FW: 75% of Minneapolis airport taxis refuse customerswithalcohol

[Paul Finkelman]

we should not force someone to take a job if they must break religious
beliefs, that is too coercive; but surely we cannot run a society if
people who have an obligation to do a job (pick up fares) refuse to do
that job. COnsider this. What if all 75% of the Muslim cabbies took this
position, and then, over time, 95% of the cabbies were Muslims who would
not pick up certain fares?  And if 25% of all flight attendants are
Muslim and refuse to serve drinks on planes, do we "color code" our
planes; or our amtrack trains?  Can the conductor on the train refuse to
sell a ticket to the passenger who is legally drinking on the train?

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

518-445-3386 
pfink at albanylaw.edu
>>> VOLOKH at law.ucla.edu 09/29/06 5:37 PM >>>
    Sandy:  I still wonder why this isn't just assuming the conclusion.
One could equally well say that unemployment beneficiaries must take any
job for 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
rules to come up with an exception that accommodates the licensee's
religious beliefs, while at the same time avoiding inconvenience to the
public.  It's hard to come up with such an accommodation for the postal
worker, but not 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 not 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 --
including 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 mentioned, the Minnesota Supreme Court has accepted the
Sherbert/Yoder approach to the 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 a
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 why should it be no scrutiny, "government wins, end of story"?
 
    Eugene


________________________________

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

	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 it 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 granted 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 disagreed.
	
	Sandy
	- Sanford Levinson
	(Sent from a Blackberry)