I have to say that I find Steve's analysis more sound and based on common sense.
Marci On Mar 7, 2012, at 3:07 PM, "Volokh, Eugene" <vol...@law.ucla.edu> wrote: > I think the analysis below is mistaken: Whether or not cabbies’ refusal to > carry alcohol should be barred by some general common-carriage requirement, > it shouldn’t be treated as religious discrimination. What’s more, I think > the argument that such a refusal is religious discrimination itself calls for > discrimination against those with religious motivations for their actions. > > 1. To begin with, as others have pointed out, the cabbies’ actions affected > Christians, Jews, Muslims, the irreligious, and anyone else who carried > alcohol. Moreover, they didn’t affect Christian, Jews, Muslims, the > irreligious, and anyone else who didn’t carry alcohol. > > 2. Now I take it that the response is that the really devout Muslims of the > same religious views as the cabbies generally wouldn’t be affected (just as, > I suppose, Mormons or Methodists wouldn’t be affected), because they > generally wouldn’t carry alcohol. But that analysis strikes me as unsound, > and here’s why. > > Imagine a case closely modeled on Rasmussen v. Glass (Minn. Ct. App. 1993) > (review granted but appeal later dismissed), > http://scholar.google.com/scholar_case?case=648897692635049631. A restaurant > owner refuses to deliver food to a doctor who performs abortions, because the > owner believes abortions are evil, and doesn’t want to provide any help, even > indirect, to such evil. And say the restaurant owner’s is irreligious, and > his opposition to abortion is based on his own personal moral views (e.g., he > follows Nat Hentoff, > http://groups.csail.mit.edu/mac/users/rauch/nvp/consistent/indivisible.html). > I take it that we would all agree that the restaurant owner is not > discriminating based on religion. To be sure, devout Catholics, and devout > members of other anti-abortion religious groups, wouldn’t perform abortions. > But that doesn’t mean the restaurant owner is discriminating based on the > would-be customers’ religions – he’s discriminating based on their secular > actions. > > Now say that another restaurant owner acts precisely the same way, but his > opposition to abortion is based on his religious views. As I understand the > argument below, he would be seen as discriminating based on religion, because > the performing of abortion is “a badge of a religion different from yours.” > And thus he would be presumptively required to deliver to the doctor’s > office, if state public accommodations law covers discrimination based on > religion in restaurant delivery. But this would mean that the law itself has > become religiously discriminatory: The secular anti-abortion restaurant > owner is free to do something (here, refusing to deliver to an abortion > provider), but the religious anti-abortion restaurant owner is barred from > doing precisely the same thing. > > 3. I think the same applies to the alcohol example. A secular cab driver > who opposes alcohol on secular grounds would presumably not be treated as > discriminating based on religion. But to treat the religious cab driver who > opposes alcohol on religious grounds would be treated as discriminating based > on religion, and would thus be potentially violating relevant public > accommodations bans. Yet such an approach would itself impermissibly > discriminate (in violation of Lukumi Babalu) against the religious cab driver > based on the religiosity of his motivation for his conduct. Or am I missing > something here? > > Eugene > > From: religionlaw-boun...@lists.ucla.edu > [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar > Sent: Wednesday, March 07, 2012 7:10 AM > To: Law & Religion issues for Law Academics > Subject: Re: Cabbies vs. lawyers > > Of course it is a proxy -- just like a collar or burka or yarmulke -- a badge > of a religion different from yours -- only in this case it is alcohol > possession -- a badge of a religion different from yours. The dodge of "oh, > I'm not against their religion, just against their conduct" can't be allowed > can it? The person transporting the alcohol is the passenger, not the cab > driver. The fact of hidden vs. open possession of the bottle of wine gives > it away, doesn't it -- it is not about the action, it is about the religious > nature of the action -- the violation of the religious beliefs of the driver > by the religious beliefs (ok to have and transport alcohol) by the passenger. > > It is action based on a difference of religious belief. That is > discrimination no matter how one twists it. > > Maybe we should allow this discrimination, just like maybe we should allow > discrimination in allowing landlords to discriminate against gays based on > the landlord's religious beliefs, but that is still religious-based > discrimination. > > You can't suddenly say that motivation doesn't matter just because the > motivation is their own religious beliefs. > > Steve > _______________________________________________ > 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.
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