RE: Requirement that cabbies transport alcohol = tiny burden?
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.edumailto: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.edumailto: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 ___ To post, send message to Religionlaw@lists.ucla.edumailto: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. ___ 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.
Re: Discrimination against people with religious motivations for their actions
Might I suggest another way of looking at this debate: race. Not the race of the drivers and that of their passengers. instead i take it as common ground that no one would tolerate taxi drivers turning down passengers on the basis of race. Does it follow that we should treat all prohibited grounds of discrimination with the same rigor, both as a matter of primary law-all forbidden categories are treated equal-or because once the prohibition on discrimination is weakened, even in good cause, the pressure for other exemptions will grow and will weaken the non discrimination norm in regard to race. The latter argument was raised after Boerne when the question was whether to include civil rights claims in a statute protecting religious liberty.. Marc From: Steven Jamar [mailto:stevenja...@gmail.com] Sent: Wednesday, March 07, 2012 09:45 PM To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Subject: Discrimination against people with religious motivations for their actions 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 ___ 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.
Re: Minneapolis Taxicab Controversy
Thanks very much, Marie. Is any or all of this documented somewhere, in addition to the state court of appeals case? On Wed, Mar 7, 2012 at 12:31 PM, Marie A. Failinger mfailin...@gw.hamline.edu wrote: Just to add to my previous post in response to Marty's questions: 1. Not all of the Muslim cabbies felt religiously obliged to refuse to carry passengers with open displays of al to the cohol (or dogs) as I remember. However, there was a fatwa issued by a local Muslim organization saying that they shouldn't do it. Since a fatwa is a legal opinion, it certainly provides legal authority for the cabbies' insistence that they shouldn't do it; it wasn't simply their personal view per se. 2. Airport regulation 102 now provides that taxi drivers cannot refuse to take a passenger unless he refuses to pay, is seriously intoxicated or is a physical threat. One provision of the section also prohibits drivers from refusing service based on race, gender, religion, national origin, ethnicity, marital status, disability, sexual orientation, or age, or having a service dog. 3. The cabbies' appeal for an injunction was denied by the trial court and upheld by Minnesota Court of Appeals in 2008 on the basis that they had an adequate remedy at law--any license denial could be appealed and the cabbie could keep his license in the meantime. Dolal v. Metropolitan Airports Com'n, 2008 WL 4133517 http://minnesota.publicradio.org/display/web/2008/09/09/muslim_cabs_court/ I couldn't find much recently about the effect on Muslims serving the airport except this related news, in January, a major airport taxi company here fired Somali drivers who protested the refusal of the company to sit down and negotiate their working conditions http://minnesota.publicradio.org/collections/special/columns/news_cut/archive/2012/01/report_somali_cabbies_learn_pr.shtml 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) Marty Lederman lederman.ma...@gmail.com 3/7/2012 5:35 AM Can anyone point me to a good, thorough account of what happened in Minneapolis, including (i) the explanations, if any, the cabbies offered for why the lack of the exemption burdened their religious exercise (did it mean they were unable to accept work as other forms of common carriers, such as pilots, UPS/FedEx delivery employees, bus drivers, etc.?); (ii) how the controversy was resolved as a matter of law; and (iii) what became of the Muslim drivers after the exemption was revoked. Thanks in advance. ___ 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. ___ 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.
Re: Discrimination against people with religious motivations for their actions
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
RE: Once it took the step of opening play to non-Christians
I won't extend the conversation too much, but I appreciate the points Eugene makes. I'm not sure they change my mind entirely, although I do very much think one should be sensitive to these counter-arguments. I suppose the reason I take the position I do, notwithstanding what Eugene says about incentives for and against ecumenicalism, is that I don't treat ecumenicalism as an unqualified good. It depends for me in part on the group's own sense of its mission and what it demands. The more ecumenical its own sense of itself is, the more its ecumenicalism suggests a need to try and accommodate others, at least in the demographic universe it is seeking to inhabit; the more sectarian its sense of itself, the less I think it should be obliged to make shift to meet others' needs. That it might face public criticism is a possibility, but, if it was open about wanting to live out a specifically sectarian mission, I would probably not be among the critics. I should add that I'm speaking more in civic terms than legal ones. I tend to think that 1) the Court was right in both BSA and Hosanna-Tabor, 2) that doesn't mean that those groups should be immune from public criticism for their views and decisions; sometimes they will hold fast despite that criticism, and sometimes their own sense of mission may change as a result of both public criticism and internal debate; and 3) in any event, groups that are or ought to be entitled to some legal protection qua groups should engage in serious reflection about their mission and what it requires, even if the courts themselves are obliged to defer to them for the most part about that mission. Best to all, Paul From: vol...@law.ucla.edu To: religionlaw@lists.ucla.edu Date: Sun, 4 Mar 2012 16:26:06 -0800 Subject: Once it took the step of opening play to non-Christians I think I understand Paul’s point, and the arguments in favor it, but I wonder whether it might get things backward. TAPPS could likely have focused itself on Christian private schools with little difficulty for it. (It might have benefited from including secular schools, but it likely could have survived just as well limited to Christian schools.) On the other hand, my sense is that in such situations it’s a great benefit to minority schools – both secular schools and especially Jewish schools – to be able to join such an association, since otherwise there might be very few schools for them to play against. In many places, an all-Orthodox-Jewish league would have very few teams, and very long travel times to games. So TAPPS generally did Jewish schools a good turn by letting them participate. And if it hadn’t let them participate, I suspect many would have faulted them for being unfairly exclusionary, with the argument being “What’s it to you that the school is Jewish?” But now TAPPS is being told that by being somewhat more open, it now incurs this extra obligation. That strikes me as both creating perverse incentives, and being a poor reward for TAPPS’ moderate ecumenicalism, because it demands that this moderate ecumenicalism lead to considerably more demanding ecumenicalism. As to the guest/host analogy, I would think that this too cuts the opposite direction at least as much as in the direction suggested below (and perhaps more). If I invite someone to my home, or into my private association, I surely would feel some impulse to accommodate him; if someone comes for dinner but says that he can’t eat pork (and doesn’t otherwise demand a kosher kitchen), I’ll probably try to give him a non-pork option even if the main course is ham. But I would hope that he would feel an even stronger impulse not to reward my hospitality with excessive demands, or with repeating his demands after I say no (even if I’m being not as hospitable as I might be in saying so) – and I would certainly hope that he wouldn’t reward my hospitality with a lawsuit. Eugene Paul Horwitz writes: In this case, it seems to me that the road to a reasonable resolution of the problem lies in the fact that TAPPS opened itself to a situation in which it welcomed the possibility of sporting events involving others whose religious needs might require accommodation. If the league had remained solely devoted to Christian schools and, in effect, had valued Christian community over sports or all-state intramural play itself, then refusing to change its schedule would a) be reasonable and b) not be much of a problem, since the issue would be unlikely ever to arise. Once it took the step of opening play to non-Christians, however, including those with an equally thick set of religious commitments, then common sense, if not simply being a good host, would suggest that the league ought to anticipate and accommodate the religious needs of its guests. But certainly the work here is not done by invoking common sense alone.
Re: Minneapolis Taxicab Controversy
Marty, the fatwa is described in the following Star Tribune article, http://www.startribune.com/local/11586646.html (which also reports one local well-respected imam's opinion that carrying a disability service dog should not pose a problem for Muslim cabdrivers.) The airport ordinance can be found on the Twin Cities Metropolitan Airports Commission website. I am trying to investigate the fallout issue with a local Muslim civil rights leader and will report back if I get any info. In fact, if anyone is interested in investigating the extreme nature of some opinions about Muslims in the U.S., I would suggest that you Google this issue and read some of the non-news postings. 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) Marty Lederman lederman.ma...@gmail.com 3/8/2012 5:29 AM Thanks very much, Marie. Is any or all of this documented somewhere, in addition to the state court of appeals case? On Wed, Mar 7, 2012 at 12:31 PM, Marie A. Failinger mfailin...@gw.hamline.edu wrote: Just to add to my previous post in response to Marty's questions: 1. Not all of the Muslim cabbies felt religiously obliged to refuse to carry passengers with open displays of al to the cohol (or dogs) as I remember. However, there was a fatwa issued by a local Muslim organization saying that they shouldn't do it. Since a fatwa is a legal opinion, it certainly provides legal authority for the cabbies' insistence that they shouldn't do it; it wasn't simply their personal view per se. 2. Airport regulation 102 now provides that taxi drivers cannot refuse to take a passenger unless he refuses to pay, is seriously intoxicated or is a physical threat. One provision of the section also prohibits drivers from refusing service based on race, gender, religion, national origin, ethnicity, marital status, disability, sexual orientation, or age, or having a service dog. 3. The cabbies' appeal for an injunction was denied by the trial court and upheld by Minnesota Court of Appeals in 2008 on the basis that they had an adequate remedy at law--any license denial could be appealed and the cabbie could keep his license in the meantime. Dolal v. Metropolitan Airports Com'n, 2008 WL 4133517 http://minnesota.publicradio.org/display/web/2008/09/09/muslim_cabs_court/ I couldn't find much recently about the effect on Muslims serving the airport except this related news, in January, a major airport taxi company here fired Somali drivers who protested the refusal of the company to sit down and negotiate their working conditions http://minnesota.publicradio.org/collections/special/columns/news_cut/archive/2012/01/report_somali_cabbies_learn_pr.shtml 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 ( tel:651-523-2124 ) (work phone) 651-523-2236 ( tel:651-523-2236 ) (work fax) mfailin...@hamline.edu (email) Marty Lederman lederman.ma...@gmail.com 3/7/2012 5:35 AM Can anyone point me to a good, thorough account of what happened in Minneapolis, including (i) the explanations, if any, the cabbies offered for why the lack of the exemption burdened their religious exercise (did it mean they were unable to accept work as other forms of common carriers, such as pilots, UPS/FedEx delivery employees, bus drivers, etc.?); (ii) how the controversy was resolved as a matter of law; and (iii) what became of the Muslim drivers after the exemption was revoked. Thanks in advance. ___ 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. ___ 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.
RE: Requirement that cabbies transport alcohol = tiny burden?
(1) Can you say a bit more about the circumstances of the hour-long delays, given that it seems that many cab drivers were happy to transport anyone who is willing to pay? Were they at the airport, with dispatches cabs, or with cabs hailed on the street? (2) Can you also please say a bit more about the cabbies’ reactions to the imams’ statements – is it just that they all said “OK, no problem then”? Or did some continue to insist on their own interpretation of the religious doctrine? If a few did persist in their “it’s sinful for us to transport alcohol” view, then I would think their position would be constitutionally protected – and the fact that there were so few would cut in favor of an exemption, because it would reduce the likelihood of the hour-long delays that are being discussed, no? Marci Hamilton writes: Thanks Eugene for taking us back to the facts. I received many emails and calls regarding the situation and there were people who had to wait an hour for a cab because of the objection. None of them were anti-Muslim. They did have the sense that the cabbies were discriminating against them because they did not share their religious affiliation. I raised earlier the fact that the imams had intervened saying there was no rule about transporting alcohol because that is why the issue died away and did not resurface. Marci ___ 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.
Re: Discrimination against people with religious motivations for their actions
Yes, Eugene, I think you are missing the essential point that common carriers are not the same as other employers and when it comes to choice as to serve or not serve, they are more limited in what they can and cannot do. They are bound by more than non-discrimination laws. Or that is how I always understood the law in this field, but I could be mistaken - I've not worked in it for over 2 decades now. So the baseline is different. It is not the same as for ordinary businesses. I get the distinction you are trying so to make. And I agree that it is not the same as excluding someone because of a particular affiliation with a sect. But it still is discrimination based on religion whether it is based on the customer not conforming to the religious expectations and demands of the business or the business excluding because of a status of the customer -- in both instances it is because of the religious beliefs and conduct of the business, not the customer. I am troubled by the blame-the-customer attitude evinced in the solicitude for the person engaged in provision of a public service such as common carriers and public transportation. As I have written some time ago now, I think we should indeed recognize the religious needs or constraints or beliefs of the employer -- but one should also recognize and support the interests of the others. If a system can be worked out with minimal harm to all involved, that is best. But I would favor the weaker party to the stronger -- in this situation the one needing the cab is decidedly in the weaker position. Steve On Mar 7, 2012, at 3:07 PM, Volokh, Eugene 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
Re: you in today?
No prob Sent from my iPhone On Mar 8, 2012, at 9:17 AM, Marty Lederman lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote: sorry about that -- wrong address! On Thu, Mar 8, 2012 at 9:01 AM, Marty Lederman lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote: I had a couple of questions about Section 7 students. Thanks ___ To post, send message to Religionlaw@lists.ucla.edumailto: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. ___ 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.
RE: Discrimination against people with religious motivations for their actions
I agree with the statement in the first paragraph that, if a cab driver is treated as a common carrier, then he might have to transport people who are carrying alcohol (unless he is entitled to a religious exemption under a Sherbert/Yoder-model state constitutional regime, or a state RFRA regime). And this is so regardless of whether he's discriminating based on a characteristic such as religion. But the second paragraph goes on and says that a business owner who discriminates against a customer who is doing something that the owner thinks is religiously improper is engaging in discrimination based on religion. The logic of that paragraph goes far beyond the common carrier situation (and indeed in the common carrier situation is irrelevant whether the common carrier is discriminating based on religion). If the claim is that this discrimination based on the actor's religious beliefs is the sort of religious discrimination prohibited by public accommodation discrimination laws, that strikes me as mistaken. As I mentioned in my earlier post, a secular restaurant owner who refuses to deliver to an abortion provider because of the owner's secular opposition to abortion should be precisely on the same footing as a religious restaurant owner who refuses to deliver to an abortion provider because of the owner's religious opposition to abortion - neither is guilty of actionable religious discrimination. Likewise, a secular cab driver who refuses to transport people carrying alcohol because of the driver's secular opposition to alcohol should be precisely on the same footing as a religious cab driver who refuses to transport people carrying alcohol because of the driver's religious opposition to alcohol. Again, neither is guilty of actionable religious discrimination. Perhaps both are guilty of violating some common carrier obligation; but that's another story. In either case, the suggestion that there's something illegally religiously discriminatory about a business owner's acting based on his own religious beliefs and conduct strikes me as mistaken - indeed, unconstitutional given Lukumi Babalu. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Wednesday, March 07, 2012 3:40 PM To: Law Religion issues for Law Academics Subject: Re: Discrimination against people with religious motivations for their actions Yes, Eugene, I think you are missing the essential point that common carriers are not the same as other employers and when it comes to choice as to serve or not serve, they are more limited in what they can and cannot do. They are bound by more than non-discrimination laws. Or that is how I always understood the law in this field, but I could be mistaken - I've not worked in it for over 2 decades now. So the baseline is different. It is not the same as for ordinary businesses. I get the distinction you are trying so to make. And I agree that it is not the same as excluding someone because of a particular affiliation with a sect. But it still is discrimination based on religion whether it is based on the customer not conforming to the religious expectations and demands of the business or the business excluding because of a status of the customer -- in both instances it is because of the religious beliefs and conduct of the business, not the customer. I am troubled by the blame-the-customer attitude evinced in the solicitude for the person engaged in provision of a public service such as common carriers and public transportation. As I have written some time ago now, I think we should indeed recognize the religious needs or constraints or beliefs of the employer -- but one should also recognize and support the interests of the others. If a system can be worked out with minimal harm to all involved, that is best. But I would favor the weaker party to the stronger -- in this situation the one needing the cab is decidedly in the weaker position. Steve On Mar 7, 2012, at 3:07 PM, Volokh, Eugene 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
