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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