Kosher wine and antidiscrimination law

[Volokh, Eugene]

        I think Robin has indeed identified the heart of our disagreement:
I do not think that the government can distinguish members of group X
requiring wine or food being prepared by members of group X from members of
group Y requiring that their hair be cut or their goods be sold to them by
members of group Y.

        The post below identifies two possible distinctions:

        1.  Age of the belief ("In one case, the religion has required such
an approach for centuries.").  To my knowledge, the Court has never
sanctioned any such distinction between longstanding religions and more
novel religions, and I don't think such a distinction can be constitutional.
Judaism, Christianity, Islam, Mormonism, Christian Science, Scientology, the
Nation of Islam, and Thomas's idiosyncratic or Frazee's nondenomination
belief systems may be of different ages, but they must be seen by the law as
being of equal dignity.  So long as the religious belief is sincerely felt,
it must be treated equally without regard to the age of the tradition to
which it belongs.

        2.  Reasonableness of the belief.  This, it seems to me, is an
inquiry that's quintessentially forbidden by the First Amendment, in cases
from Ballard on down.  "Religious beliefs need not be acceptable, logical,
consistent, or comprehensible to others in order to merit First Amendment
protection."  Thomas v. Employment Division, 450 U.S. 707, 714 (1981).
There's nothing "reasonable" about wanting to have one's wine be made by
Jews, or wanting priests to be male, or wanting one's barber to be of a
particular religion or gender, or not eating rabbit or lobster for religious
reasons -- nor is there anything "unreasonable" about it.  Can people's
right to act this way (or lack of right to act this way) really turn on
secular courts' judgments about which of these beliefs are "reasonable"?
Again, I agree that the law draws distinctions between "reasonable" and
"unreasonable" customer preferences in a variety of contexts, such as the
standard BFOQ rules -- I just don't see how it can, consistently with its
First Amendment jurisprudence, draw a distinction between "reasonable" and
"unreasonable" religious beliefs.

        Am I missing something here?  Is there indeed some way that a court
can distinguish the views
        "I feel a religious obligation to only drink wine made by fellow
Jews,"
        "I feel a religious obligation to only have my hair cut by fellow
Xs," and
        "I feel a religious obligation to only have my hair cut by fellow
males"?


Robin Charlow writes:

> Ultimately, I think it's only your last point on which we differ, and I'm
> not even sure we differ because I'm not sure I understand the point.  I
> think we can distinguish--at least as a factual matter--between members of
> a religious group requiring wine that they use in religious rituals or
> food that they eat to be prepared in the way the religion has required for
> centuries, and the same individuals deciding they'd rather have
> coreligionists cut their hair, sell them goods, or the like, just as we
> distinguish between preferring sexy airline stewardesses and operating a
> topless bar.  Not all such distinctions are perfectly defensible, but they
> don't appear to be of a different order in this context than in others.
> Why do you believe the First Amendment precludes any consideration of the
> "reasonableness" of one's professed necessity to have a coreligionist
> perform certain tasks?
>
>
>
>
> Robin Charlow
> Hofstra University School of Law
> Hempstead, New York  11549
> email: lawrdc at hofstra.edu
> phone (516) 463-5166
>
> >>> VOLOKH at mail.law.ucla.edu 12/18/00 02:25PM >>>
>         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.
> >
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