For what it is worth, I find the arguments made by Eugene, Greg, and Doug (among others) convincing. My one caveat: If the cabbies, as is common, live in a city with an artificially restricted number of licenses, and if devout Muslims comprise a (surprising?) percentage of those legally entitled to the monopolistic privileges a license brings with it, then I’d probably modify my views. Consider the postal worker who doesn’t want to deliver the offensive publication: It’s one thing if an “accommodation” could easily be made (though I’m curious what it would be in a Postal Service that is stripping service (and numbers of employees) to the minimum). It would be quite another thing to force the recipient to walk down to the post office in lieu of receiving the mail at his/her home. I don’t think that abstract principles will necessarily decide concrete cases. The actual facts count. (There is a real logic behind the “cab rank” rule for lawyers in a city where there are few lawyers and unpopular people might legitimately believe that allowing lawyers to exercise discretion in picking their clients would leave vulnerable minorities without the genuine opportunity for effective representation.)
sandy From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Tuesday, March 06, 2012 6:39 PM To: Law & Religion issues for Law Academics Subject: Cabbies vs. lawyers In a sense this may be obvious, but it might be worth restating: One thing that is facing the cabbies is that for complex reasons cabbies are stripped of liberties that the rest of us take for granted. If we disapprove of alcohol – whether because we’re Muslim or Methodist, or because a close family member is an alcoholic or was injured by a drunk driver – we are free to refuse to fix the plumbing in a bar, to give legal advice to Coors, or to refuse to let people carrying beer bottles onto our business property. To be sure, our right to freedom of choice may have been limited in some ways by bans on race discrimination, sex discrimination, religious discrimination, and the like. But whether right or wrong those bans still leave us mostly free to choose whom to do business with. The cab drivers thus want only the same kind of liberty that the rest of us generally have. Their argument isn’t a pure freedom of choice argument (which the law has rightly or wrongly denied to cabbies generally) but a freedom of choice argument coupled with a religious freedom argument; but that simply shows that this freedom of choice is even more important to them than it generally is to the rest of us. This doesn’t mean that they should win. Maybe there’s a really good reason for denying cabbies, including religious objectors, this freedom of choice when it comes to transporting alcohol. But it does cast a different light on objections to people “choosing [clients] according to [the choosers’] religious belief,” or “demand[ing] a ‘right’ to exist in a culture that mirrors their views.” No-one makes such objections when we as lawyers pick and choose our clients; no-one faults us for choosing them according to our religious beliefs (unless those beliefs require race or sex discrimination or such); no-one says that lawyers who refuse to work for alcohol distributors demand a right to exist in a culture that mirrors our views. Likewise, I don’t think it’s fair to condemn cabbies for seeking, in this one area that is unusually important to them, the same freedom that lawyers have. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Tuesday, March 06, 2012 2:59 PM To: Law & Religion issues for Law Academics Cc: Law & Religion issues for Law Academics Subject: Re: Requirement that cabbies transport alcohol = "tiny burden"? Why is anger at a publicly licensed cab picking and choosing passengers according to religious belief anything like anti-Muslim animus? Cabbies can't reject passengers on race. Why should they be able to reject those with religious beliefs different from their own? If they don't want to be in the company of nonbelievers, they should find another line of work. Also-- a number of imams announced the cabbies were misreading the Koran. There was no requirement they not transport others' cases of wine. No one was asking them to drink the wine We have crossed the line from legitimate claims to accommodation into the territory where religious believers demand a "right" to exist in a culture that mirrors their views. That is called Balkanization Marci
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