BFOQ and Bookstores

[Paul Finkelman]

If I follow Mr. Schutt correctly, he would argue that businesses ought to be
allowed to discriminate in hiring on the basis of religion; and that if the
owner has a desire to only hire members of X-Church, that is ok?  And that we
should led the free market decide whether it is ok to discriminate in hiring?

And that if an employee has a change in his/her views of which church to attend
then it is permissible to fire that employee?

And that furthermore, this can apply to "our clients" as well, so that only
Christians can eat at Restaurant X, and only the "right kind of Christians" can
eat at restaurant Y?

And that in general is is ok to discriminate because "freedom of association"
allows it?

I am just trying to understand his position.

An alternative position, which does not lead to "sucking religion dry"  is the
idea that we are all free to behave as we wish, and to live our lives by our own
faith and texts, and run our businesses and public affairs accordingly, but that
we cannot compel our employees to believe as we do, we cannot refuse service to
people who believe in other faiths, and we cannot deny jobs to people because of
their religious faith.  Am I correcting in understanding that Mr. Schutt rejects
all of these principles?  Or am I misunderstanding him?

--
Paul Finkelman
Chapman Distinguished Professor
University of Tulsa College of Law
3120 East 4th Place
Tulsa, Oklahoma  74104-2499

918-631-3706 (office)
918-631-2194 (fax)

paul-finkelman at utulsa.edu



Michael P Schutt wrote:

> I think Professor Finkelman has it exactly backwards.  The reason for this
> may be because he views jumping into volcanoes and running bookstores or
> gyms as different in kind in terms of religious service. When we demand that
> people compartmentalize their lives so that one activity is labeled "service
> to God" and another activity is labeled "not service to God" based upon some
> judge or law professor's rule of thumb, we are sucking religion dry of its
> essence.  If it can only be exercised in private, or on Saturdays, or in a
> particular place, or in a particular way, then we restrict it. If religion
> isn't about how we hire, who we hire, and how we desire to serve our clients
> (in other words, about the reality of daily life), then it's worthless.  And
> this is where Prof Finkelman has it backwards:  "Ghettoization" happens when
> government, and not real people, make decisions about religion.
> "Ghettoization" is far more likely to take place under Professor Finkelman's
> approach than Professor Jamar's or Professor Duncan's.
>
> I suppose that I have more faith in free markets, personal liberty,
> religion, and an enlightened moral populace to help diminish discrimination
> and abuses of personal freedom.  And I am willing to tolerate the abuses and
> discrimination that will certainly occur. We have to tolerate those abuses
> because we need liberty, freedom of religion, freedom of association, and
> freedom of contract to avoid becoming Bosnia . . . or Cuba.
>
> Paul Finkelman wrote:
>
> > Furthermore, the public policy issues here are really important.
> > If we allow the "Witnessing Gym" then pretty soon everyone in the
> > country will be employed by a co-religionist, shop at a store
> > owned by a co-religionist (or non-religionist) and I suppose have
> > restrictive convenants (no Jews allowed -- and we have been
> > there, done that).  Such a policy will lead us straight to Bosnia
> > and Serbia, to Ghettoization on the basis of religion, and public
> > support for bigotry.
>
> and yesterday:
>
> >I would argue that a sincerely held religious belief ought to allow fully
> consenting adults to have control over their own bodies so >that in fact if
> Adult A, for religious purposes, wants to jump into a volcano to appease the
> Gods, Adults B & C can Help A do it, >even help throw A in, if that is what
> it takes.  Who are we to say how adults should worship God, as long as it
> involves consenting, >sane, adults and does not harm others.  But, after
> going that,  B & C still have to hire someone of a different faith to sell
> books at >their bookstore.  And that might include selling rocks from
> hardened lava as well.  I take this position quite seriously, on the theory
> >that free exercise means just that, as long as no one else is harmed.