FW: 75% of Minneapolis airport taxis refuse customerswithalco hol

Paul Finkelman pfink at albanylaw.edu
Fri Sep 29 20:44:52 PDT 2006

Again, the employement compesation is different; this is about a duty of
common carriers to accept all people.  Moreover, it opens too many other
exceptions -- pagan symbols, race mixing (Bob Jones Cab Co. won't pick
up mixed race couples); I think we all think of many examples of how
very religious people can find a religious reason for not picking up
someone; can a muslim tow truck driver refuse to tow the broken Miller
Beer Truck?  Can the Muslim bus driver close the door on the overtly
pagan kids trying to get on the bus; can Muslim Cabbies (or Evangelical
Christians) refuse to carry Wickens?  Where, I would ask, would Greg or
Eugene draw the line -- on common carries and places of public
accommodations? The Muslim grocer can close on Friday and refuse to
carry beer; but he cannot refuse to sell to someone who bought beer next
store and is legally carrying a six pack (closed of course) as he tried
to by chips and salsa in the Muslim store.  By the way, if they meet
other criteria, would favor unemployment compensation for Muslin cabbies
who quit because they cannot obey the law which requires them to take
all passengers.

Paul FInkelman

Paul Finkelman
President William McKinley Distinguished Professor of Law
     and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

pfink at albanylaw.edu
>>> GCSISK at stthomas.edu 09/29/06 6:45 PM >>>
It seems to me that the right question is whether the religious
accommodation may be made in a manner that does not cause an
burden to others.  Whether or not such an accommodation is compelled, in
post-Employment Division v. Smith period, it surely is not prohibited.


Being here in Minneapolis as I am, I can report that this story has
significant play in the press.  And, interestingly, this appears to be a
case in which all the parties concerned are behaving with courtesy and
respect in an attempt to find the right balance and live together in a
community without being forced to surrender faith.  The Muslim cab
agree that they would not inquire as to what a person is carrying - the
Koran does not impose such a duty of inquiry - so any alcohol included
baggage would not be known to or covered by the their refusal to accept
carriage of alcohol.  The concern is for visible carrying of alcohol
(although not just in open containers, as Paul Finkelman correctly
The Muslim cab drivers further have agreed that they would place a
colored light on their cabs, so that the attendants for the cab waiting
at the airport would simply direct the next passenger in line who is
carrying alcohol to the next cab in line that does not have the
light.  In most cases, this would occur so unobtrusively that the
wouldn't even know what has just occurred.  In this way, every passenger
still will receive cab service in the order in which he or she appears
the cab waiting line, while the Muslim cab drivers may face a temporary
for the next passenger without alcohol, a minor burden placed on and
accepted by the Muslim community in exchange for accommodation of their
deeply-held beliefs.  Please keep in mind as well that this is
Minneapolis-St. Paul - not New York or Washington, D.C. - so that most
passengers arriving at the airport are not taking cabs and thus
accommodation for the relatively few passengers who do take cabs is made
the easier.


Eugene's point of comparison with unemployment beneficaries is quite
apt, in
light of recent events in Germany.  As he says, drawing the comparison
the Muslim cab drivers, "One could equally well say that unemployment
beneficiaries must take any job for which they're qualified, end of
having been granted unemployment compensation on those terms."  A case
recently arose in Germany in which a young woman, a person of faith as I
recall, who received unemployment compensation was told that her
would be terminated because she had refused to accept a job as a
that had been posted at the unemployment office, prostitution being a
form of business in Germany.  While that ruling was overturned once
attention was drawn to it, it certainly confirms the serious danger to
personal faith and values that may be posed by requiring a person to
into line simply by receipt of a public benefit.


Greg Sisk


Gregory Sisk

Professor of Law

University of St. Thomas School of Law (Minnesota)

MSL 400, 1000 LaSalle Avenue

Minneapolis, MN  55403-2005


gcsisk at stthomas.edu



From: Volokh, Eugene [mailto:VOLOKH at law.ucla.edu] 
Sent: Friday, September 29, 2006 4:37 PM
To: Law & Religion issues for Law Academics
Subject: RE: FW: 75% of Minneapolis airport taxis refuse


    Sandy:  I still wonder why this isn't just assuming the conclusion. 
could equally well say that unemployment beneficiaries must take any job
which they're qualified, end of story, having been granted unemployment
compensation on those terms.  Or one could say that a restaurant given a
valuable liquor license must open seven days a week, end of story,
notwithstanding the fact that its owner feels a religious obligation to
close Saturdays or Sundays.


    The question here is whether it's proper for those who define the
to come up with an exception that accommodates the licensee's religious
beliefs, while at the same time avoiding inconvenience to the public. 
hard to come up with such an accommodation for the postal worker, but
that hard, I think, for the cab drivers (the color-coding being a pretty
good idea).  If the airport is willing to accommodate the drivers, why
let it do that?


    There is also, of course, the question whether such an accommodation
should be constitutionally required.  I think it shouldn't be, because I
generally agree with Smith.  But if one accepts Sherbert/Yoder --
as to Sherbert herself, who is being granted a valuable public benefit
then why wouldn't the cab drivers have a very strong case?  (As I
the Minnesota Supreme Court has accepted the Sherbert/Yoder approach to
Minnesota Constitution's religious freedom provision.)  Perhaps the rule
should be something less than strict scrutiny when it comes to
conditions of
government benefits (cf.
<http://www.law.ucla.edu/volokh/intermed.htm#GovernmentasEmployer>  for
discussion of this issue as to the government as employer), though I
take it
that this would mean less than strict scrutiny in Sherbert, too.  But
should it be no scrutiny, "government wins, end of story"?





From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Sanford
Sent: Friday, September 29, 2006 2:29 PM
To: religionlaw at lists.ucla.edu
Subject: Re: FW: 75% of Minneapolis airport taxis refuse

I confess I'm with Paul on this one.  As someone who has often taught
professional responsibility, I've defended the "cab rank" rule.  To put
mildly, it is disconcerting to be told that the "cab rank rule" doesn't
apply to cabs!  They are common carriers, end of story, having been
a valuable public license.  If they want to exercise that kind of
discretion, let them open a livery company.  We've earlier discussed, on
more than one occasion, whether a postal worker MUST deliver personally
offensive magazines.  The answer is yes, and I don't recall that Eugene

- Sanford Levinson
(Sent from a Blackberry) 

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