BFOQ and Bookstores

[Paul Finkelman]

ok; and where do you draw the line?  Can members of the "white people's church"
refuse to serve blacks at their restaurants?

Why do you think "gehttozation" will take place if people are *prohibited* from
discriminating on the basis of religion, race, and ethnicity?  I do not, I
repeat for the third or fourth time, DO NOT treat as unimportant sincere
religious practice in running a business.  I know many people who do just that.
The point is, that you can be sincerely religious and at the same time NOT
practice discrimination.

I would throw back the questions to Mr. Schutt: Why do yo treat as unimportant
the idea that we should not allow people to discriminate in hiring, firing, and
service?  Why do in effect, defend bigotry in hiring?  Why do you presume that
no one but a member of the "right church" can possibly do a job, such as
recommending books to buy, or shelving them?  Why do you assume that only the
member of the right church can wait on tables correctly?

This is only so if the employeer refuses to accept people other than those in
the employers group. Hence, the employer practices discrimination.  This has
always led to ghettoization.


--
Paul Finkelman
Chapman Distinguished Professor
University of Tulsa College of Law
3120 East Fourth Place
Tulsa, OK  74104

918-631-3706
Fax 918-631-2194

E-mail:  paul-finkelman at utulsa.edu



Michael P Schutt wrote:

> Actually, I wasn't suggesting a first amendment approach. I was merely
> commenting that the Finkelman approach 1) treats as unimportant the reality
> of sincere religious practice in running a business; and 2) attributes to
> Steve Jamar's approach a result ("ghettoization") that will be far more
> likely under the Finkelman approach.  In short, I was taking the position
> that reality (what religion actually 'is') and public policy are addressed
> more satisfactorily by the Jamar "flexible" approach and in the Duncan
> approach.
>
> But I could much more easily live with the position you outline below, than
> an approach that arrives at a rule by having a bunch of law professors with
> nothing better to do over the holidays, and who know absolutely nothing
> about Islamic bookstores, decide for the Islamic owner whom he or she should
> hire, based on upon what the professors "think" is "necessary" for the
> business of Islamic bookselling.
>
> Mike Schutt
>
> > -----Original Message-----
> > From: Law & Religion issues for Law Academics
> > [mailto:RELIGIONLAW at listserv.ucla.edu]On Behalf Of Paul Finkelman
> > Sent: Wednesday, December 20, 2000 1:47 PM
> > To: RELIGIONLAW at listserv.ucla.edu
> > Subject: Re: BFOQ and Bookstores
> >
> >
> > 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.
> >