On the narrow question of whether the taxicab scenario involves "religious discrimination" in the way lawyers and statutes usually use the term, it seems to me that Eugene is right about this. The Catholic Church maintains a male-only priesthood for religious reasons. That is sex discrimination, not religious discrimination. (Unless the Catholic Church also refused to ordain male priests who disagree with it about the male-only priesthood, as we discussed awhile back--http://lists.ucla.edu/pipermail/religionlaw/2010-May/024609.html.)
If for religious reasons, the Catholic Church were to decide that former bank robbers were categorically unfit for the priesthood, that would be discrimination-against-bank-robbers not religious discrimination. To make it actionable as "religious discrimination" would mean that only churches could be sued for failing to hire bank robbers (as Eugene notes). And it would also mess things up in the other direction. Cheryl Perich brought a retaliation claim against Hosanna-Tabor. Because Hosanna-Tabor acted for religious reasons, would that make it also (or instead?) a religious discrimination claim? And because Hosanna-Tabor has statutory immunity from religious discrimination claims (under Section 702), would that mean that Cheryl Perich would lose automatically-even without the ministerial exception? I would think not. (Although if I've read Steve's posts right, I'm not so sure he would disagree with any of these points or Eugene's initial point. I think he was focused in a different direction.) Best, Chris From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Saturday, March 10, 2012 5:26 PM To: Law & Religion issues for Law Academics Subject: RE: Discrimination against people with religious motivations for their actions Steve writes that "religious motivation matters," for purposes of making an action taken with religious motivation illegal when the same action taken with secular motivation is legal. I see no basis for that in antidiscrimination law, which generally bans discrimination against an individual "because of such individual's ... religion," not because of the defendant's religion (and discrimination based on a person's transporting alcohol is not based on that person's consistency). And I see a basis in forbidding any such statutory discrimination against the religiously motivated, in Smith and LukumiI. "[T]he 'exercise of religion' often involves not only belief and profession but the performance of (or abstention from) physical acts: assembling with others for a worship service, participating in sacramental use of bread and wine, proselytizing, abstaining from certain foods or certain modes of transportation. It would be true, we think ..., that a State would be 'prohibiting the free exercise [of religion]' if it sought to ban such acts or abstentions only when they are engaged in for religious reasons, or only because of the religious belief that they display." "At a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons." But Steve and I have gone over this territory before, so I'm not sure it's productive for us just to speak to each other. I'm curious, though: Do others share Steve's view on this? (It sounded like Marci might, but then it sounded like she didn't, so I'm not sure.) What am I missing? Is there really a basis for allowing this sort of discrimination against religious believers? Eugene Steve Jamar writes: I hope it comes as no surprise to anyone on this list that there are irreconcilable doctrinal problems with religious liberty no matter how one looks at it. Religious motivation matters. Particular facts matter. Details matter. Eugene's hypothetical restaurant is not analogous to the cabbies in Minneapolis or in general. I am not at all sure that Lukumi extends to private conduct and general anti-discrimination laws. In that case the state singled out a particular religion by ordinance -- not the application of an anti-discrimination law. There is also a world of difference between actions by private parties that discriminate on the basis of religion and ordinances by states (or cities) that ban particular religious practices. If the past decades of religious jurisprudence have taught us anything it should be to by chary of expanding any decision by the court much beyond its peculiar facts. Witness the recent distinguishing of Smith. Who knew? I do not contend that these cases are easy or that they are or can be decided with great consistency -- indeed, I contend exactly the opposite. Motivation matters and I cannot transmute a religious motivated action against someone into a neutral action without any religious motivation. The response to the accommodation in Minneapolis shows a societal anti-Islam animus. Who is surprised? But the claim of a person who has been denied a ride on a common carrier for no reason other than doing something he has an absolutely legal right to do and is denied the ride because of a religious belief by the driver is sure going to feel like religious discrimination whatever niceties one might want to draw. And in fact IS religiously-motivated action excluding someone. It is. Should it be permitted? Should it be accommodated? Probably, in the absence of showing hardship to riders. But if it s the last cab of the night? No way. I generally think we should accommodate religious exercise rights of employers and service providers and everyone to the extent practicable. But that is a long way from finding a constitutional or statutory right to engage in such conduct when engaged in the provision of such public services. There is no constitutional principle or statutory provision that would or should require that. The situations are too nuanced for hard-edged application of generally applicable rules in this area. Minneapolis Airport Authority approached it sensibly and if the solution had been implemented and if it had worked as planned (I have doubts, but maybe it would have), then that is what should be done. We are not a secular universalist society -- not by a long shot. Nor should we be -- it is not within our traditions and experience and our polyglot amalgam of people -- but nor should it be heavy-handed rights-based regime with what becomes a unit veto. Steve -- Prof. Steven D. Jamar vox: 202-806-8017 Associate Director, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ "Never doubt that the work of a small group of thoughtful, committed citizens can change the world. Indeed, it's the only thing that ever has." Margaret Meade
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