Kosher wine and antidiscrimination law

[Volokh, Eugene]

        I wonder whether it really makes sense to distinguish an "objective
notion of the essence of the activity" from "the customer's preferences or
views" in such a situation -- I think they are more than just related in
these contexts; I think they end up being almost identical.

        Why do we think that "the essence of kosher winemaking" is "making
kosher wine," which is to say making wine with the participation of a Jew?
Because a certain class of customers of wine insist on the wine being made
this way.  If no customers had this (religiously driven) preference, there'd
be no "kosher winemaking," and no need for the discrimination.

        Given this, I don't quite see how one could distinguish the
situation where members of a certain religious group insist that their hair
be cut only by members of their own group, or members of their own gender.
To the rest of us, the essence of barbering is just cutting hair, just as
the essence of winemaking is just making wine.  But to that group, the
essence of the particular hairdresser is cutting hair in accordance to the
command of their religion (which may be that hair can only be cut by a
coreligionist or by a member of the same sex).

        It seems to me impossible to distinguish customers' felt religious
obligation to have hair cut by fellow members of group X from customers'
felt religious obligation to drink wine made by fellow members of group X.
What am I missing here?

        Incidentally, I agree that in normal BFOQ law (at least as to sex),
we do draw lines between customer preferences that we will accept as
reasonable and those that we refuse to accept.  (I discuss this at some
length in http://www.law.ucla.edu/faculty/volokh/ccri.htm#IIA3b .)  The
trouble is that here such a judgment of what's a "reasonable" religiously
based customer preference and what's not seems to be foreclosed by the First
Amendment.


Robin Charlow writes:

>       Marty can correct me if I'm wrong, but I don't think he was saying
> this either.  I thought he was saying that a BFOQ is based on an objective
> notion of the essence of the activity in question, not on either the
> employer's or the customer's preferences or views (although the latter is
> possibly sometimes related to an objective assessment of the essence of
> the activity).  Having dealt with the issue in the sex discrimination
> area, it seems to me a BFOQ would not apply to allow for discrimination in
> most/all of the instances you describe below (eg, preference for one's own
> group members cutting one's hair or selling one goods, or possibly even
> touching one's body, as in the case of health care aides).  The essence of
> barbering is to cut one's hair, the essence of a retail store is to sell
> goods, and the essence of a health care aide's job is to provide
> assistance with one's health care needs.  The question, then, is whether
> the essence of kosher winemaking is making wine or making kosher wine.  I
> believe it is the latter, not the former (though this is debatable, I
> suppose, and some of your post suggests you think otherwise), so the BFOQ
> would apply.
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/cgi-bin/mailman/private/religionlaw/attachments/20001218/4290f62f/attachment.htm