Cabbies vs. lawyers

Douglas Laycock dlaycock at virginia.edu
Tue Mar 6 18:38:55 PST 2012


I already said, in response to Sandy, that if a religious individual or group occupies a blocking position, the balance of interests changes. Whether they occupy such a position is a question of fact. You seem to assume axiomatically that they always prevent people from finding cab, or whatever other service we're talking about.

But at least you seem to have backed off finding a problem with them making religious judgments about nonbelievers.

On Tue, 6 Mar 2012 21:35:11 -0500 (EST)
 hamilton02 at aol.com wrote:
>Doug--   I don't know who the royal "we" is in your comment, but I'm not making a "complaint."  I'm
>making what is surely an obvious philosophical, analytical point.  The person carrying the wine is
>not being picked up because they are carrying wine, which presumably is permitted in their religious
>world view.  If you are going to accommodate the religious cabbie, you are going to burden the religious
>passenger with wine, assuming a finite number of cabbies.  That is why a neutral, common carrier rule is
>preferable to the religion-specific exemption from service you seem to be advocating.  I assume you favor
>the federal civil right that forbids a private employer from discriminating on the basis of religion?  How is this
>any different?  A cab is not a religious organization.
>
>
>
>
>Marci
>
>
>
>
>
> 
>Marci A. Hamilton
>Paul R. Verkuil Chair in Public Law
>Benjamin N. Cardozo School of Law
>Yeshiva University
>55 Fifth Avenue
>New York, NY 10003
>(212) 790-0215
>hamilton02 at aol.com
>
>
>
>
>-----Original Message-----
>From: Douglas Laycock <dlaycock at virginia.edu>
>To: Law & Religion issues for Law Academics <religionlaw at lists.ucla.edu>; hamilton02 <hamilton02 at aol.com>
>Sent: Tue, Mar 6, 2012 9:15 pm
>Subject: Re: Cabbies vs. lawyers
>
>
>I thought we were concerned about people getting home from he airport. 
>
>Now the complaint is that the cabbie "is making a religious judgment about the 
>passenger."
>
>A "religious judgment" is a form of belief, and I thought it was common ground 
>that belief is protected absolutely, as the Court said in Cantwell v. 
>Connecticut. Lord knows we are all making judgments about the cabbies. 
>
>Those of us who drink, or who have looser standards on any other issue than more 
>morally scupulous adherents of various religions, certainly cannot have a right 
>for those more scuprulous souls not to make judgments about us. 
>
>On Tue, 6 Mar 2012 20:52:35 -0500 (EST)
> hamilton02 at aol.com wrote:
>>That is, in my view, a misstatement of the facts.  The person carrying the 
>alcohol holds a religious worldview that
>>permits them to drink, carry, and transport alcohol.  The cabdriver refusing to 
>transport them is making a religious judgment about the passenger.  The only 
>passengers you can be certain this cabdriver will always transport are those 
>with the same religious worldview.  Discounting the religious world view of the 
>passenger leads to a one-sided analysis.
>>
>>
>>Again, just as in the contraception context, the contemporary discourse 
>generally has discounted the religious beliefs of the
>>person who is affected by the accommodation.  You aren't going to find many 
>pairings of people in the US where both
>>don't have some religious beliefs/world view.  Religious claimants who want 
>accommodation freight their arguments
>>with claims of the "religious" vs. the "secular", but that is a rhetorical 
>ruse.  In fact, a religious individual demanding an accommodation more often 
>than not burdens someone who does not share their religious world view but who 
>has a competing
>>world view.   
>>
>>
>>Marci
>>
>>
>>
>>
>>Marci A. Hamilton
>>Paul R. Verkuil Chair in Public Law
>>Benjamin N. Cardozo School of Law
>>Yeshiva University
>>55 Fifth Avenue
>>New York, NY 10003     
>>
>>
>>
>>
>>
>>They aren’t discriminating against anyone on the basis of that person’s 
>religion. The cabbies’ own religious beliefs are leading them to discriminate 
>against people who are openly carrying alcoholic beverages. I’m not sure I know 
>of any religion that calls on its adherents to carry alcoholic beverages openly.
>> 
>>
>>Mark S. Scarberry
>>Pepperdine Univ. School of Law
>>Malibu, CA 90263
>>(310)506-4667
>>
>> 
>>
>>
>>
>>
>> 
>>Marci A. Hamilton
>>Paul R. Verkuil Chair in Public Law
>>Benjamin N. Cardozo School of Law
>>Yeshiva University
>>55 Fifth Avenue
>>New York, NY 10003
>>(212) 790-0215
>>hamilton02 at aol.com
>>
>>
>>
>>
>>-----Original Message-----
>>From: Scarberry, Mark <Mark.Scarberry at pepperdine.edu>
>>To: Law & Religion issues for Law Academics <religionlaw at lists.ucla.edu>
>>Sent: Tue, Mar 6, 2012 8:40 pm
>>Subject: RE: Cabbies vs. lawyers
>>
>>
>>
>>They aren’t discriminating against anyone on the basis of that person’s 
>religion. The cabbies’ own religious beliefs are leading them to discriminate 
>against people who are openly carrying alcoholic beverages. I’m not sure I know 
>of any religion that calls on its adherents to carry alcoholic beverages openly.
>> 
>>
>>Mark S. Scarberry
>>Pepperdine Univ. School of Law
>>Malibu, CA 90263
>>(310)506-4667
>>
>> 
>>
>>From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] 
>On Behalf Of Steven Jamar
>>Sent: Tuesday, March 06, 2012 5:18 PM
>>To: Law & Religion issues for Law Academics
>>Subject: Re: Cabbies vs. lawyers
>>
>> 
>>
>>Are not the cabbies discriminating against customers on the basis of religion? 
>Or is the alcohol proxy enough to remove that taint?
>>
>>Sent from my iPhone
>>
>>
>>On Mar 6, 2012, at 7:38 PM, "Volokh, Eugene" <VOLOKH at law.ucla.edu> wrote:
>>
>>
>>                In a sense this may be obvious, but it might be worth 
>restating:  One thing that is facing the cabbies is that for complex reasons 
>cabbies are stripped of liberties that the rest of us take for granted.  If we 
>disapprove of alcohol – whether because we’re Muslim or Methodist, or because a 
>close family member is an alcoholic or was injured by a drunk driver – we are 
>free to refuse to fix the plumbing in a bar, to give legal advice to Coors, or 
>to refuse to let people carrying beer bottles onto our business property.  To be 
>sure, our right to freedom of choice may have been limited in some ways by bans 
>on race discrimination, sex discrimination, religious discrimination, and the 
>like.  But whether right or wrong those bans still leave us mostly free to 
>choose whom to do business with.
>> 
>>                The cab drivers thus want only the same kind of liberty that 
>the rest of us generally have.  Their argument isn’t a pure freedom of choice 
>argument (which the law has rightly or wrongly denied to cabbies generally) but 
>a freedom of choice argument coupled with a religious freedom argument; but that 
>simply shows that this freedom of choice is even more important to them than it 
>generally is to the rest of us.
>> 
>>                This doesn’t mean that they should win.  Maybe there’s a really 
>good reason for denying cabbies, including religious objectors, this freedom of 
>choice when it comes to transporting alcohol.  But it does cast a different 
>light on objections to people “choosing [clients] according to [the choosers’] 
>religious belief,” or “demand[ing] a ‘right’ to exist in a culture that mirrors 
>their views.”  No-one makes such objections when we as lawyers pick and choose 
>our clients; no-one faults us for choosing them according to our religious 
>beliefs (unless those beliefs require race or sex discrimination or such); 
>no-one says that lawyers who refuse to work for alcohol distributors demand a 
>right to exist in a culture that mirrors our views.  Likewise, I don’t think 
>it’s fair to condemn cabbies for seeking, in this one area that is unusually 
>important to them, the same freedom that lawyers have.
>> 
>>                Eugene
>> 
>>
>> 
>>
>>From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] 
>On Behalf Of Marci Hamilton
>>Sent: Tuesday, March 06, 2012 2:59 PM
>>To: Law & Religion issues for Law Academics
>>Cc: Law & Religion issues for Law Academics
>>Subject: Re: Requirement that cabbies transport alcohol = "tiny burden"?
>>
>> 
>>
>>Why is anger at a publicly licensed cab picking and choosing passengers 
>according to religious belief anything like anti-Muslim animus?   Cabbies can't 
>reject passengers on race.   Why should they  be able to reject those with 
>religious beliefs different from their own?  If they don't want to be in the 
>company of nonbelievers, they should find another line of work.      
>>
>> 
>>
>>Also-- a number of imams announced the cabbies were misreading the Koran.  
>There was no requirement they not transport others' cases of wine.  No one was 
>asking them to drink the wine
>>
>> 
>>
>>We have crossed the line from legitimate claims to accommodation into the 
>territory where religious believers demand a "right" to exist in a culture that 
>mirrors their views.    That is called Balkanization
>>
>> 
>>
>>Marci
>>
>> 
>>
>> 
>>
>>
>>
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>>To post, send message to Religionlaw at lists.ucla.edu
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>
>>Anyone can subscribe to the list and read messages that are posted; people can 
>>read the Web archives; and list members can (rightly or wrongly) forward the 
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>
>Douglas Laycock
>Robert E. Scott Distinguished Professor of Law
>University of Virginia Law School
>580 Massie Road
>Charlottesville, VA  22903
>     434-243-8546
>
> 

Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA  22903
     434-243-8546


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