Requirement that cabbies transport alcohol = "tiny burden"?

Sisk, Gregory C. GCSISK at stthomas.edu
Tue Mar 6 13:48:48 PST 2012


As Eugene suggestions, the accommodation by use of lights for Muslim cabbies who objected to transporting visible liquor had every prospect of success.  Even airport officials agreed that it was an ingenious solution.  It would have been seamless and invisible, as the dispatcher would flag over a taxi without the light for those transporting liquor, so that the passenger would not be inconvenienced or even realize what had happened.  And this accommodation was abandoned, not because of any concrete showing that it caused any problems for passenger, but by the confession the airport commission's spokesman, because of a "public backlash" of emails and telephone calls.  The spokesman said that "the feedback we got, not only locally but really from around the country and around the world, was almost entirely negative.  People saw that as condoning discrimination against people who had alcohol."  And not only did the airport commission then revoke the accommodation, it began to treat the Muslim cabbies even more harshly.  Where previously the punishment for refusing a fare was to be sent to the end of the line (which was a financial hardship because the wait might be for additional hours), now the commission would suspend or revoke the cab license.  It is impossible, in my view, to understand the chain of circumstances as anything other than antipathy toward Muslims - and the tenor of the "public backlash" makes that even more obvious.

The Somali cab driver episode is described in the introduction to an empirical study that Michael Heise and I have currently submitted to law reviews, finding that, holding all other variables constant, Muslims seeking religious accommodation in the federal courts are only about half as successful as non-Muslims.  A draft of the piece is on SSRN at:  http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1917057

Greg

Gregory Sisk
Laghi Distinguished Chair in Law
University of St. Thomas School of Law (Minnesota)
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN  55403-2005
651-962-4923
gcsisk at stthomas.edu
http://personal.stthomas.edu/GCSISK/sisk.html<http://personal2.stthomas.edu/GCSISK/sisk.html>
Publications:  http://ssrn.com/author=44545

From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Tuesday, March 06, 2012 12:28 PM
To: Law & Religion issues for Law Academics
Subject: Requirement that cabbies transport alcohol = "tiny burden"?

                My sense is that the system would work better than Steve thinks, since I suspect that it would be rare that six cabbies in a row will have this objection.  It's true that, at least according to http://www.startribune.com/462/story/709262.html, most cabbies in Minneapolis are Somalis, and "many of them" are Muslims (by which the story likely means observant Muslims).  But my guess is that no more than a third or so will likely have this objection, and that most will take whatever fares they want.  This might be why the Minneapolis Metropolitan Airports Commission was indeed planning to institute a color-coded light scheme (see the story linked to above); it would be interesting to see if this was tried and what the results were.  I realize that it's speculation both ways, but, especially given that Minnesota courts take a Sherbert/Yoder view of the state religious freedom provision, I would think that the burden would be on the government to try something and show it fails.

                On the other hand, I'm not sure how one can get to the conclusion that this is a "tiny burden" on the cabbies.  Apparently the cabbies believe their religion bars them from transporting alcohol; that may seem unreasonable to us, but our judgment about reasonableness shouldn't matter for substantial burden purposes.  And if the claim is that the burden is "tiny" because they can just "get a different job," I just don't see how this can be so, especially given cases such as Sherbert:  For many unskilled immigrants, there are very well-paying jobs out there, especially in this economy.  Perhaps the burden might be justified, but how can we really say that it's "tiny"?

                Eugene

From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Tuesday, March 06, 2012 10:14 AM
To: Law & Religion issues for Law Academics
Subject: Re: Israeli Postal Workers Object to Delivering New Testaments

It is hard to set up such a system for cab drivers -- think of cabbies waiting at an airport where 6 in a row refuse passengers based on their possession of a bottle of wine.  It may be a longish wait or even a very long wait for the non-discriminating cabbie.  Or just hailing one on the street -- where would the sign be displayed?  When would the discussion take place?  How?
Tiny burden on those cabbies, it seems to me.  And if they can't abide by the rules, get a different job.
Public accommodations and public services just should not allow that sort of accommodation when the service is being denied to others -- it is burdening others based on difference of religion -- for the provision of a public service.

Many accommodations that might seem easy from the outside turn out not to be so easy.  Of course some accommodations are in fact quite easy and not as burdensome as some people (often employers) think they will be.

In practical areas one should not be quite confident in the ease of applying a seemingly "principled" disctinction.

Steve
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