RE: Cabbies vs. lawyers
They aren’t discriminating against anyone on the basis of that person’s religion. The cabbies’ own religious beliefs are leading them to discriminate against people who are openly carrying alcoholic beverages. I’m not sure I know of any religion that calls on its adherents to carry alcoholic beverages openly. Mark S. Scarberry Pepperdine Univ. School of Law Malibu, CA 90263 (310)506-4667 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Tuesday, March 06, 2012 5:18 PM To: Law Religion issues for Law Academics Subject: Re: Cabbies vs. lawyers Are not the cabbies discriminating against customers on the basis of religion? Or is the alcohol proxy enough to remove that taint? Sent from my iPhone On Mar 6, 2012, at 7:38 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: In a sense this may be obvious, but it might be worth restating: One thing that is facing the cabbies is that for complex reasons cabbies are stripped of liberties that the rest of us take for granted. If we disapprove of alcohol – whether because we’re Muslim or Methodist, or because a close family member is an alcoholic or was injured by a drunk driver – we are free to refuse to fix the plumbing in a bar, to give legal advice to Coors, or to refuse to let people carrying beer bottles onto our business property. To be sure, our right to freedom of choice may have been limited in some ways by bans on race discrimination, sex discrimination, religious discrimination, and the like. But whether right or wrong those bans still leave us mostly free to choose whom to do business with. The cab drivers thus want only the same kind of liberty that the rest of us generally have. Their argument isn’t a pure freedom of choice argument (which the law has rightly or wrongly denied to cabbies generally) but a freedom of choice argument coupled with a religious freedom argument; but that simply shows that this freedom of choice is even more important to them than it generally is to the rest of us. This doesn’t mean that they should win. Maybe there’s a really good reason for denying cabbies, including religious objectors, this freedom of choice when it comes to transporting alcohol. But it does cast a different light on objections to people “choosing [clients] according to [the choosers’] religious belief,” or “demand[ing] a ‘right’ to exist in a culture that mirrors their views.” No-one makes such objections when we as lawyers pick and choose our clients; no-one faults us for choosing them according to our religious beliefs (unless those beliefs require race or sex discrimination or such); no-one says that lawyers who refuse to work for alcohol distributors demand a right to exist in a culture that mirrors our views. Likewise, I don’t think it’s fair to condemn cabbies for seeking, in this one area that is unusually important to them, the same freedom that lawyers have. Eugene From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Tuesday, March 06, 2012 2:59 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Requirement that cabbies transport alcohol = tiny burden? Why is anger at a publicly licensed cab picking and choosing passengers according to religious belief anything like anti-Muslim animus? Cabbies can't reject passengers on race. Why should they be able to reject those with religious beliefs different from their own? If they don't want to be in the company of nonbelievers, they should find another line of work. Also-- a number of imams announced the cabbies were misreading the Koran. There was no requirement they not transport others' cases of wine. No one was asking them to drink the wine We have crossed the line from legitimate claims to accommodation into the territory where religious believers demand a right to exist in a culture that mirrors their views.That is called Balkanization Marci ___ 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
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 stevenja...@gmail.com 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: Cabbies vs. lawyers
I already said, in response to Sandy, that if a religious individual or group occupies a blocking position, the balance of interests changes. Whether they occupy such a position is a question of fact. You seem to assume axiomatically that they always prevent people from finding cab, or whatever other service we're talking about. But at least you seem to have backed off finding a problem with them making religious judgments about nonbelievers. On Tue, 6 Mar 2012 21:35:11 -0500 (EST) hamilto...@aol.com wrote: Doug-- I don't know who the royal we is in your comment, but I'm not making a complaint. I'm making what is surely an obvious philosophical, analytical point. The person carrying the wine is not being picked up because they are carrying wine, which presumably is permitted in their religious world view. If you are going to accommodate the religious cabbie, you are going to burden the religious passenger with wine, assuming a finite number of cabbies. That is why a neutral, common carrier rule is preferable to the religion-specific exemption from service you seem to be advocating. I assume you favor the federal civil right that forbids a private employer from discriminating on the basis of religion? How is this any different? A cab is not a religious organization. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu; hamilton02 hamilto...@aol.com Sent: Tue, Mar 6, 2012 9:15 pm Subject: Re: Cabbies vs. lawyers I thought we were concerned about people getting home from he airport. Now the complaint is that the cabbie is making a religious judgment about the passenger. A religious judgment is a form of belief, and I thought it was common ground that belief is protected absolutely, as the Court said in Cantwell v. Connecticut. Lord knows we are all making judgments about the cabbies. Those of us who drink, or who have looser standards on any other issue than more morally scupulous adherents of various religions, certainly cannot have a right for those more scuprulous souls not to make judgments about us. On Tue, 6 Mar 2012 20:52:35 -0500 (EST) hamilto...@aol.com wrote: That is, in my view, a misstatement of the facts. The person carrying the alcohol holds a religious worldview that permits them to drink, carry, and transport alcohol. The cabdriver refusing to transport them is making a religious judgment about the passenger. The only passengers you can be certain this cabdriver will always transport are those with the same religious worldview. Discounting the religious world view of the passenger leads to a one-sided analysis. Again, just as in the contraception context, the contemporary discourse generally has discounted the religious beliefs of the person who is affected by the accommodation. You aren't going to find many pairings of people in the US where both don't have some religious beliefs/world view. Religious claimants who want accommodation freight their arguments with claims of the religious vs. the secular, but that is a rhetorical ruse. In fact, a religious individual demanding an accommodation more often than not burdens someone who does not share their religious world view but who has a competing world view. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 They aren’t discriminating against anyone on the basis of that person’s religion. The cabbies’ own religious beliefs are leading them to discriminate against people who are openly carrying alcoholic beverages. I’m not sure I know of any religion that calls on its adherents to carry alcoholic beverages openly. Mark S. Scarberry Pepperdine Univ. School of Law Malibu, CA 90263 (310)506-4667 Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Scarberry, Mark mark.scarbe...@pepperdine.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Tue, Mar 6, 2012 8:40 pm Subject: RE: Cabbies vs. lawyers They aren’t discriminating against anyone on the basis of that person’s religion. The cabbies’ own religious beliefs are leading them to discriminate against people who are openly carrying alcoholic beverages. I’m not sure I know of any religion that calls on its adherents to carry alcoholic beverages openly. Mark S. Scarberry Pepperdine Univ. School of Law Malibu, CA 90263 (310)506-4667 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf
Re: Cabbies vs. lawyers
I rarely if ever talk about nonbelievers because they are rare in the US. My point was that the cabbie was engaging in religious discrimination by refusing to carry someone whose conduct violated his religious beliefs. And that the one carrying the wine was operating in their own religious world view. The cabbie is like the employer who refuses to hire based on religion (his own). Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: hamilton02 hamilto...@aol.com; dlaycock dlayc...@virginia.edu; religionlaw religionlaw@lists.ucla.edu Sent: Tue, Mar 6, 2012 10:29 pm Subject: Re: Cabbies vs. lawyers I apologize if I was too quick to generalize. Maybe you meant that it is OK to make religious judgments about nonbelievers, but forbidden to make religious judgments about drinkers. An implicit distinction that I completely missed. On Tue, 6 Mar 2012 22:15:53 -0500 (EST) hamilto...@aol.com wrote: Doug-- This is actually hilarious. Reread my previous posts. You are not even in the ballpark, as attested to your notion that I was ever discussing religious judgments about nonbelievers. I'm almost certain that I was talking about believers and believers. I haven't backed off of whatever you think I said, because I never said it. In any event, this horse is officially beaten in my view. Marci I already said, in response to Sandy, that if a religious individual or group occupies a blocking position, the balance of interests changes. Whether they occupy such a position is a question of fact. You seem to assume axiomatically that they always prevent people from finding cab, or whatever other service we're talking about. But at least you seem to have backed off finding a problem with them making religious judgments about nonbelievers. Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: hamilton02 hamilto...@aol.com; dlaycock dlayc...@virginia.edu; religionlaw religionlaw@lists.ucla.edu Sent: Tue, Mar 6, 2012 9:38 pm Subject: Re: Cabbies vs. lawyers I already said, in response to Sandy, that if a religious individual or group occupies a blocking position, the balance of interests changes. Whether they occupy such a position is a question of fact. You seem to assume axiomatically that they always prevent people from finding cab, or whatever other service we're talking about. But at least you seem to have backed off finding a problem with them making religious judgments about nonbelievers. On Tue, 6 Mar 2012 21:35:11 -0500 (EST) hamilto...@aol.com wrote: Doug-- I don't know who the royal we is in your comment, but I'm not making a complaint. I'm making what is surely an obvious philosophical, analytical point. The person carrying the wine is not being picked up because they are carrying wine, which presumably is permitted in their religious world view. If you are going to accommodate the religious cabbie, you are going to burden the religious passenger with wine, assuming a finite number of cabbies. That is why a neutral, common carrier rule is preferable to the religion-specific exemption from service you seem to be advocating. I assume you favor the federal civil right that forbids a private employer from discriminating on the basis of religion? How is this any different? A cab is not a religious organization. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu; hamilton02 hamilto...@aol.com Sent: Tue, Mar 6, 2012 9:15 pm Subject: Re: Cabbies vs. lawyers I thought we were concerned about people getting home from he airport. Now the complaint is that the cabbie is making a religious judgment about the passenger. A religious judgment is a form of belief, and I thought it was common ground that belief is protected absolutely, as the Court said in Cantwell v. Connecticut. Lord knows we are all making judgments about the cabbies. Those of us who drink, or who have looser standards on any other issue than more morally scupulous adherents of various religions, certainly cannot have a right for those more scuprulous souls not to make judgments about us. On Tue, 6 Mar 2012 20:52:35 -0500 (EST) hamilto...@aol.com wrote: That is, in my view, a misstatement of the facts. The person carrying the alcohol holds a religious worldview that permits
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 because the motivation is their own religious beliefs. Steve On Mar 6, 2012, at 8:35 PM, Rienzi, Mark L wrote: I don't think it is fair to the cabbies to say that they are discriminating on the basis of religion, or that the alcohol is a proxy by which they are trying to do so. If they said they wouldn't drive anyone wearing a priest's collar or a nun's habit, that would be discriminating on the basis of religion, and the item would be a fair proxy for religious discrimination. But it seems entirely more likely here that they are not discriminating at all based on the religious beliefs of their passengers--presumably they are willing to drive Christians, Jews, Muslims, atheists and anyone in between. Rather, their request is simply to not be forced to personally participate in an activity (the transporting of alcohol) which, for them, would be illicit. I don't think the fact that they consult their own religious beliefs in that decision can make their request into religious discrimination. Mark From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Steven Jamar [stevenja...@gmail.com] Sent: Tuesday, March 06, 2012 8:18 PM To: Law Religion issues for Law Academics Subject: Re: Cabbies vs. lawyers Are not the cabbies discriminating against customers on the basis of religion? Or is the alcohol proxy enough to remove that taint? Sent from my iPhone On Mar 6, 2012, at 7:38 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: In a sense this may be obvious, but it might be worth restating: One thing that is facing the cabbies is that for complex reasons cabbies are stripped of liberties that the rest of us take for granted. If we disapprove of alcohol – whether because we’re Muslim or Methodist, or because a close family member is an alcoholic or was injured by a drunk driver – we are free to refuse to fix the plumbing in a bar, to give legal advice to Coors, or to refuse to let people carrying beer bottles onto our business property. To be sure, our right to freedom of choice may have been limited in some ways by bans on race discrimination, sex discrimination, religious discrimination, and the like. But whether right or wrong those bans still leave us mostly free to choose whom to do business with. The cab drivers thus want only the same kind of liberty that the rest of us generally have. Their argument isn’t a pure freedom of choice argument (which the law has rightly or wrongly denied to cabbies generally) but a freedom of choice argument coupled with a religious freedom argument; but that simply shows that this freedom of choice is even more important to them than it generally is to the rest of us. This doesn’t mean that they should win. Maybe there’s a really good reason for denying cabbies, including religious objectors, this freedom of choice when it comes to transporting alcohol. But it does cast a different light on objections to people “choosing [clients] according to [the choosers’] religious belief,” or “demand[ing] a ‘right’ to exist in a culture that mirrors their views.” No-one makes such objections when we as lawyers pick and choose our clients; no-one faults us for choosing them according to our religious beliefs (unless those beliefs require race or sex discrimination or such); no-one says that lawyers who refuse to work for alcohol distributors demand a right to exist in a culture that mirrors our views. Likewise, I don’t think it’s fair to condemn cabbies for seeking, in this one area that is unusually important to them, the same freedom that lawyers have. Eugene From: religionlaw-boun...@lists.ucla.edumailto:religionlaw
Re: Cabbies vs. lawyers
Prof. Jamar asks an important question. Is it relevant, though, that the US has not adopted the cab rank rule. I wonder--a genuine question--how often elites are forced into the genuine dilemmas posed by being a common carrier. The cabbies have far fewer career options than any reader of this list. (To be sure, we are common cariers vis-a-vis our students: we can't refuse to teach lawyering skills to would-be tobacco lawyers or others likely to engage in what we regard as immoral, but, alas, legal behaviors.). I don't know exactly where to go with this. I agree, for example, that postal workers and pharmacists should be treated as common carriers. As I've already written, I just don't think there is a neat principle that will resolve close cases. Sandy From: religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Tue Mar 06 19:49:13 2012 Subject: Re: Cabbies vs. lawyers 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.
Cabbies vs. lawyers
In a sense this may be obvious, but it might be worth restating: One thing that is facing the cabbies is that for complex reasons cabbies are stripped of liberties that the rest of us take for granted. If we disapprove of alcohol – whether because we’re Muslim or Methodist, or because a close family member is an alcoholic or was injured by a drunk driver – we are free to refuse to fix the plumbing in a bar, to give legal advice to Coors, or to refuse to let people carrying beer bottles onto our business property. To be sure, our right to freedom of choice may have been limited in some ways by bans on race discrimination, sex discrimination, religious discrimination, and the like. But whether right or wrong those bans still leave us mostly free to choose whom to do business with. The cab drivers thus want only the same kind of liberty that the rest of us generally have. Their argument isn’t a pure freedom of choice argument (which the law has rightly or wrongly denied to cabbies generally) but a freedom of choice argument coupled with a religious freedom argument; but that simply shows that this freedom of choice is even more important to them than it generally is to the rest of us. This doesn’t mean that they should win. Maybe there’s a really good reason for denying cabbies, including religious objectors, this freedom of choice when it comes to transporting alcohol. But it does cast a different light on objections to people “choosing [clients] according to [the choosers’] religious belief,” or “demand[ing] a ‘right’ to exist in a culture that mirrors their views.” No-one makes such objections when we as lawyers pick and choose our clients; no-one faults us for choosing them according to our religious beliefs (unless those beliefs require race or sex discrimination or such); no-one says that lawyers who refuse to work for alcohol distributors demand a right to exist in a culture that mirrors our views. Likewise, I don’t think it’s fair to condemn cabbies for seeking, in this one area that is unusually important to them, the same freedom that lawyers have. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Tuesday, March 06, 2012 2:59 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Requirement that cabbies transport alcohol = tiny burden? Why is anger at a publicly licensed cab picking and choosing passengers according to religious belief anything like anti-Muslim animus? Cabbies can't reject passengers on race. Why should they be able to reject those with religious beliefs different from their own? If they don't want to be in the company of nonbelievers, they should find another line of work. Also-- a number of imams announced the cabbies were misreading the Koran. There was no requirement they not transport others' cases of wine. No one was asking them to drink the wine We have crossed the line from legitimate claims to accommodation into the territory where religious believers demand a right to exist in a culture that mirrors their views.That is called Balkanization 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: Cabbies vs. lawyers
For what it is worth, I find the arguments made by Eugene, Greg, and Doug (among others) convincing. My one caveat: If the cabbies, as is common, live in a city with an artificially restricted number of licenses, and if devout Muslims comprise a (surprising?) percentage of those legally entitled to the monopolistic privileges a license brings with it, then I’d probably modify my views. Consider the postal worker who doesn’t want to deliver the offensive publication: It’s one thing if an “accommodation” could easily be made (though I’m curious what it would be in a Postal Service that is stripping service (and numbers of employees) to the minimum). It would be quite another thing to force the recipient to walk down to the post office in lieu of receiving the mail at his/her home. I don’t think that abstract principles will necessarily decide concrete cases. The actual facts count. (There is a real logic behind the “cab rank” rule for lawyers in a city where there are few lawyers and unpopular people might legitimately believe that allowing lawyers to exercise discretion in picking their clients would leave vulnerable minorities without the genuine opportunity for effective representation.) sandy From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Tuesday, March 06, 2012 6:39 PM To: Law Religion issues for Law Academics Subject: Cabbies vs. lawyers In a sense this may be obvious, but it might be worth restating: One thing that is facing the cabbies is that for complex reasons cabbies are stripped of liberties that the rest of us take for granted. If we disapprove of alcohol – whether because we’re Muslim or Methodist, or because a close family member is an alcoholic or was injured by a drunk driver – we are free to refuse to fix the plumbing in a bar, to give legal advice to Coors, or to refuse to let people carrying beer bottles onto our business property. To be sure, our right to freedom of choice may have been limited in some ways by bans on race discrimination, sex discrimination, religious discrimination, and the like. But whether right or wrong those bans still leave us mostly free to choose whom to do business with. The cab drivers thus want only the same kind of liberty that the rest of us generally have. Their argument isn’t a pure freedom of choice argument (which the law has rightly or wrongly denied to cabbies generally) but a freedom of choice argument coupled with a religious freedom argument; but that simply shows that this freedom of choice is even more important to them than it generally is to the rest of us. This doesn’t mean that they should win. Maybe there’s a really good reason for denying cabbies, including religious objectors, this freedom of choice when it comes to transporting alcohol. But it does cast a different light on objections to people “choosing [clients] according to [the choosers’] religious belief,” or “demand[ing] a ‘right’ to exist in a culture that mirrors their views.” No-one makes such objections when we as lawyers pick and choose our clients; no-one faults us for choosing them according to our religious beliefs (unless those beliefs require race or sex discrimination or such); no-one says that lawyers who refuse to work for alcohol distributors demand a right to exist in a culture that mirrors our views. Likewise, I don’t think it’s fair to condemn cabbies for seeking, in this one area that is unusually important to them, the same freedom that lawyers have. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Tuesday, March 06, 2012 2:59 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Requirement that cabbies transport alcohol = tiny burden? Why is anger at a publicly licensed cab picking and choosing passengers according to religious belief anything like anti-Muslim animus? Cabbies can't reject passengers on race. Why should they be able to reject those with religious beliefs different from their own? If they don't want to be in the company of nonbelievers, they should find another line of work. Also-- a number of imams announced the cabbies were misreading the Koran. There was no requirement they not transport others' cases of wine. No one was asking them to drink the wine We have crossed the line from legitimate claims to accommodation into the territory where religious believers demand a right to exist in a culture that mirrors their views.That is called Balkanization 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
Re: Cabbies vs. lawyers
I gernerally agree with Sandy's caveat (which of course does not mean that he and I would agree on how to decide all the hard cases.) If an individual, or a religious group, occupy a blocking position such that their refusal to provide a service actually deprives others of the service, then the balance of interests changes. Such blocking positions actually do create situations in which it is not possible for both sides to live their own values. Then we have to choose. But usually we do not. On Tue, 6 Mar 2012 18:49:11 -0600 Sanford Levinson slevin...@law.utexas.edu wrote: For what it is worth, I find the arguments made by Eugene, Greg, and Doug (among others) convincing. My one caveat: If the cabbies, as is common, live in a city with an artificially restricted number of licenses, and if devout Muslims comprise a (surprising?) percentage of those legally entitled to the monopolistic privileges a license brings with it, then I’d probably modify my views. Consider the postal worker who doesn’t want to deliver the offensive publication: It’s one thing if an “accommodation” could easily be made (though I’m curious what it would be in a Postal Service that is stripping service (and numbers of employees) to the minimum). It would be quite another thing to force the recipient to walk down to the post office in lieu of receiving the mail at his/her home. I don’t think that abstract principles will necessarily decide concrete cases. The actual facts count. (There is a real logic behind the “cab rank” rule for lawyers in a city where there are few lawyers and unpopular people might legitimately believe that allowing lawyers to exercise discretion in picking their clients would leave vulnerable minorities without the genuine opportunity for effective representation.) sandy From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Tuesday, March 06, 2012 6:39 PM To: Law Religion issues for Law Academics Subject: Cabbies vs. lawyers In a sense this may be obvious, but it might be worth restating: One thing that is facing the cabbies is that for complex reasons cabbies are stripped of liberties that the rest of us take for granted. If we disapprove of alcohol – whether because we’re Muslim or Methodist, or because a close family member is an alcoholic or was injured by a drunk driver – we are free to refuse to fix the plumbing in a bar, to give legal advice to Coors, or to refuse to let people carrying beer bottles onto our business property. To be sure, our right to freedom of choice may have been limited in some ways by bans on race discrimination, sex discrimination, religious discrimination, and the like. But whether right or wrong those bans still leave us mostly free to choose whom to do business with. The cab drivers thus want only the same kind of liberty that the rest of us generally have. Their argument isn’t a pure freedom of choice argument (which the law has rightly or wrongly denied to cabbies generally) but a freedom of choice argument coupled with a religious freedom argument; but that simply shows that this freedom of choice is even more important to them than it generally is to the rest of us. This doesn’t mean that they should win. Maybe there’s a really good reason for denying cabbies, including religious objectors, this freedom of choice when it comes to transporting alcohol. But it does cast a different light on objections to people “choosing [clients] according to [the choosers’] religious belief,” or “demand[ing] a ‘right’ to exist in a culture that mirrors their views.” No-one makes such objections when we as lawyers pick and choose our clients; no-one faults us for choosing them according to our religious beliefs (unless those beliefs require race or sex discrimination or such); no-one says that lawyers who refuse to work for alcohol distributors demand a right to exist in a culture that mirrors our views. Likewise, I don’t think it’s fair to condemn cabbies for seeking, in this one area that is unusually important to them, the same freedom that lawyers have. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Tuesday, March 06, 2012 2:59 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Requirement that cabbies transport alcohol = tiny burden? Why is anger at a publicly licensed cab picking and choosing passengers according to religious belief anything like anti-Muslim animus? Cabbies can't reject passengers on race. Why should they be able to reject those with religious beliefs different from their own? If they don't want to be in the company of nonbelievers, they should find another line of work. Also-- a number of imams
Re: Cabbies vs. lawyers
Are not the cabbies discriminating against customers on the basis of religion? Or is the alcohol proxy enough to remove that taint? Sent from my iPhone On Mar 6, 2012, at 7:38 PM, Volokh, Eugene vol...@law.ucla.edu wrote: In a sense this may be obvious, but it might be worth restating: One thing that is facing the cabbies is that for complex reasons cabbies are stripped of liberties that the rest of us take for granted. If we disapprove of alcohol – whether because we’re Muslim or Methodist, or because a close family member is an alcoholic or was injured by a drunk driver – we are free to refuse to fix the plumbing in a bar, to give legal advice to Coors, or to refuse to let people carrying beer bottles onto our business property. To be sure, our right to freedom of choice may have been limited in some ways by bans on race discrimination, sex discrimination, religious discrimination, and the like. But whether right or wrong those bans still leave us mostly free to choose whom to do business with. The cab drivers thus want only the same kind of liberty that the rest of us generally have. Their argument isn’t a pure freedom of choice argument (which the law has rightly or wrongly denied to cabbies generally) but a freedom of choice argument coupled with a religious freedom argument; but that simply shows that this freedom of choice is even more important to them than it generally is to the rest of us. This doesn’t mean that they should win. Maybe there’s a really good reason for denying cabbies, including religious objectors, this freedom of choice when it comes to transporting alcohol. But it does cast a different light on objections to people “choosing [clients] according to [the choosers’] religious belief,” or “demand[ing] a ‘right’ to exist in a culture that mirrors their views.” No-one makes such objections when we as lawyers pick and choose our clients; no-one faults us for choosing them according to our religious beliefs (unless those beliefs require race or sex discrimination or such); no-one says that lawyers who refuse to work for alcohol distributors demand a right to exist in a culture that mirrors our views. Likewise, I don’t think it’s fair to condemn cabbies for seeking, in this one area that is unusually important to them, the same freedom that lawyers have. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Tuesday, March 06, 2012 2:59 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Requirement that cabbies transport alcohol = tiny burden? Why is anger at a publicly licensed cab picking and choosing passengers according to religious belief anything like anti-Muslim animus? Cabbies can't reject passengers on race. Why should they be able to reject those with religious beliefs different from their own? If they don't want to be in the company of nonbelievers, they should find another line of work. Also-- a number of imams announced the cabbies were misreading the Koran. There was no requirement they not transport others' cases of wine. No one was asking them to drink the wine We have crossed the line from legitimate claims to accommodation into the territory where religious believers demand a right to exist in a culture that mirrors their views.That is called Balkanization 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. ___ 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: Cabbies vs. lawyers
I thought we were concerned about people getting home from he airport. Now the complaint is that the cabbie is making a religious judgment about the passenger. A religious judgment is a form of belief, and I thought it was common ground that belief is protected absolutely, as the Court said in Cantwell v. Connecticut. Lord knows we are all making judgments about the cabbies. Those of us who drink, or who have looser standards on any other issue than more morally scupulous adherents of various religions, certainly cannot have a right for those more scuprulous souls not to make judgments about us. On Tue, 6 Mar 2012 20:52:35 -0500 (EST) hamilto...@aol.com wrote: That is, in my view, a misstatement of the facts. The person carrying the alcohol holds a religious worldview that permits them to drink, carry, and transport alcohol. The cabdriver refusing to transport them is making a religious judgment about the passenger. The only passengers you can be certain this cabdriver will always transport are those with the same religious worldview. Discounting the religious world view of the passenger leads to a one-sided analysis. Again, just as in the contraception context, the contemporary discourse generally has discounted the religious beliefs of the person who is affected by the accommodation. You aren't going to find many pairings of people in the US where both don't have some religious beliefs/world view. Religious claimants who want accommodation freight their arguments with claims of the religious vs. the secular, but that is a rhetorical ruse. In fact, a religious individual demanding an accommodation more often than not burdens someone who does not share their religious world view but who has a competing world view. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 They aren’t discriminating against anyone on the basis of that person’s religion. The cabbies’ own religious beliefs are leading them to discriminate against people who are openly carrying alcoholic beverages. I’m not sure I know of any religion that calls on its adherents to carry alcoholic beverages openly. Mark S. Scarberry Pepperdine Univ. School of Law Malibu, CA 90263 (310)506-4667 Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Scarberry, Mark mark.scarbe...@pepperdine.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Tue, Mar 6, 2012 8:40 pm Subject: RE: Cabbies vs. lawyers They aren’t discriminating against anyone on the basis of that person’s religion. The cabbies’ own religious beliefs are leading them to discriminate against people who are openly carrying alcoholic beverages. I’m not sure I know of any religion that calls on its adherents to carry alcoholic beverages openly. Mark S. Scarberry Pepperdine Univ. School of Law Malibu, CA 90263 (310)506-4667 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Tuesday, March 06, 2012 5:18 PM To: Law Religion issues for Law Academics Subject: Re: Cabbies vs. lawyers Are not the cabbies discriminating against customers on the basis of religion? Or is the alcohol proxy enough to remove that taint? Sent from my iPhone On Mar 6, 2012, at 7:38 PM, Volokh, Eugene vol...@law.ucla.edu wrote: In a sense this may be obvious, but it might be worth restating: One thing that is facing the cabbies is that for complex reasons cabbies are stripped of liberties that the rest of us take for granted. If we disapprove of alcohol – whether because we’re Muslim or Methodist, or because a close family member is an alcoholic or was injured by a drunk driver – we are free to refuse to fix the plumbing in a bar, to give legal advice to Coors, or to refuse to let people carrying beer bottles onto our business property. To be sure, our right to freedom of choice may have been limited in some ways by bans on race discrimination, sex discrimination, religious discrimination, and the like. But whether right or wrong those bans still leave us mostly free to choose whom to do business with. The cab drivers thus want only the same kind of liberty that the rest of us generally have. Their argument isn’t a pure freedom of choice argument (which the law has rightly or wrongly denied to cabbies generally) but a freedom of choice argument coupled with a religious freedom argument; but that simply shows that this freedom of choice is even more important to them than it generally is to the rest of us. This doesn’t mean that they should win. Maybe there’s a really good reason for denying cabbies
Re: Cabbies vs. lawyers
That is, in my view, a misstatement of the facts. The person carrying the alcohol holds a religious worldview that permits them to drink, carry, and transport alcohol. The cabdriver refusing to transport them is making a religious judgment about the passenger. The only passengers you can be certain this cabdriver will always transport are those with the same religious worldview. Discounting the religious world view of the passenger leads to a one-sided analysis. Again, just as in the contraception context, the contemporary discourse generally has discounted the religious beliefs of the person who is affected by the accommodation. You aren't going to find many pairings of people in the US where both don't have some religious beliefs/world view. Religious claimants who want accommodation freight their arguments with claims of the religious vs. the secular, but that is a rhetorical ruse. In fact, a religious individual demanding an accommodation more often than not burdens someone who does not share their religious world view but who has a competing world view. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 They aren’t discriminating against anyone on the basis of that person’s religion. The cabbies’ own religious beliefs are leading them to discriminate against people who are openly carrying alcoholic beverages. I’m not sure I know of any religion that calls on its adherents to carry alcoholic beverages openly. Mark S. Scarberry Pepperdine Univ. School of Law Malibu, CA 90263 (310)506-4667 Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Scarberry, Mark mark.scarbe...@pepperdine.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Tue, Mar 6, 2012 8:40 pm Subject: RE: Cabbies vs. lawyers They aren’t discriminating against anyone on the basis of that person’s religion. The cabbies’ own religious beliefs are leading them to discriminate against people who are openly carrying alcoholic beverages. I’m not sure I know of any religion that calls on its adherents to carry alcoholic beverages openly. Mark S. Scarberry Pepperdine Univ. School of Law Malibu, CA 90263 (310)506-4667 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Tuesday, March 06, 2012 5:18 PM To: Law Religion issues for Law Academics Subject: Re: Cabbies vs. lawyers Are not the cabbies discriminating against customers on the basis of religion? Or is the alcohol proxy enough to remove that taint? Sent from my iPhone On Mar 6, 2012, at 7:38 PM, Volokh, Eugene vol...@law.ucla.edu wrote: In a sense this may be obvious, but it might be worth restating: One thing that is facing the cabbies is that for complex reasons cabbies are stripped of liberties that the rest of us take for granted. If we disapprove of alcohol – whether because we’re Muslim or Methodist, or because a close family member is an alcoholic or was injured by a drunk driver – we are free to refuse to fix the plumbing in a bar, to give legal advice to Coors, or to refuse to let people carrying beer bottles onto our business property. To be sure, our right to freedom of choice may have been limited in some ways by bans on race discrimination, sex discrimination, religious discrimination, and the like. But whether right or wrong those bans still leave us mostly free to choose whom to do business with. The cab drivers thus want only the same kind of liberty that the rest of us generally have. Their argument isn’t a pure freedom of choice argument (which the law has rightly or wrongly denied to cabbies generally) but a freedom of choice argument coupled with a religious freedom argument; but that simply shows that this freedom of choice is even more important to them than it generally is to the rest of us. This doesn’t mean that they should win. Maybe there’s a really good reason for denying cabbies, including religious objectors, this freedom of choice when it comes to transporting alcohol. But it does cast a different light on objections to people “choosing [clients] according to [the choosers’] religious belief,” or “demand[ing] a ‘right’ to exist in a culture that mirrors their views.” No-one makes such objections when we as lawyers pick and choose our clients; no-one faults us for choosing them according to our religious beliefs (unless those beliefs require race or sex discrimination or such); no-one says that lawyers who refuse to work for alcohol distributors demand a right to exist in a culture that mirrors our views. Likewise, I don’t think it’s fair to condemn cabbies
Re: Cabbies vs. lawyers
Doug-- This is actually hilarious. Reread my previous posts. You are not even in the ballpark, as attested to your notion that I was ever discussing religious judgments about nonbelievers. I'm almost certain that I was talking about believers and believers. I haven't backed off of whatever you think I said, because I never said it. In any event, this horse is officially beaten in my view. Marci I already said, in response to Sandy, that if a religious individual or group occupies a blocking position, the balance of interests changes. Whether they occupy such a position is a question of fact. You seem to assume axiomatically that they always prevent people from finding cab, or whatever other service we're talking about. But at least you seem to have backed off finding a problem with them making religious judgments about nonbelievers. Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: hamilton02 hamilto...@aol.com; dlaycock dlayc...@virginia.edu; religionlaw religionlaw@lists.ucla.edu Sent: Tue, Mar 6, 2012 9:38 pm Subject: Re: Cabbies vs. lawyers I already said, in response to Sandy, that if a religious individual or group occupies a blocking position, the balance of interests changes. Whether they occupy such a position is a question of fact. You seem to assume axiomatically that they always prevent people from finding cab, or whatever other service we're talking about. But at least you seem to have backed off finding a problem with them making religious judgments about nonbelievers. On Tue, 6 Mar 2012 21:35:11 -0500 (EST) hamilto...@aol.com wrote: Doug-- I don't know who the royal we is in your comment, but I'm not making a complaint. I'm making what is surely an obvious philosophical, analytical point. The person carrying the wine is not being picked up because they are carrying wine, which presumably is permitted in their religious world view. If you are going to accommodate the religious cabbie, you are going to burden the religious passenger with wine, assuming a finite number of cabbies. That is why a neutral, common carrier rule is preferable to the religion-specific exemption from service you seem to be advocating. I assume you favor the federal civil right that forbids a private employer from discriminating on the basis of religion? How is this any different? A cab is not a religious organization. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu; hamilton02 hamilto...@aol.com Sent: Tue, Mar 6, 2012 9:15 pm Subject: Re: Cabbies vs. lawyers I thought we were concerned about people getting home from he airport. Now the complaint is that the cabbie is making a religious judgment about the passenger. A religious judgment is a form of belief, and I thought it was common ground that belief is protected absolutely, as the Court said in Cantwell v. Connecticut. Lord knows we are all making judgments about the cabbies. Those of us who drink, or who have looser standards on any other issue than more morally scupulous adherents of various religions, certainly cannot have a right for those more scuprulous souls not to make judgments about us. On Tue, 6 Mar 2012 20:52:35 -0500 (EST) hamilto...@aol.com wrote: That is, in my view, a misstatement of the facts. The person carrying the alcohol holds a religious worldview that permits them to drink, carry, and transport alcohol. The cabdriver refusing to transport them is making a religious judgment about the passenger. The only passengers you can be certain this cabdriver will always transport are those with the same religious worldview. Discounting the religious world view of the passenger leads to a one-sided analysis. Again, just as in the contraception context, the contemporary discourse generally has discounted the religious beliefs of the person who is affected by the accommodation. You aren't going to find many pairings of people in the US where both don't have some religious beliefs/world view. Religious claimants who want accommodation freight their arguments with claims of the religious vs. the secular, but that is a rhetorical ruse. In fact, a religious individual demanding an accommodation more often than not burdens someone who does not share their religious world view but who has a competing world view. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003
Re: Cabbies vs. lawyers
I apologize if I was too quick to generalize. Maybe you meant that it is OK to make religious judgments about nonbelievers, but forbidden to make religious judgments about drinkers. An implicit distinction that I completely missed. On Tue, 6 Mar 2012 22:15:53 -0500 (EST) hamilto...@aol.com wrote: Doug-- This is actually hilarious. Reread my previous posts. You are not even in the ballpark, as attested to your notion that I was ever discussing religious judgments about nonbelievers. I'm almost certain that I was talking about believers and believers. I haven't backed off of whatever you think I said, because I never said it. In any event, this horse is officially beaten in my view. Marci I already said, in response to Sandy, that if a religious individual or group occupies a blocking position, the balance of interests changes. Whether they occupy such a position is a question of fact. You seem to assume axiomatically that they always prevent people from finding cab, or whatever other service we're talking about. But at least you seem to have backed off finding a problem with them making religious judgments about nonbelievers. Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: hamilton02 hamilto...@aol.com; dlaycock dlayc...@virginia.edu; religionlaw religionlaw@lists.ucla.edu Sent: Tue, Mar 6, 2012 9:38 pm Subject: Re: Cabbies vs. lawyers I already said, in response to Sandy, that if a religious individual or group occupies a blocking position, the balance of interests changes. Whether they occupy such a position is a question of fact. You seem to assume axiomatically that they always prevent people from finding cab, or whatever other service we're talking about. But at least you seem to have backed off finding a problem with them making religious judgments about nonbelievers. On Tue, 6 Mar 2012 21:35:11 -0500 (EST) hamilto...@aol.com wrote: Doug-- I don't know who the royal we is in your comment, but I'm not making a complaint. I'm making what is surely an obvious philosophical, analytical point. The person carrying the wine is not being picked up because they are carrying wine, which presumably is permitted in their religious world view. If you are going to accommodate the religious cabbie, you are going to burden the religious passenger with wine, assuming a finite number of cabbies. That is why a neutral, common carrier rule is preferable to the religion-specific exemption from service you seem to be advocating. I assume you favor the federal civil right that forbids a private employer from discriminating on the basis of religion? How is this any different? A cab is not a religious organization. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu; hamilton02 hamilto...@aol.com Sent: Tue, Mar 6, 2012 9:15 pm Subject: Re: Cabbies vs. lawyers I thought we were concerned about people getting home from he airport. Now the complaint is that the cabbie is making a religious judgment about the passenger. A religious judgment is a form of belief, and I thought it was common ground that belief is protected absolutely, as the Court said in Cantwell v. Connecticut. Lord knows we are all making judgments about the cabbies. Those of us who drink, or who have looser standards on any other issue than more morally scupulous adherents of various religions, certainly cannot have a right for those more scuprulous souls not to make judgments about us. On Tue, 6 Mar 2012 20:52:35 -0500 (EST) hamilto...@aol.com wrote: That is, in my view, a misstatement of the facts. The person carrying the alcohol holds a religious worldview that permits them to drink, carry, and transport alcohol. The cabdriver refusing to transport them is making a religious judgment about the passenger. The only passengers you can be certain this cabdriver will always transport are those with the same religious worldview. Discounting the religious world view of the passenger leads to a one-sided analysis. Again, just as in the contraception context, the contemporary discourse generally has discounted the religious beliefs of the person who is affected by the accommodation. You aren't going to find many pairings of people in the US where both don't have some religious beliefs/world view. Religious claimants who want accommodation freight their arguments with claims of the religious vs. the secular, but that is a rhetorical ruse. In fact, a religious individual
RE: Cabbies vs. lawyers
I don't think it is fair to the cabbies to say that they are discriminating on the basis of religion, or that the alcohol is a proxy by which they are trying to do so. If they said they wouldn't drive anyone wearing a priest's collar or a nun's habit, that would be discriminating on the basis of religion, and the item would be a fair proxy for religious discrimination. But it seems entirely more likely here that they are not discriminating at all based on the religious beliefs of their passengers--presumably they are willing to drive Christians, Jews, Muslims, atheists and anyone in between. Rather, their request is simply to not be forced to personally participate in an activity (the transporting of alcohol) which, for them, would be illicit. I don't think the fact that they consult their own religious beliefs in that decision can make their request into religious discrimination. Mark From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Steven Jamar [stevenja...@gmail.com] Sent: Tuesday, March 06, 2012 8:18 PM To: Law Religion issues for Law Academics Subject: Re: Cabbies vs. lawyers Are not the cabbies discriminating against customers on the basis of religion? Or is the alcohol proxy enough to remove that taint? Sent from my iPhone On Mar 6, 2012, at 7:38 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: In a sense this may be obvious, but it might be worth restating: One thing that is facing the cabbies is that for complex reasons cabbies are stripped of liberties that the rest of us take for granted. If we disapprove of alcohol – whether because we’re Muslim or Methodist, or because a close family member is an alcoholic or was injured by a drunk driver – we are free to refuse to fix the plumbing in a bar, to give legal advice to Coors, or to refuse to let people carrying beer bottles onto our business property. To be sure, our right to freedom of choice may have been limited in some ways by bans on race discrimination, sex discrimination, religious discrimination, and the like. But whether right or wrong those bans still leave us mostly free to choose whom to do business with. The cab drivers thus want only the same kind of liberty that the rest of us generally have. Their argument isn’t a pure freedom of choice argument (which the law has rightly or wrongly denied to cabbies generally) but a freedom of choice argument coupled with a religious freedom argument; but that simply shows that this freedom of choice is even more important to them than it generally is to the rest of us. This doesn’t mean that they should win. Maybe there’s a really good reason for denying cabbies, including religious objectors, this freedom of choice when it comes to transporting alcohol. But it does cast a different light on objections to people “choosing [clients] according to [the choosers’] religious belief,” or “demand[ing] a ‘right’ to exist in a culture that mirrors their views.” No-one makes such objections when we as lawyers pick and choose our clients; no-one faults us for choosing them according to our religious beliefs (unless those beliefs require race or sex discrimination or such); no-one says that lawyers who refuse to work for alcohol distributors demand a right to exist in a culture that mirrors our views. Likewise, I don’t think it’s fair to condemn cabbies for seeking, in this one area that is unusually important to them, the same freedom that lawyers have. Eugene From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Tuesday, March 06, 2012 2:59 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Requirement that cabbies transport alcohol = tiny burden? Why is anger at a publicly licensed cab picking and choosing passengers according to religious belief anything like anti-Muslim animus? Cabbies can't reject passengers on race. Why should they be able to reject those with religious beliefs different from their own? If they don't want to be in the company of nonbelievers, they should find another line of work. Also-- a number of imams announced the cabbies were misreading the Koran. There was no requirement they not transport others' cases of wine. No one was asking them to drink the wine We have crossed the line from legitimate claims to accommodation into the territory where religious believers demand a right to exist in a culture that mirrors their views.That is called Balkanization Marci ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http
Re: Cabbies vs. lawyers
Doug-- I don't know who the royal we is in your comment, but I'm not making a complaint. I'm making what is surely an obvious philosophical, analytical point. The person carrying the wine is not being picked up because they are carrying wine, which presumably is permitted in their religious world view. If you are going to accommodate the religious cabbie, you are going to burden the religious passenger with wine, assuming a finite number of cabbies. That is why a neutral, common carrier rule is preferable to the religion-specific exemption from service you seem to be advocating. I assume you favor the federal civil right that forbids a private employer from discriminating on the basis of religion? How is this any different? A cab is not a religious organization. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu; hamilton02 hamilto...@aol.com Sent: Tue, Mar 6, 2012 9:15 pm Subject: Re: Cabbies vs. lawyers I thought we were concerned about people getting home from he airport. Now the complaint is that the cabbie is making a religious judgment about the passenger. A religious judgment is a form of belief, and I thought it was common ground that belief is protected absolutely, as the Court said in Cantwell v. Connecticut. Lord knows we are all making judgments about the cabbies. Those of us who drink, or who have looser standards on any other issue than more morally scupulous adherents of various religions, certainly cannot have a right for those more scuprulous souls not to make judgments about us. On Tue, 6 Mar 2012 20:52:35 -0500 (EST) hamilto...@aol.com wrote: That is, in my view, a misstatement of the facts. The person carrying the alcohol holds a religious worldview that permits them to drink, carry, and transport alcohol. The cabdriver refusing to transport them is making a religious judgment about the passenger. The only passengers you can be certain this cabdriver will always transport are those with the same religious worldview. Discounting the religious world view of the passenger leads to a one-sided analysis. Again, just as in the contraception context, the contemporary discourse generally has discounted the religious beliefs of the person who is affected by the accommodation. You aren't going to find many pairings of people in the US where both don't have some religious beliefs/world view. Religious claimants who want accommodation freight their arguments with claims of the religious vs. the secular, but that is a rhetorical ruse. In fact, a religious individual demanding an accommodation more often than not burdens someone who does not share their religious world view but who has a competing world view. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 They aren’t discriminating against anyone on the basis of that person’s religion. The cabbies’ own religious beliefs are leading them to discriminate against people who are openly carrying alcoholic beverages. I’m not sure I know of any religion that calls on its adherents to carry alcoholic beverages openly. Mark S. Scarberry Pepperdine Univ. School of Law Malibu, CA 90263 (310)506-4667 Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Scarberry, Mark mark.scarbe...@pepperdine.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Tue, Mar 6, 2012 8:40 pm Subject: RE: Cabbies vs. lawyers They aren’t discriminating against anyone on the basis of that person’s religion. The cabbies’ own religious beliefs are leading them to discriminate against people who are openly carrying alcoholic beverages. I’m not sure I know of any religion that calls on its adherents to carry alcoholic beverages openly. Mark S. Scarberry Pepperdine Univ. School of Law Malibu, CA 90263 (310)506-4667 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Tuesday, March 06, 2012 5:18 PM To: Law Religion issues for Law Academics Subject: Re: Cabbies vs. lawyers Are not the cabbies discriminating against customers on the basis of religion? Or is the alcohol proxy enough to remove that taint? Sent from my iPhone On Mar 6, 2012, at 7:38 PM, Volokh, Eugene vol...@law.ucla.edu wrote: In a sense this may be obvious, but it might be worth restating: One thing that is facing the cabbies is that for complex reasons cabbies
