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)
>
>
> _______________________________________________
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> _______________________________________________
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