A point of information about Hershberger that is relevant here to the
internal debate within the Somali community about what is required (per
what my colleagues who represented the Amish said.) The Amish were
split on the question of whether they could, under their community
regulations, put an orange triangle on their buggies (the free exercise
objection), whether the state's later solution of a black and white
triangle with reflective tape was permissible, or whether they should
reject the triangle altogether. As with Kiryas Joel, this controversy
caused rifts within the Amish community. Perhaps that was in part
because the Ordnungen of Amish communities are apparently local, just as
the juridical schools that Muslims follow are often local or even
sub-local.
But, that's a religious freedom reason to try to work out a workable
administrative accommodation rather than relying on the courts to
resolve rights vs. rights cases, if one believes that part of the value
of religious freedom is the value of religious communities.
Marie A. Failinger
Professor of Law
Editor, Journal of Law and Religion
Hamline University School of Law
1536 Hewitt Avenue
Saint Paul, MN 55104 U.S.A.
651-523-2124 (work phone)
651-523-2236 (work fax)
mfailin...@hamline.edu (email)
>>> "Volokh, Eugene" <vol...@law.ucla.edu> 3/7/2012 2:23 PM >>>
Yes, State v. Hershberger, 462 N.W.2d 393 (Minn.
1990).
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton
Sent: Wednesday, March 07, 2012 12:18 PM
To: Law & Religion issues for Law Academics
Cc: Law & Religion issues for Law Academics
Subject: Re: Requirement that cabbies transport alcohol = "tiny
burden"?
Eugene-- just a point of information--is there a lead MN Sup Court case
that applying strict scrutiny in cases involving neutral generally
applicable laws and worship conduct that is illegal?
Thanks!
On Mar 7, 2012, at 3:11 PM, "Volokh, Eugene" <vol...@law.ucla.edu>
wrote:
But the Minnesota Constitution has been interpreted as
following Sherbert and Yoder, so isn’t the question indeed why the cab
drivers aren’t constitutionally entitled to an exemption? As it
happens, I oppose constitutional exemption regimes, at the state and
federal levels, and support jurisdiction-by-jurisdiction RFRAs, which
means the question becomes statutory, and trumpable by the state
legislature. But the Minnesota rule is one of constitutionally mandated
exemptions, unless strict scrutiny is satisfied, no?
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Wednesday, March 07, 2012 7:22 AM
To: Law & Religion issues for Law Academics
Subject: Re: Requirement that cabbies transport alcohol = "tiny
burden"?
For the record, I was in favor of the accommodation attempted for the
Somali Muslim cab drivers in Minneapolis and am in favor of most
accommodations of religion done by employers and public agencies and the
government in general -- even quite odd ones like this particular
interpretation of the Quran by this group of Somalis.
But that is quite different from positing that there is a right in the
Somalis to engage in this sort of discrimination let alone a
constitutional right to do so.
Doug is right -- sometimes hostility to religious accommodation is
motivated by a universalist thrust that we should in fact all be treated
equally -- the same sort of hostility one sees against affirmative
action for Blacks. And Doug is also right that sometimes the hostility
is directed against a religion and members of that religion -- as JWs,
Muslims, Jews, and in some settings and some times, Catholics and others
have experienced (19th Century Baptist prayer -- "God save us from the
Unitarians" who at the time had circuit riders and were quite
evangelical, unlike today).
No doubt both of these played into this event -- especially hostility
to Islam.
But the subtextual motivation of hostility to the religion cannot make
what is otherwise lawful discrimination unlawful, or does it? Is there
a constitutionally meaningful distinction between -- "I don't like your
religion and therefor will not accommodate you" and "I don't think you
are entitled to an accommodation as a matter of constitutional right" --
where there is in fact no constitutional right to accommodation, as
here.
Steve
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