RE: Minneapolis Taxicab Controversy

[Sisk, Gregory C.]

Thanks very much!  This is good to know.  Our piece on Muslim religious liberty 
in the federal courts was accepted at the Iowa Law Review on Friday, so it has 
a home now.

Greg


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Marie A. Failinger [mfailin...@gw.hamline.edu]
Sent: Monday, March 12, 2012 11:05 AM
To: Law & Religion issues for Law Academics
Subject: Re: Minneapolis Taxicab Controversy

Here is what I have learned about the Minneapolis cab controversy.  According 
to the civil rights leader I spoke with, the controversy started because of the 
fatwa referred to below. After it came out and cabdrivers began to follow it, 
other imams in the Twin Cities came out with opinions indicating that it was 
not forbidden to carry passengers with alcohol.  (Sounds like a federal court 
split-in-circuits type dustup:)   Most of the cab drivers followed the other 
imams' opinions and kept working under the MAC "must carry" rules.  The leader 
said that she had not recently heard anything regarding the legal action.


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)


>>> "Marie A. Failinger"  3/8/2012 9:17 AM >>>
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.)

Marie A. Failinger
___
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RE: Basketball tournaments on the Sabbath

[b...@jmcenter.org]

Rick, Smith did not gut free exercise for any one. Rather, it recognized
that equality, rather than privilege, is the core American value. To
"accommodate" one group (or person) typically results in inconveniencing
others. The proper solution under the First Amendment, it seems to me, is
to schedule ALL basketball games without regard to religion. In such a
regime, government neither advances religion nor is hostile towards it.

Reynolds is an interesting situation, particularly in view of individual
liberty in Lawrence v. Texas, the gay marriage movement, Loving v.
Virginia, Griswold v. Connecticut, etc. However, rather than accommodating
Mormons under free exercise, any consenting adults should be able to marry
under the equal protection clause. Whether tax and employee benefits extend
to all "spouses" or are pro rated is a subject for another day.

Bob

Robert V. Ritter
Jefferson Madison Center for Religious Liberty
Falls Church, VA


On March 3, 2012 at 5:46 PM Rick Duncan  wrote:

> I speak about religious liberty at lots of CLEs for conservative Christian
> lawyers and law students, and I try to tell them that religious liberty is
> a lot like Franklin's view of the American Revolution--"We better all hang
> together, or most assuredly we will all hang separately."
> 
> The cases in which religious liberty has taken a hit--Reynolds and Smith
> are two of the best examples--are ones involving unpopular religious groups
> or practices. I know a lot of Christians were not to upset about Smith--but
> Smith gutted free exercise for everyone.
> 
> I know you all know this, but it is worth remembering from time to time.
> 
> Prof. Rick Duncan (Nebraska Law)
> 
> See my recent paper on The Tea Party, federalism, and liberty at :
>http://ssrn.com/abstract=1984699 
> 
> "And against the constitution I have never raised a storm,It's the
> scoundrels who've corrupted it that I want to reform" --Dick Gaughan (from
> the song, Thomas Muir of Huntershill)
> 
> 
> --- On Sat, 3/3/12, Douglas Laycock  wrote:
> > From: Douglas Laycock 
> > Subject: RE: Basketball tournaments on the Sabbath
> > To: "'Law & Religion issues for Law Academics'"
> > 
> > Date: Saturday, March 3, 2012, 8:26 AM
> > 
> > This morning's story in the Times confirms the unreconstructed Texans
> > theory. It looks like the conservative evangelical schools have taken
> > control of this organization, and tolerance of diversity has never been one
> > of their strengths.
> > 
> > Douglas Laycock
> > Robert E. Scott Distinguished Professor of Law
> > University of Virginia Law School
> > 580 Massie Road
> > Charlottesville, VA  22903
> >  434-243-8546
> > 
> > 
> > -Original Message-
> > From: religionlaw-boun...@lists.ucla.edu
> > 
> > [mailto: religionlaw-boun...@lists.ucla.edu
> >  ] On Behalf Of Richard
> > D. Friedman
> > Sent: Saturday, March 03, 2012 12:19 AM
> > To: Law & Religion issues for Law Academics
> > Subject: Re: Basketball tournaments on the Sabbath
> > 
> > The TAPPS website, http://www.tapps.net/  ,
> > indicates that they agreed to let
> > Beren play when presented with the papers, before they were actually filed.
> > But the lawyer who signed the complaint -- which included the application
> > for the TRO -- confirmed to me that the papers were indeed filed.  I get
> > the
> > impression that TAPPS, while saying adamantly that they were going to
> > adhere
> > to their schedule, decided they would fold quickly if sued; I think someone
> > there finally realized that they were not casting themselves in a favorable
> > light.
> > 
> > Rich Friedman
> > 
> > At 07:19 PM 3/2/2012, you wrote:
> > >It would look less like a discrimination claim and more like an
> > >exemption claim. Judges tend to naively assume that the calendar is a
> > >neutral set of rules, and the sharply different treatment of Sunday and
> > >Saturday here would make it more obvious than usual that that just
> > >isn't true.
> > >
> > >By the way, I was confused about chronology. The complaint was filed,
> > >and TAPPS caved, yesterday. There was another story in the Times this
> > >morning. Haven't heard the score of the game.
> > >
> > >On Fri, 2 Mar 2012 23:11:44 +
> > >  "Finkelman, Paul
> > > < paul.finkel...@albanylaw.edu
> >  >"   <
> > paul.finkel...@albanylaw.edu 
> > >
> > wrote:
> > > >I am guessing that the leaders of this organization never dreamed
> > > of a Jewish basketball team going to the finals.  They never heard of
> > > Dolph Shayes or Nancy Lieberman.
> > > >
> > > >
> > > >
> > > >More seriously:  If the organization (which includes many
> > > Christian schools) played games on Sundays, would the Hebrew high
> > > school be in a weaker position?
> > > >
> > > >
> > > >
> > > >
> > > >
> > > >*
> > > >Paul Finkelman, Ph.D.
> > > >President William McKinley Distinguished Professor of Law Albany Law
> > > >School
>

RE: Minneapolis Taxicab Controversy

[Marie A. Failinger]

Great placement!  I look forward to it.  

 
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)


>>> "Sisk, Gregory C."  3/12/2012 11:15 AM >>>
Thanks very much!  This is good to know.  Our piece on Muslim religious liberty 
in the federal courts was accepted at the Iowa Law Review on Friday, so it has 
a home now.

Greg


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Marie A. Failinger [mfailin...@gw.hamline.edu]
Sent: Monday, March 12, 2012 11:05 AM
To: Law & Religion issues for Law Academics
Subject: Re: Minneapolis Taxicab Controversy

Here is what I have learned about the Minneapolis cab controversy.  According 
to the civil rights leader I spoke with, the controversy started because of the 
fatwa referred to below. After it came out and cabdrivers began to follow it, 
other imams in the Twin Cities came out with opinions indicating that it was 
not forbidden to carry passengers with alcohol.  (Sounds like a federal court 
split-in-circuits type dustup:)   Most of the cab drivers followed the other 
imams' opinions and kept working under the MAC "must carry" rules.  The leader 
said that she had not recently heard anything regarding the legal action.


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)


>>> "Marie A. Failinger"  3/8/2012 9:17 AM >>>
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.)

Marie A. Failinger
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
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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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To subscribe, unsubscribe, change options, or get password, see 
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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

[Marie A. Failinger]

Here is what I have learned about the Minneapolis cab controversy.  According 
to the civil rights leader I spoke with, the controversy started because of the 
fatwa referred to below. After it came out and cabdrivers began to follow it, 
other imams in the Twin Cities came out with opinions indicating that it was 
not forbidden to carry passengers with alcohol.  (Sounds like a federal court 
split-in-circuits type dustup:)   Most of the cab drivers followed the other 
imams' opinions and kept working under the MAC "must carry" rules.  The leader 
said that she had not recently heard anything regarding the legal action.

 
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)


>>> "Marie A. Failinger"  3/8/2012 9:17 AM >>>
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.)
 
Marie A. Failinger
___
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

[Alan Hurst]

Congratulations! I got the paper off SSRN and enjoyed it, and I'm glad
to hear it will be in print soon.

Alan

On Mon, Mar 12, 2012 at 12:15 PM, Sisk, Gregory C.  wrote:
> Thanks very much!  This is good to know.  Our piece on Muslim religious 
> liberty in the federal courts was accepted at the Iowa Law Review on Friday, 
> so it has a home now.
>
> Greg
>
> 
> From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
> on behalf of Marie A. Failinger [mfailin...@gw.hamline.edu]
> Sent: Monday, March 12, 2012 11:05 AM
> To: Law & Religion issues for Law Academics
> Subject: Re: Minneapolis Taxicab Controversy
>
> Here is what I have learned about the Minneapolis cab controversy.  According 
> to the civil rights leader I spoke with, the controversy started because of 
> the fatwa referred to below. After it came out and cabdrivers began to follow 
> it, other imams in the Twin Cities came out with opinions indicating that it 
> was not forbidden to carry passengers with alcohol.  (Sounds like a federal 
> court split-in-circuits type dustup:)   Most of the cab drivers followed the 
> other imams' opinions and kept working under the MAC "must carry" rules.  The 
> leader said that she had not recently heard anything regarding the legal 
> action.
>
>
> 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)
>
>
 "Marie A. Failinger"  3/8/2012 9:17 AM >>>
> 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.)
>
> Marie A. Failinger
> ___
> 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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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

[Volokh, Eugene]

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   fa