It may well be that intentionally discriminatory actions by private
athletic organizations are better labeled as threats to "religious equality"
and not "religious liberty"; on the other hand, sometimes liberty rules
themselves embody equality norms (see, e.g., the shape of free speech doctrine,
which treats content-based restrictions as more violative of liberty than
content-neutral ones). In either case, such intentionally discriminatory
actions rightly arouse condemnation (at least when they involve exclusion of
some religious groups from mostly secular events or programs).
In any event, when this factor of intentional discrimination is
absent, and so is any governmental restrictions on what people can do or even
private action that dramatically interferes with people's lives and livelihood,
I don't think that "religious liberty" is the right label for an organization's
not wanting to change its behavior to make life easier for other religious
groups. Suppose the only restaurants in a town where very few Jews live don't
serve kosher meat. (I expect that this is a very reasonably supposition.) Is
this really properly label an interference - even if a justified interference,
given the burden on restaurants to change their practices - with religious
liberty? I don't think so.
Perhaps a restaurant's enforcing its no-outside-food rule in a situation where
a Jewish member of a mostly non-Jewish party wants to bring in kosher food,
paper plates, and plastic utensils so that he can eat with his friends, who'll
be ordering plenty of the restaurant's food, might qualify as a limit on
liberty: The Jewish member is simply asking to do what he is doing, not asking
the restaurant to change its cooking plans. I don't think there should be laws
mandating restaurants to carve out exceptions from their generally applicable
rules here, but I do think one can discuss this as a question of "liberty."
But when it comes to the patron's demanding that the restaurant actually change
its ingredients, or its food preparation practices, I think that is much more
than a demand that the restaurant respect the patron's liberty - rather, it's
the patron's attempt to restrict the restaurant's liberty in the name of his
religion.
I think the same is true of Alan's soccer league example. The league isn't
violating anyone's liberty through its rules. It might not be accommodating
Jewish players, and we can debate whether it should accommodate them further
(though, as Doug points out, such an accommodation might impose excessive
burdens on other players). But I don't think a refusal to change its plans,
not motivated by hostility to Jews, is rightly treated as interfering with
Jewish players' liberty (though a creation of a schedule that deliberately
burdens Jews might reasonably be treated as a morally wrongful, and perhaps
legally wrongful, violation of religious equality).
Eugene
> -----Original Message-----
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Alan Brownstein
> Sent: Sunday, March 04, 2012 5:20 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: "Religious liberty" in demands that others change their behavior
> to
> follow one's religious beliefs
>
> Eugene, I'm not sure I understand why the motive or purpose of the actor
> controls
> whether the result of the actor's conduct should be viewed as a burden on
> religious liberty or not. I might assign much less weight to the
> discriminating actor's
> interest and consider his conduct more morally reprehensible. But if I focus
> on the
> impact of the decision, there would be an equivalent material burden on the
> ability
> of the religious actor to practice his faith in both cases.
>
> Suppose the only Soccer League for children is in a town where very few Jews
> live. The League is private.
> Games and practices are scheduled for Tuesday, Thursday and Saturday
> afternoon. The League insists that players must agree to show up for all
> scheduled games or practices or they cannot participate in the League's
> activities.
> Observant Jews ask for an accommodation. Without it, their children will not
> be
> able to participate and they are too few in number to create their own league.
>
> In hypo 1, the League refuses the accommodation. It explains that it just
> doesn't
> care enough about the needs and interests of the Jewish families to change the
> way they have traditionally done things in town. The Jewish families religious
> liberty is burdened by the League's decision because it requires them to give
> up
> an opportunity they value in order to obey the dictates of their faith. It's
> not a
> burden that deprives anyone of the necessities of life. But it's a burden.
>
> In hypo 2, the League refuses the accommodation and explains that in fact its
> members are delighted that their decision will have the result of preventing
> Jewish
> children from joining the League. Is that more of a burden on religious
> liberty?
> Why?
>
> Under Smith, discrimination against a religion with regard to a matter that
> is of
> minor importance to the members of that faith invokes strict scrutiny. But a
> neutral
> law that makes it impossible for members of the religion to practice their
> faith
> receives rational basis review. If we are talking only about burdens, not the
> justifications for burdens, why is the burden on the religious liberty of the
> individuals in question greater in the former case compared to the latter
> case.
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