Re: Catholics on the Court -- An historical perspective
If anyone is interested in more history about the "Catholic" and "Jewish" seats on the Court, the Journal of Law and Religion will be publishing an article on this history and the religious make-up of the current court by Zachary Shemtob in its upcoming issue, out in about 3 weeks or so. 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 08/31/12 6:53 PM >>> Excuse me if this is already well-known. I thought it was quite striking in light of the current religious composition of the Court. Was just reading through AG Francis Biddle's autobiography and happened upon this fascinating anecdote: While Jim Byrnes was on de facto leave from the Court to help FDR with economic stabilization (striking how radically different mores were back then in terms of executive-judicial interactions!), FDR and Biddle began to discuss who should be appointed when, as expected, Byrnes would finally resign formally to become an executive branch official. The President asked Biddle to consult with Chief Justice Stone about the appointment. (FDR's initial marching orders were to find "a nice, solid Republican" to balance the Court a bit, preferably someone from west of the Mississippi, and, most importantly, not a professor.) Biddle asked Stone about the then-SG, Charley Fahy. Stone responded that although the Court was very fond of Fahy, for he was objective, clear and scrupulous, the President should nevertheless not appoint him, for then "the Church might feel it was always regularly entitled to two" Catholics on the Court! Biddle reported back to FDR, who likewise thought well of Fahy, but who agreed that Fahy should only be appointed if they were able to convince Frank Murphy (the Catholic Justice) to resign to take an important executive post. FDR of course ended up appointing Wiley Rutledge (who was shocked -- he considered himself not up to the job), after giving serious consideration to Ben Cohen and Learned Hand. According to Biddle's account, Cohen was passed over not because he'd be the second Jewish Justice, but because FDR depended upon him too much in the executive branch (something my research has certainly confirmed--a remarkable figure). FDR rejected Hand, who Biddle and Stone considered to be "head and shoulders above the others," largely because he was thought to be too old -- he was 71, whereas Rutledge was a sprightly 49. Hand survived Rutledge by 12 years. ___ 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.
Accommodation
Ellis, the government accommodates people all of the time. By law, it is required to accommodate certain groups of people--e.g., to build ramps so that citizens can get into public buildings, to provide waivers of rules to certain people who get public benefits. I can't legally insist that the government build me a ramp, but a disabled person can. Is that impermissible? I think not--the government has seen that some people have a particular burden in fully functioning as citizens, and allowed for it. In practice, the government accommodates a lot more people. Every time a cop stops you and decides not to give you a ticket for speeding, he/she is essentially accommodating you---he/she is not applying a law that he should, because of some circumstance he/she has discovered about you that is distinctive (you're rushing to the hospital, for example.) A permissible accommodation for a group (including a religious group) is simply a circumstance in which government says, "we have seen that X number of people or this particular group needs to have us apply our discretion to do right by them and not disadvantage them because of their particular characteristic. So we're going to make a "rule" accommodating this group, so that each officer looking at their individual circumstance doesn't have to make the individual decision whether their distinctive circumstance warrants not applying the law to them (i.e., not giving them the ticket.) We think all of these folks should be treated the same, no matter who the officer is." It kills me to sound like Justice Scalia, but if the government willingly accommodates all of these folks in all of these circumstances, but refuses to accommodate some folks when the only reason for their particular difference/exception is religious, isn't that discrimination on the basis of religion banned by the Free Exercise Clause? Now, you might argue that religious accommodations are different because individuals "choose" to be in those situations where they need an exception, but surely most religious people don't "choose" their situation any more than you "chose" to speed in order to get to the hospital faster. Finally, don't you think it is a very good thing, ethically, if we have a government that is willing in lots of circumstances to say, "you as a person matter to us more than our rule, and we are willing to see you as a person?" There will, of course, be a point where the law becomes incoherent if the government looks at every individual case to see what the result should be, but where it is not disruptive to the system, why shouldn't we want the government to see us as persons and not as objects to which the law needs to be applied. 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) >>> "West, Ellis" 4/12/2012 2:34 PM >>> Although the District Court may be correct in saying that the primary purpose of the policy is not “to establish the religion of Islam” or to “promote the practice of Islam,” it does concede that the policy “makes accommodating a multitude of religious practices and beliefs easier and more economical.” Would someone explain to me how that purpose and/or effect is “secular” in nature? Even though Prof. Lupu may be correct in saying that this particular policy is good way of accommodating religious beliefs/practices, his comment simply assumes that a policy of accommodating religious beliefs/practices is secular in nature. How so? Ellis M. West Emeritus Professor of Political Science University of Richmond, VA 23173 804-289-8536 ew...@richmond.edu From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Wednesday, April 11, 2012 7:32 PM To: Law & Religion issues for Law Academics Subject: Re: Court upholds prison no-pork policy against Establishment Clause challenge Is this outcome surprising in any way? Does anyone on the list believe that the court got this wrong? (I certainly don't). If Congress overrode HHS and eliminated pregnancy prevention services from mandatory coverage by employers under the Affordable Care Act, wouldn't the analysis be just the same (imposition of a uniform policy to avoid religious conflict, avoid any need to create controversial exceptions for religious entities, avoid piece-meal litigation, and ease administration of the overall scheme), even though the impetus for change derived from a demand by some for religious accommodation? On Wed, Apr 11, 2012 at 6:48 PM, Volokh, Eugene wrote: River v. Mohr (N.D. Ohio Apr. 5, 2012), http://volokh.com/wp-content/uploads/2012/04/RiversvMohr.pdf . Eugene ___
RE: Accommodation
Ellis, you are right that I didn't respond directly to your question of what "secular" means. And, I agree that "religious entities and persons should get everything that non-religious entities and persons do" is too broad a brush to explain what the issue is here. I guess my answer sort of implied some combination of an ontological plus ethical definition---i.e., in this world, the way we live our lives each day in the real world, seeing and (ethically) respecting how we are different from each other. If I (individually or as a government surrogate) see that you are different because you are religious (claiming to be or acting religious:), I think that is a secular judgment, as it does not require a theological or religious belief or argument to come to the conclusion that you're different--it is an observation that everyone can make regardless of his or her religious belief or lack thereof. If I change my behavior because of this difference I see in you, because I think you are entitled to human dignity and part of recognizing your human dignity is respecting your difference in how I treat you, I think that is a "secular" moral decision if by secular we mean anyone holding any belief can come to that conclusion if he accepts the starting premise. (Of course, as we know, there is a debate about whether that premise is necessarily religious.) If as a result of my behavioral change, your daily material life is made less onerous, it seems to me that effect does not depend on religious tradition or thinking and therefore is secular in the sense I am using it. I I guess this points out that "secular" or "religious" can also be a "code" for asking what the purposes of the Free Exercise and Establishment Clauses are, and whether these purposes have been achieved by a governmental rule or act, which seems to be what you are asking. But, it seems to me more direct and careful to ask the question whether the purpose of the Clauses has been achieved by a government act rather than to ask if a purpose or effect IS secular or religious. (And there I stop, too many books on that.. . ) Though I am sympathetic to your cause of focusing on conscience rather than specific religious traditions here, I don't think that automatically solves the problem of what "secular" means if we are looking at purposes of the Clauses. It simply widens the circle of those who are being accommodated to include more "traditions" than the usual suspects including traditions that are usually lumped together as "secular humanism", while excluding others who would not plausibly describe their request for an exemption as "conscience-driven" or based on a particular philosophical or moral tradition. Is an accommodation then "secular" because it includes more or even most traditions of thinking about moral problems, not just the ones that are usually labeled as religious? If secular means "showing respect for difference" as I have suggested, then maybe yes. If it's meant to mean, "this exemption applies to everybody no matter why they want an exemption," then maybe no. Then there is the complication of religions like mine that believe that the law of God is written on the hearts of all persons, and that's where decisions of "conscience" come from, even from so-called non-believers. If we broaden the circle of the exempted to include all who act out of conscience but not anybody else, have we just accepted a theological (natural law) view and therefore violated the "secular" requirement? Or have we observed in the material world that people seem to have consciences, normatively decided that's a good thing to have in our society, and therefore decided to "incentivize" them to exercise their consciences regularly, a "secular" reason? Time to stop before I get completely confused:) 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) >>> "West, Ellis" 4/12/2012 4:10 PM >>> Marie, I certainly have no objections to exemptions in general just as I have no objections to laws in general from which persons are often exempted—provided the laws (and exemptions?) are secular in purpose and effect, which is what is required by the religion clauses, as originally understood and as interpreted by the Court. Moreover, in my comment, I did not state an objection to religion-based exemptions. I simply asked how such exemptions could be considered secular in nature. I do not think it works to answer that just because all kinds of secular exemptions are granted, religion-based exemptions should be granted or else th
Re: Court upholds prison no-pork policy against EstablishmentClause challenge
If anyone is interested in the European controversy between animal rights advocates and Muslim and Jewish minorities on animal slaughter, here is a comprehensive, not too dated, article on the subject: Pablo Lerner and Alfredo Mordechai Rabello The Prohibition of Ritual Slaughtering (Kosher Shechita and Halal) and Freedom of Religion of Minorities, XXII Journal of Law and Religion 1 (2006-07) 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) >>> Ira Lupu 4/12/2012 9:39 AM >>> I think that at least part of the objections in Europe to serving only halal meat in some restaurants involves objections to methods of halal animal slaughter which (like kosher slaughter) may not be consistent with European standards for humane treatment of animals in their use as food. "Halal only" means all diners are "complicit" in the that particular slaughtering process. On Wed, Apr 11, 2012 at 11:08 PM, Friedman, Howard M. wrote: It is interesting to compare reactions in Europe to similar situations. In 2010, French politicians strongly criticized a restaurant chain that decided to serve only halal meat in 8 of its restaurants with a large Muslim clientele. Agriculture Minister Bruno Le Maire said: "When they remove all the pork from a restaurant open to the public, I think they fall into communalism, which is against the principles and the spirit of the French republic." See: http://religionclause.blogspot.com/2010/02/french-politicians-criticize-restaurant.html In 2007 in Britain, a primary school in Kingsgate attempted to accommodate religious needs of its growing Muslim student body by serving only Halal meat in its lunch menus. A number of parents objected, arguing that the school was forcing their children to to conform to "someone else's culture." See http://religionclause.blogspot.com/2007/02/british-parents-protest-halal-menus-in.html Howard Friedman -Original Message- From: religionlaw-boun...@lists.ucla.edu on behalf of Volokh, Eugene Sent: Wed 4/11/2012 7:46 PM To: Law & Religion issues for Law Academics Subject: RE: Court upholds prison no-pork policy against EstablishmentClause challenge I agree entirely; I mention this partly because I occasionally hear pork bans as examples of quintessential violations of the Establishment Clause, though I don't think they would be. To be sure, a general pork ban might have a different motivation than a prison decision not to serve pork. But at the same time even a general pork ban could certainly be an attempt to accommodate a religious group by minimizing the risk that its members will accidentally ingest pork (or that its members might be put in a position where their employment would require the handling or even sampling of pork). And just as the state of California is free to ban the sale of horsemeat for human consumption (as it did in 1998), so it should be free to ban the sale of pork - not that I'd ever endorse that as a policy matter! Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Wednesday, April 11, 2012 4:32 PM To: Law & Religion issues for Law Academics Subject: Re: Court upholds prison no-pork policy against Establishment Clause challenge Is this outcome surprising in any way? Does anyone on the list believe that the court got this wrong? (I certainly don't). If Congress overrode HHS and eliminated pregnancy prevention services from mandatory coverage by employers under the Affordable Care Act, wouldn't the analysis be just the same (imposition of a uniform policy to avoid religious conflict, avoid any need to create controversial exceptions for religious entities, avoid piece-meal litigation, and ease administration of the overall scheme), even though the impetus for change derived from a demand by some for religious accommodation? On Wed, Apr 11, 2012 at 6:48 PM, Volokh, Eugene mailto:vol...@law.ucla.edu>> wrote: River v. Mohr (N.D. Ohio Apr. 5, 2012), http://volokh.com/wp-content/uploads/2012/04/RiversvMohr.pdf . Eugene ___ To post, send message to Religionlaw@lists.ucla.edu<mailto: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. -- Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law George Washington University Law Schoo
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.
RE: Minneapolis Taxicab Controversy
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 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: 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 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 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 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: Minneapolis Taxicab Controversy
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 alcohol (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 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.
RE: Requirement that cabbies transport alcohol = "tiny burden"?
A point of information about Hershberger that is relevant here to the internal debate within the Somali community about what is required (per what my colleagues who represented the Amish said.) The Amish were split on the question of whether they could, under their community regulations, put an orange triangle on their buggies (the free exercise objection), whether the state's later solution of a black and white triangle with reflective tape was permissible, or whether they should reject the triangle altogether. As with Kiryas Joel, this controversy caused rifts within the Amish community. Perhaps that was in part because the Ordnungen of Amish communities are apparently local, just as the juridical schools that Muslims follow are often local or even sub-local. But, that's a religious freedom reason to try to work out a workable administrative accommodation rather than relying on the courts to resolve rights vs. rights cases, if one believes that part of the value of religious freedom is the value of religious communities. 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) >>> "Volokh, Eugene" 3/7/2012 2:23 PM >>> 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" 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.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.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 tha
Re: Cabbies vs. lawyers
The issue of a "right" or "privilege" to employment which often pervades discussions of rights-vs-rights clashes between religious and other individuals misses the mark in this case, it seems to me, even though in other cases I think it is worthwhile considering that people have a choice of employment, e.g., as a pharmacist, a lawyer, etc. In the case of the professions, students undergo lengthy training, including into the norms of the profession. There are plenty of exit points if the person identifies a conflict with his or her religion. By contrast, the Somali cab drivers in Minnesota drive cabs because those are one of the few jobs available in the Twin Cities that pay enough to support a family and do not require training or credentials that many of them do not have and cannot obtain without difficulty because of cultural and economic barriers. That, and the networking assistance that immigrant communities often provide each other in seeking work is why there are so many of them. There was no clear "you must carry everyone" rule in place before this controversy arose as far as I know, so that they could choose not to opt into this line of work. Moreover, these taxi licenses are a big investment--they used to cost $25,000, though that may have changed recently. A driver would be giving up a huge investment (for him or his boss who paid it) to simply "leave the job." Although there may have been cases where the passengers were significantly inconvenienced (some of the news stories report a 20-minute wait), the complaints of the passengers sounded more in the nature of a "common carrier"/property right to service. A customer quote: "They're here to provide service to people. . . .We were a lawful customer, and we were denied service. That's not our way of doing things." An airports commission quote: "Our expectation is that if you're going to be driving a taxi at the airport, you need to provide service to anybody who wants it." Ironically, but perhaps to be expected, it is the Somali cab drivers who recognize that there is a right to religious freedom in the U.S. in these stories:) 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) >>> Steven Jamar 3/6/2012 7:49 PM >>> Are we to do away with the common carrier rules that have prevailed for centuries? Various businesses are different from one another and have long been treated so according the law. No one has a right to be a cab driver if they cannot comply with the common carrier rules any more than people have the right to be lawyers if they cannot comply with the requirements of our profession. This is not an argument about whether those who control the cabs and make the rules should or should not try to accommodate the demand to not carry someone who has an obvious wine bottle in their possession but will carry someone who has hidden it. But it is not a right to be recognized as a constitutional one. We should not constitutionalize every demand for accommodation. We can do a lot (as indeed we do) through statutes and regulations even in the absence of a recognized constitutional right. -- 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/ "There is no cosmic law forbidding the triumph of extremism in America." Thomas McIntyre ___ 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: Settlement or extortion?
I have to say that I do not "get" this conversation, if we really want people in our communities to be "in relationship" to one another, even if they have opposing views of morality. A driver is apparently conscientiously worried that he might be contributing to (what he considers) a death by making a run. (If he were simply a male trying to exercise power over women, presumably he would have given up the fight when he knew he was in trouble. But Marci is right that he has no right to decide what the woman should do, only what he should do.) It would take a compassionate dispatcher who took his conscientious concerns seriously about 10 minutes to see if someone else could make the run, someone who would no doubt have treated the passengers much more sympathetically and kindly in the van than our C.O., just at the time they needed such treatment. (Imagine the driver trying to talk these women out of abortions in the van. . . .) But, that doesn't happen, so he's out of a job, and because (if I recall correctly) refusing orders is "just cause" for firing, he won't get unemployment benefits (a company that would fire him so abruptly is likely to contest any UC claim), which means he has no money to pay his mortgage, feed his kids, etc. (Unless I missed something in one of the posts that suggests that he got UC.) Is the problem that he used the law to get a substitute for his unemployment comp while he looked for work (in this economy)? Or that he didn't put his job ahead of his conscience? Or that he didn't investigate where he might be asked to take people before he took the job (e.g., he assumed the risk?) Or that he simply assumed, wrongly it seems, that his client must be seeking an abortion because it was Planned Parenthood? Note the other compassionate course of action: if this "run" is a regular or even occasional one, why wouldn't the company sit him down and say, "I'm sorry, but part of this job is making runs to PP and that's not negotiable even if you have conscience problems with it. We'll give you 2 weeks to find another job, and meanwhile we won't ask you to make runs to PP." Does the law deliver a better solution in this case? 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) >>> "Scarberry, Mark" 4/25/2011 7:25 PM >>> Yes, I agree with Sandy, unless there are several drivers each of whom is perfectly capable of handling the others’ routes (trading routes) without inconvenience, in which case it seems that there is no real reason to deny the accommodation for the conscientious opponent of the death penalty. It would be rare for the facts to exist that would invoke the exception to my agreement with Sandy about the UPS driver. But it is not a stretch to think that an “on demand” bus service may have multiple drivers any one of whom may be dispatched as easily as the one with the conscientious objection. Those may have been the facts in the real case at hand, but I don’t know whether they were. Mark From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Sanford Levinson Sent: Monday, April 25, 2011 5:15 PM To: Law & Religion issues for Law Academics Subject: RE: Settlement or extortion? If the facts are as Mark describes, I would be (provisionally) sympathetic. But I suspect such fact situations are few and far between. I take it that he agrees that the UPS drive would be out of luck if the delivery were part of the “regular daily assignment.” sandy From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark Sent: Monday, April 25, 2011 7:12 PM To: Law & Religion issues for Law Academics Subject: RE: Settlement or extortion? No, I am not saying that a UPS driver should have such a right simpliciter. But if a UPS truck is being specially dispatched to the prison to deliver the chemicals, and if there are several drivers available, so that there will be little if any delay or inconvenience in having one of the other drivers deliver the package, I do think someone who is morally opposed to the death penalty should be able to ask that one of the other drivers be dispatched. That seems a minimal concession to the conscience of the death penalty opponent. Firing the driver in such a situation seems extreme unless the desire to routinize life and to homogenize the workforce outweighs concerns of conscience. Mark From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Sanford Levinson Sent: Monday, April 25, 2011 4:56 PM To: Law & Religion issues for Law Academics Subject: RE: S
Re: N.J. public transit employee fired for blasphemy
Per Sandys' and others' remarks, it seems to me if we think about it, virtually all of the incitement cases ultimately rest on the Court's perception that real people will or will not be seriously harmed or killed. (In Dennis and the WWI cases, apparently they thought yes; in Brandenburg and some other WWI and cases like Terminiellio, etc. no.) And, I think it is fair to recognize the dilemma that the local sheriff and judge (and ultimately the Supreme Court) face here: it may be true that we do not and should not hold individuals criminally responsible for their omission/failure to stop a criminal act from causing the harm; in that sense, courts and sheriff are not RESPONSIBLE in that legal sense for what violent Islamicists do about a Qur'an burning. But that doesn't mean they themselves don't face a moral dilemma in SOME cases like this, i.e., if they act to quash the speech, some people's lives will be saved, while uncertain harm to speech interests will occur. Of course, predicting what will actually happen can be a messy business, as all of those cases point out, which argues for a strong speech-protective regimen. But as much a civil libertarian as I am, I am not sure I would not stop the Qur'an burning if I were quite convinced even one death would result from suppressing it, even if the "national security" rationale is more uncertain and nebulous. Without necessarily wishing to defend Justiice Breyer's offhand suggestion, isn't the obvious difference between flag burning and Koran burning a) the predictability of "real" violence, some of it directed against Americans and ! b) severe consequences for basic American national security interests. Anyone who finds Scalia's "Americans will die" comment to be a plausible "argument" of constititional law should be hesitant to censure Breyer. Sandy From: religionlaw-boun...@lists.ucla.edu To: Law & Religion issues for Law Academics Sent: Thu Sep 16 11:55:58 2010 Subject: Re: N.J. public transit employee fired for blasphemy I think Breyer was attempting to demonstrate his approach to constitutional law interpretation — thinking out loud to show how he would work through the material in an idealized, judgely fashion. He's absorbed in the subject of case-by-case adjudication and how "carefully" everything needs to be thought about. It was very ivory tower of him not to anticipate how his statement would play in the press and with laypersons who jump to read it as tipping his hand on what he'd really decide about free speech and Koran-burning. Ann On Sep 16, 2010, at 10:58 AM, hamilto...@aol.com wrote: How does burning the Koran differ from burning the flag? I thought we had been through this debate before and find Justice Breyer's comments strange, to say the least. Marci In a message dated 9/16/2010 11:27:09 A.M. Eastern Daylight Time, con...@indiana.edu writes: In an interview with George Stephanopolous, Justice Breyer has suggested that burning the Koran conceivably might not be protected by the First Amendment at all. According to Breyer, “Holmes said it doesn’t mean you can shout 'fire' in a crowded theater . . . . Well, what is it? Why? Because people will be trampled to death. And what is the crowded theater today? What is the being trampled to death? . . . It will be answered over time in a series of cases which force people to think carefully.” http://blogs.abcnews.com/george/2010/09/justice-stephen-breyer-is-burning-koran-shouting-fire-in-a-crowded-theater.html Surely this cannot be unprotected speech, can it? Wouldn’t that amount to a global heckler’s veto whenever speech triggers or threatens a sufficiently violent reaction? And wouldn’t such a doctrine effectively reward - and thus encourage - such violence or threats thereof? Dan Conkle ___ 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. 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) ___ 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 ca
Re: Augusta State University student sues school over requirement that she undergo "remediation" due to her religious views
This subtext of this discussion (which I think applies to the refusing pharmacist and religious landlord cases as well, I think) challenges our common understanding about the meaning of public accommodation. Should it be the pre-Civil War definition, which centered around arbitrary refusals to extend a narrow range of necessary services, i.e., carriages, rooms, etc to individuals, not tied to a particular status? Should it be tied to some specific status discrimination (whatever the status list might be, more or less expansive) and specific types of public goods/services as the Civil War amendments and later legislation did? Or have we come to understand the concept of public accommodation to mean that any professional or commercial service or merchandise that is not offered to an intimate exclusive group (a la the Roberts v. Jaycees paradigm) must be offered to all demanding customers on the terms that either they or an outside licensing body dictate? My initial reaction is that it makes some sense to go for the middle ground--e.g., to use some set of status discrimination criteria as the defining line between permissible and non-permissible exclusion of patients, customers, etc. and perhaps for contested statuses (like welfare receipt, veteran's status, etc.) some notion of "necessary service" that accommodates modern life, realizing that this would still be subject to a lot of debates. Assuming no such prohibited discrimination, if the provider announces his/her exclusions in some public way (to avoid maltreatment, permit patient choice of provider, etc), is not a monopoly, and treats the patients/clients he/she does accept according to professional standards (which in this case may include patient self-determination), why shouldn't he or she be able to make patient/client choices based on conscientiously held beliefs, religious or otherwise? Academics make exclusionary decisions all of the time, both about the students we will admit, and what we are willing to teach them. Same with lawyers, subject to the ethical duty to make sure that clients don't go completely unrepresented because of inability to pay or unpopularity of cause. (We don't, of course, exclude on the basis of prohibited statuses and even some non-prohibited statuses.) Since we law professors do not generally accommodate "customer demands" for service, no matter what, I don't know why we should have a free pass if we are not willing to extend some choice to other professionals. 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) >>> Steven Jamar 7/29/2010 11:01 AM >>> Many people do indeed pray to God on Sunday and prey on people on Monday. But many people believe in not separating their lives in that way. So, no. The refusal or inability to separate one's values from work should not bar someone from a job. Inability to do the job should. If one is unable to authorize a medical treatment or to do a medical treatment that is the proper medical treatment for a particular condition, that person should not practice medicine, unless we have collectively deemed that we will make an exception, e.g., conscience clauses permitting doctors and hospitals to refuse to perform abortions. Conscience clauses are more than a little problematic practically and legally in some instances, but they can work well enough. The harder question is whether there is a constitutional right to a conscience-based exception to meeting the practice norms. If there is not, then the school can refuse to grant the degree to the student who cannot conform her conduct to the legitimate secular norms. But the school cannot discriminate on the basis of beliefs alone. On 7/28/2010 2:50 PM, Paul Finkelman wrote: I am not suggesting Christians can't go to medical school just that they cannot impose their religious doctrines on their patients and they should not be graduated if they will not do that. Again, Will, are you going to graduate med students who insist on being surgeons but will not use blood transfusion? This issue is not one of belief, nor is it one of practice. It is one of separating the workplace from what you believe outside the workplace. If you cannot make that separation, then it is not unreasonable to suggest that you cannot take a certain job. -- Prof. Steven D. Jamar vox: 202-806-8017 Associate Director, Institute of Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ "To see a World in a Grain of Sand And a Heaven in a Wild Flower, Hold Infinity in the palm of your hand And Eternity in an hou
