests of the others. If a system can be worked out with minimal harm to all involved, that is best. But I would favor the weaker party to the stronger -- in this situation the one needing the cab is decidedly in the weaker position. Steve On Mar 7, 2012, at 3:07 PM, Volokh, Eugene wrote: I think the analysis below is mistaken: Whether or not cabbies' refusal to carry alcohol should be barred by some general common-carriage requirement, it shouldn't be treated as religious discrimination. What's more, I think the argument that such a refusal is religious discrimination itself calls for discrimination against those with religious motivations for their actions. 1. To begin with, as others have pointed out, the cabbies' actions affected Christians, Jews, Muslims, the irreligious, and anyone else who carried alcohol. Moreover, they didn't affect Christian, Jews, Muslims, the irreligious, and anyone else who didn't carry alcohol. 2. Now I take it that the response is that the really devout Muslims of the same religious views as the cabbies generally wouldn't be affected
Discrimination against people with religious motivations for their actions
I think the analysis below is mistaken: Whether or not cabbies' refusal to carry alcohol should be barred by some general common-carriage requirement, it shouldn't be treated as religious discrimination. What's more, I think the argument that such a refusal is religious discrimination itself calls for discrimination against those with religious motivations for their actions. 1. To begin with, as others have pointed out, the cabbies' actions affected Christians, Jews, Muslims, the irreligious, and anyone else who carried alcohol. Moreover, they didn't affect Christian, Jews, Muslims, the irreligious, and anyone else who didn't carry alcohol. 2. Now I take it that the response is that the really devout Muslims of the same religious views as the cabbies generally wouldn't be affected (just as, I suppose, Mormons or Methodists wouldn't be affected), because they generally wouldn't carry alcohol. But that analysis strikes me as unsound, and here's why. Imagine a case closely modeled on Rasmussen v. Glass (Minn. Ct. App. 1993) (review granted but appeal later dismissed), http://scholar.google.com/scholar_case?case=648897692635049631. A restaurant owner refuses to deliver food to a doctor who performs abortions, because the owner believes abortions are evil, and doesn't want to provide any help, even indirect, to such evil. And say the restaurant owner's is irreligious, and his opposition to abortion is based on his own personal moral views (e.g., he follows Nat Hentoff, http://groups.csail.mit.edu/mac/users/rauch/nvp/consistent/indivisible.html). I take it that we would all agree that the restaurant owner is not discriminating based on religion. To be sure, devout Catholics, and devout members of other anti-abortion religious groups, wouldn't perform abortions. But that doesn't mean the restaurant owner is discriminating based on the would-be customers' religions - he's discriminating based on their secular actions. Now say that another restaurant owner acts precisely the same way, but his opposition to abortion is based on his religious views. As I understand the argument below, he would be seen as discriminating based on religion, because the performing of abortion is a badge of a religion different from yours. And thus he would be presumptively required to deliver to the doctor's office, if state public accommodations law covers discrimination based on religion in restaurant delivery. But this would mean that the law itself has become religiously discriminatory: The secular anti-abortion restaurant owner is free to do something (here, refusing to deliver to an abortion provider), but the religious anti-abortion restaurant owner is barred from doing precisely the same thing. 3. I think the same applies to the alcohol example. A secular cab driver who opposes alcohol on secular grounds would presumably not be treated as discriminating based on religion. But to treat the religious cab driver who opposes alcohol on religious grounds would be treated as discriminating based on religion, and would thus be potentially violating relevant public accommodations bans. Yet such an approach would itself impermissibly discriminate (in violation of Lukumi Babalu) against the religious cab driver based on the religiosity of his motivation for his conduct. Or am I missing something here? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Wednesday, March 07, 2012 7:10 AM To: Law Religion issues for Law Academics Subject: Re: Cabbies vs. lawyers Of course it is a proxy -- just like a collar or burka or yarmulke -- a badge of a religion different from yours -- only in this case it is alcohol possession -- a badge of a religion different from yours. The dodge of oh, I'm not against their religion, just against their conduct can't be allowed can it? The person transporting the alcohol is the passenger, not the cab driver. The fact of hidden vs. open possession of the bottle of wine gives it away, doesn't it -- it is not about the action, it is about the religious nature of the action -- the violation of the religious beliefs of the driver by the religious beliefs (ok to have and transport alcohol) by the passenger. It is action based on a difference of religious belief. That is discrimination no matter how one twists it. Maybe we should allow this discrimination, just like maybe we should allow discrimination in allowing landlords to discriminate against gays based on the landlord's religious beliefs, but that is still religious-based discrimination. You can't suddenly say that motivation doesn't matter just because the motivation is their own religious beliefs. Steve ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see
Re: Discrimination against people with religious motivations for their actions
Eugene--I'm going to focus on the third, relevant issue. The restaurant examples are not analogous because one can do the act and the other cannot do it. In the cabbie situation neither can The cabbie who refuses to carry alcohol for secular reasons loses his job because he is refusing to do his job. The cabbie who refuses for religious reasons is subject to the same rule. The only question is whether there should be an exemption. Under Smith and Hershberger even, I think the religious cabbie loses. So then it is just a matter of public policy.I will leave that to the lawmakers I would add that Hershberger was decided at the height of the misleading doctrinal hysteria over Smith. It is unfortunate that the state Courts were persuaded to make either/or decisions about free exercise in that context They like Congress were given a false choice You have to give her credit-- Justice OConnor conceded that there were definite arenas where SS had not applied Since then, there has been a lot more public education about the actual impact of SS on the vulnerable and affected. That is why the state rfras slowed down considerably and the W Va version is going nowhere. I apologize for going so far off topic Marci On Mar 7, 2012, at 6:55 PM, Volokh, Eugene vol...@law.ucla.edu wrote: So let me make sure I understand your view correctly: 1. A secular restaurant owner who refuses to deliver to an abortion provider for secular reasons is not guilty of religious discrimination in violation of public accommodations laws. (Assume such laws generally apply to discrimination based on religion in restaurant deliveries.) 2. A religious restaurant owner who refuses to deliver to an abortion provider for religious reasons is indeed guilty of religious discrimination in violation of public accommodations laws. (Assume such laws generally apply to discrimination based on religion in restaurant deliveries.) Is that so? And, if so, doesn’t that make the law itself into an unconstitutional religious discrimination, given that it treats precisely the same conduct differently based on the religious motivation of the actor, in violation of the Lukumi Babalu principle? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Wednesday, March 07, 2012 3:39 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Discrimination against people with religious motivations for their actions I have to say that I find Steve's analysis more sound and based on common sense. Marci On Mar 7, 2012, at 3:07 PM, Volokh, Eugene vol...@law.ucla.edu wrote: I think the analysis below is mistaken: Whether or not cabbies’ refusal to carry alcohol should be barred by some general common-carriage requirement, it shouldn’t be treated as religious discrimination. What’s more, I think the argument that such a refusal is religious discrimination itself calls for discrimination against those with religious motivations for their actions. 1. To begin with, as others have pointed out, the cabbies’ actions affected Christians, Jews, Muslims, the irreligious, and anyone else who carried alcohol. Moreover, they didn’t affect Christian, Jews, Muslims, the irreligious, and anyone else who didn’t carry alcohol. 2. Now I take it that the response is that the really devout Muslims of the same religious views as the cabbies generally wouldn’t be affected (just as, I suppose, Mormons or Methodists wouldn’t be affected), because they generally wouldn’t carry alcohol. But that analysis strikes me as unsound, and here’s why. Imagine a case closely modeled on Rasmussen v. Glass (Minn. Ct. App. 1993) (review granted but appeal later dismissed), http://scholar.google.com/scholar_case?case=648897692635049631. A restaurant owner refuses to deliver food to a doctor who performs abortions, because the owner believes abortions are evil, and doesn’t want to provide any help, even indirect, to such evil. And say the restaurant owner’s is irreligious, and his opposition to abortion is based on his own personal moral views (e.g., he follows Nat Hentoff, http://groups.csail.mit.edu/mac/users/rauch/nvp/consistent/indivisible.html). I take it that we would all agree that the restaurant owner is not discriminating based on religion. To be sure, devout Catholics, and devout members of other anti-abortion religious groups, wouldn’t perform abortions. But that doesn’t mean the restaurant owner is discriminating based on the would-be customers’ religions – he’s discriminating based on their secular actions. Now say that another restaurant owner acts precisely the same way, but his opposition to abortion
RE: Discrimination against people with religious motivations for their actions
So let me make sure I understand your view correctly: 1. A secular restaurant owner who refuses to deliver to an abortion provider for secular reasons is not guilty of religious discrimination in violation of public accommodations laws. (Assume such laws generally apply to discrimination based on religion in restaurant deliveries.) 2. A religious restaurant owner who refuses to deliver to an abortion provider for religious reasons is indeed guilty of religious discrimination in violation of public accommodations laws. (Assume such laws generally apply to discrimination based on religion in restaurant deliveries.) Is that so? And, if so, doesn’t that make the law itself into an unconstitutional religious discrimination, given that it treats precisely the same conduct differently based on the religious motivation of the actor, in violation of the Lukumi Babalu principle? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Wednesday, March 07, 2012 3:39 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Discrimination against people with religious motivations for their actions I have to say that I find Steve's analysis more sound and based on common sense. Marci On Mar 7, 2012, at 3:07 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: I think the analysis below is mistaken: Whether or not cabbies’ refusal to carry alcohol should be barred by some general common-carriage requirement, it shouldn’t be treated as religious discrimination. What’s more, I think the argument that such a refusal is religious discrimination itself calls for discrimination against those with religious motivations for their actions. 1. To begin with, as others have pointed out, the cabbies’ actions affected Christians, Jews, Muslims, the irreligious, and anyone else who carried alcohol. Moreover, they didn’t affect Christian, Jews, Muslims, the irreligious, and anyone else who didn’t carry alcohol. 2. Now I take it that the response is that the really devout Muslims of the same religious views as the cabbies generally wouldn’t be affected (just as, I suppose, Mormons or Methodists wouldn’t be affected), because they generally wouldn’t carry alcohol. But that analysis strikes me as unsound, and here’s why. Imagine a case closely modeled on Rasmussen v. Glass (Minn. Ct. App. 1993) (review granted but appeal later dismissed), http://scholar.google.com/scholar_case?case=648897692635049631. A restaurant owner refuses to deliver food to a doctor who performs abortions, because the owner believes abortions are evil, and doesn’t want to provide any help, even indirect, to such evil. And say the restaurant owner’s is irreligious, and his opposition to abortion is based on his own personal moral views (e.g., he follows Nat Hentoff, http://groups.csail.mit.edu/mac/users/rauch/nvp/consistent/indivisible.html). I take it that we would all agree that the restaurant owner is not discriminating based on religion. To be sure, devout Catholics, and devout members of other anti-abortion religious groups, wouldn’t perform abortions. But that doesn’t mean the restaurant owner is discriminating based on the would-be customers’ religions – he’s discriminating based on their secular actions. Now say that another restaurant owner acts precisely the same way, but his opposition to abortion is based on his religious views. As I understand the argument below, he would be seen as discriminating based on religion, because the performing of abortion is “a badge of a religion different from yours.” And thus he would be presumptively required to deliver to the doctor’s office, if state public accommodations law covers discrimination based on religion in restaurant delivery. But this would mean that the law itself has become religiously discriminatory: The secular anti-abortion restaurant owner is free to do something (here, refusing to deliver to an abortion provider), but the religious anti-abortion restaurant owner is barred from doing precisely the same thing. 3. I think the same applies to the alcohol example. A secular cab driver who opposes alcohol on secular grounds would presumably not be treated as discriminating based on religion. But to treat the religious cab driver who opposes alcohol on religious grounds would be treated as discriminating based on religion, and would thus be potentially violating relevant public accommodations bans. Yet such an approach would itself impermissibly discriminate (in violation of Lukumi Babalu) against the religious cab driver based on the religiosity of his motivation for his conduct. Or am I missing something here? Eugene From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu
RE: Discrimination against people with religious motivations for their actions
So I’m not sure that I understand. As I understand Steve’s post, his claim is that when X discriminates against Y based on X’s religious opposition to Y’s actions, even when they are secular actions such as transporting alcohol, that is religious discrimination and potentially actionable as such. Marci, is that the analysis that you endorse as sound? Whether the cabbies should get a religious exemption, under Hershberger, not from a religious discrimination ban but from a common-carrier must-serve requirement strikes me as an entirely different question from the one I was debating with Steve. Eugene Marci Hamilton writes: Eugene--I'm going to focus on the third, relevant issue. The restaurant examples are not analogous because one can do the act and the other cannot do it. In the cabbie situation neither can The cabbie who refuses to carry alcohol for secular reasons loses his job because he is refusing to do his job. The cabbie who refuses for religious reasons is subject to the same rule. The only question is whether there should be an exemption. Under Smith and Hershberger even, I think the religious cabbie loses. So then it is just a matter of public policy.I will leave that to the lawmakers On Mar 7, 2012, at 6:55 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: So let me make sure I understand your view correctly: 1. A secular restaurant owner who refuses to deliver to an abortion provider for secular reasons is not guilty of religious discrimination in violation of public accommodations laws. (Assume such laws generally apply to discrimination based on religion in restaurant deliveries.) 2. A religious restaurant owner who refuses to deliver to an abortion provider for religious reasons is indeed guilty of religious discrimination in violation of public accommodations laws. (Assume such laws generally apply to discrimination based on religion in restaurant deliveries.) Is that so? And, if so, doesn’t that make the law itself into an unconstitutional religious discrimination, given that it treats precisely the same conduct differently based on the religious motivation of the actor, in violation of the Lukumi Babalu principle? Eugene From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Wednesday, March 07, 2012 3:39 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Discrimination against people with religious motivations for their actions I have to say that I find Steve's analysis more sound and based on common sense. Marci On Mar 7, 2012, at 3:07 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: I think the analysis below is mistaken: Whether or not cabbies’ refusal to carry alcohol should be barred by some general common-carriage requirement, it shouldn’t be treated as religious discrimination. What’s more, I think the argument that such a refusal is religious discrimination itself calls for discrimination against those with religious motivations for their actions. 1. To begin with, as others have pointed out, the cabbies’ actions affected Christians, Jews, Muslims, the irreligious, and anyone else who carried alcohol. Moreover, they didn’t affect Christian, Jews, Muslims, the irreligious, and anyone else who didn’t carry alcohol. 2. Now I take it that the response is that the really devout Muslims of the same religious views as the cabbies generally wouldn’t be affected (just as, I suppose, Mormons or Methodists wouldn’t be affected), because they generally wouldn’t carry alcohol. But that analysis strikes me as unsound, and here’s why. Imagine a case closely modeled on Rasmussen v. Glass (Minn. Ct. App. 1993) (review granted but appeal later dismissed), http://scholar.google.com/scholar_case?case=648897692635049631. A restaurant owner refuses to deliver food to a doctor who performs abortions, because the owner believes abortions are evil, and doesn’t want to provide any help, even indirect, to such evil. And say the restaurant owner’s is irreligious, and his opposition to abortion is based on his own personal moral views (e.g., he follows Nat Hentoff, http://groups.csail.mit.edu/mac/users/rauch/nvp/consistent/indivisible.html). I take it that we would all agree that the restaurant owner is not discriminating based on religion. To be sure, devout Catholics, and devout members of other anti-abortion religious groups, wouldn’t perform abortions. But that doesn’t mean the restaurant owner is discriminating based on the would-be customers’ religions – he’s discriminating based on their secular actions. Now say that another restaurant owner acts precisely
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 ___ 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.
