I gernerally agree with Sandy's caveat (which of course does not mean that he and I would agree on how to decide all the hard cases.)
If an individual, or a religious group, occupy a blocking position such that their refusal to provide a service actually deprives others of the service, then the balance of interests changes. Such blocking positions actually do create situations in which it is not possible for both sides to live their own values. Then we have to choose. But usually we do not. On Tue, 6 Mar 2012 18:49:11 -0600 Sanford Levinson <slevin...@law.utexas.edu> wrote: >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 > > Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 _______________________________________________ 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. 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