Antidiscrimination law and bookstores

[Michael MASINTER]

Professsor McConnell offers a thoughtful proposal for interpreting the
BFOQ defense for relgious discrimination.  Conventional free exercise
doctrine has always permitted an inquiry into whether a religious belief
is sincerely held, but I wonder about the inquiry into whether the belief
is reasonable.  How does a court assess the reasonableness of a sincerely
held religious belief without making distinctions among religions that are
antithetical to the first amendment?  What standards would govern the
inquiry into reasonableness, a term which, as frequently used by courts,
would seem to have deep roots in the epistemology of the enlightenment
rather than the epistemology of revelation?

My sense is that courts have interpreted the BFOQ defense more
restrictively because sincerity of belief alone would too easily trump the
prohibition against discrimination, and reasonableness of belief is beyond
judicial competence.

Michael R. Masinter                     3305 College Avenue
Nova Southeastern University            Fort Lauderdale, Fl. 33314
Shepard Broad Law Center                (954) 262-6151
masinter at nova.edu                       Chair, ACLU of Florida Legal Panel

On Tue, 19 Dec 2000, Michael McConnell wrote:

> It seems to me that the BFOQ provision, as it applies to religious
> discrimination, ought to be interpreted in light of First Amendment
> principles of free exercise, free speech, and freedom of association, along
> the following lines: "Employers may extend a religious preference in hiring
> to adherents of a particular religious faith if the employer has a sincere
> and reasonable belief that his or her own religious practice, that of
> his/her other employees or clientele, or the religious value of the goods or
> services provided, would be substantially affected by the character of the
> religious belief or denomination of the employee; provided, however, that
> this shall not be interpreted as authorizing discrimination based on
> hostility or animus toward adherents of other religious faiths."
>
> Michael McConnell
> University of Utah College of Law
> 332 South 1400 East Rm. 101
> Salt Lake City, UT 84112
>