Another reason the racism line of cases may not apply is that race and religion are different. Religious expression always involves an element of disagreement with others. Taking any position on religious matters automatically entails disagreeing with several other religious viewpoints. Racial difference by contrast does not entail inherent disagreement about viewpoints.
If I can harp on the defamation of religions issue one more time, this is one of the major problems with the defamation of religions initiative. It seeks to put religious disagreement into the same category as religious discrimination; insulting Mohammed (which includes disagreement that he is a messenger from God) is made equivalent to using racial epithets. Every time the UN addresses the topic, it puts it under the category of racial discrimination, not freedom of religion or belief. Eric ________________________________________ From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman [lederman.ma...@gmail.com] Sent: Friday, September 17, 2010 12:48 AM To: Law & Religion issues for Law Academics Subject: Re: N.J. public transit employee fired for blasphemy If I may offer a brief response to Eugene's initial question, which was not about whether the state can prohibit such conduct, but instead whether a public employer can discharge a public employee for conspicuously engaging in such public conduct . . . . (Of course, if the conduct can be prohibited, then presumably the firing would be lawful -- but I'll assume, as have most of you, that the government could not criminally penalize the Koran-burning.) Most cases of this ilk have involved law enforcement officials -- and the courts generally have permitted public employers to sanction them for racist public speech. Even Justice Marshall's opinion in Rankin suggests as much -- see note 18, "cf."-citing McMullen v. Carson, 754 F.2d 936 (CA11 1985) (clerical employee in sheriff's office properly discharged for stating on television news that he was an employee for the sheriff's office and a recruiter for the Ku Klux Klan). I haven't reviewed the cases in a while -- perhaps in recent years there are some involving offensive public speech by puplic employees in a non-law-enforcement capacity. But it's hard to see how the rationale of the McMullen line of cases -- generally, that the public might reasonably develop doubts and fears about the ability of such an officer to fairly and impartially enforce the law -- might extend to an employee whose principal responsibility is "ensuring there are enough train cars positioned to be put into service." What's the state interest in firing the employee? I should note, however, that the discipline here might find some support by analogy in the rationale of the 1997 CTA11 case Shahar v. Bowers . . . unless you believe, as I do, that Shahar was wrongly decided. On Wed, Sep 15, 2010 at 8:05 PM, Volokh, Eugene <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote: The New York Daily News, http://www.nydailynews.com/ny_local/2010/09/14/2010-09-14_koran_burner_derek_fenton_fired_from_his_job_at_nj_transit.html, reports: [Derek Fenton, t]he protester who burned pages from the Koran outside a planned mosque near Ground Zero has been fired from NJTransit, sources and authorities said Tuesday.... “Mr. Fenton’s public actions violated New Jersey Transit’s code of ethics,” an agency statement said. “NJ Transit concluded that Mr. Fenton violated his trust as a state employee and therefore [he] was dismissed.” ... Fenton was an assistant train-consist coordinator, sources said — a job that entails ensuring there are enough train cars positioned to be put into service.... If Fenton was fired for burning the Koran while off-duty, his First Amendment rights probably were violated, Chris Dunn of the New York Civil Liberties Union said.... Is this permissible under Pickering? Should it be? Eugene _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto: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.
