Choice (Was: Feds Sue A & F)
mallapollack3 at gmail.com
Fri Sep 3 13:20:32 PDT 2010
I agree with John. The closeness of something to one's core identity (as
one sees oneself) seems more important to me than 'how' the element was
first presented to the world. "Core" does not necessarily correlate with
Choice may (or may not) be made after deep consideration. Also one my
later invest meaning in something lightly chosen. On the other hand,
something which which one is born may by changeable -- like hair color -- or
simply not important (to oneself or to observers).
On Fri, Sep 3, 2010 at 3:10 PM, John Bickers <bickersj1 at nku.edu> wrote:
> Prof. Laycock has introduced an interesting twist into the discussion,
> and I wonder what people think about this matter.
> When we discuss layers of scrutiny, my students are always drawn to a
> choice-birth dichotomy, as if choices are unworthy of protection but
> accidents of birth merit it. I point out to them that the Court doesn't see
> it this way. There are things that are up to an individual (I use religion,
> but Prof. Laycock has me wondering if I am right) which get strict
> scrutiny protection. There are also things beyond one's control that only
> get rational basis scrutiny. Age, for example--I would very much like the
> knees of my youth back, but I don't seem able to choose my age.
> Of course, the entry point to this discussion--which I never start--is
> always sexual orientation. I try to persuade my students that the
> birth-choice question is irrelevant for equal protection analysis. Does
> anyone else have a similar experience? Am I off base in thinking that, when
> it comes to deciding what scrutiny goes with what classifications, choice is
> a red herring?
> John Bickers
> Salmon P. Chase College of Law
> *From:* conlawprof-bounces at lists.ucla.edu on behalf of Douglas Laycock
> *Sent:* Fri 9/3/2010 1:22 PM
> *To:* conlawprof at lists.ucla.edu
> *Subject:* Feds Sue A & F over refusal to allow Muslim headscarvesin
> One point of the religious accommodation provision of Title VII may be
> that employers cannot have a business model that depends on excluding
> visible religious minorities from their workplace, just as they cannot have
> a business model that depends on excluding visible racial minorities from
> the workplace. This was a live issue in the South in the early years of
> Title VII, when customer preference was rejected as a defense.
> I understand that skin color is unchangeable due to the laws of chemistry
> and physics, and that religious practice sometimes changes and from the
> outside can appear as a choice. But for many believers it is unchangeable in
> fact because of deep religious commitment or sense of divine obligation. And
> the point of including religious practice in Title VII is that believers
> ought not have to change their religious practice, and ought not be excluded
> from a job because of it without strong cause.
> Douglas Laycock
> Armistead M. Dobie Professor of Law
> University of Virginia Law School
> 580 Massie Road
> Charlottesville, VA 22903
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