Discrimination against people with religious motivations for their actions
VOLOKH at law.ucla.edu
Wed Mar 7 15:52:38 PST 2012
I agree with the statement in the first paragraph that, if a cab driver is treated as a common carrier, then he might have to transport people who are carrying alcohol (unless he is entitled to a religious exemption under a Sherbert/Yoder-model state constitutional regime, or a state RFRA regime). And this is so regardless of whether he's discriminating based on a characteristic such as religion.
But the second paragraph goes on and says that a business owner who discriminates against a customer who is doing something that the owner thinks is religiously improper is engaging in "discrimination based on religion." The logic of that paragraph goes far beyond the common carrier situation (and indeed in the common carrier situation is irrelevant whether the common carrier is discriminating based on religion).
If the claim is that this discrimination based on the actor's religious beliefs is the sort of religious discrimination prohibited by public accommodation discrimination laws, that strikes me as mistaken. As I mentioned in my earlier post, a secular restaurant owner who refuses to deliver to an abortion provider because of the owner's secular opposition to abortion should be precisely on the same footing as a religious restaurant owner who refuses to deliver to an abortion provider because of the owner's religious opposition to abortion - neither is guilty of actionable religious discrimination. Likewise, a secular cab driver who refuses to transport people carrying alcohol because of the driver's secular opposition to alcohol should be precisely on the same footing as a religious cab driver who refuses to transport people carrying alcohol because of the driver's religious opposition to alcohol. Again, neither is guilty of actionable religious discrimination. Perhaps both are guilty of violating some common carrier obligation; but that's another story.
In either case, the suggestion that there's something illegally religiously discriminatory about a business owner's acting based on his own religious beliefs and conduct strikes me as mistaken - indeed, unconstitutional given Lukumi Babalu.
From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Wednesday, March 07, 2012 3:40 PM
To: Law & Religion issues for Law Academics
Subject: Re: Discrimination against people with religious motivations for their actions
Yes, Eugene, I think you are missing the essential point that common carriers are not the same as other employers and when it comes to choice as to serve or not serve, they are more limited in what they can and cannot do. They are bound by more than non-discrimination laws. Or that is how I always understood the law in this field, but I could be mistaken - I've not worked in it for over 2 decades now. So the baseline is different. It is not the same as for ordinary businesses.
I get the distinction you are trying so to make. And I agree that it is not the same as excluding someone because of a particular affiliation with a sect. But it still is discrimination based on religion whether it is based on the customer not conforming to the religious expectations and demands of the business or the business excluding because of a status of the customer -- in both instances it is because of the religious beliefs and conduct of the business, not the customer.
I am troubled by the blame-the-customer attitude evinced in the solicitude for the person engaged in provision of a public service such as common carriers and public transportation.
As I have written some time ago now, I think we should indeed recognize the religious needs or constraints or beliefs of the employer -- but one should also recognize and support the interests of the others.
If a system can be worked out with minimal harm to all involved, that is best. But I would favor the weaker party to the stronger -- in this situation the one needing the cab is decidedly in the weaker position.
On Mar 7, 2012, at 3:07 PM, Volokh, Eugene wrote:
I think the analysis below is mistaken: Whether or not cabbies' refusal to carry alcohol should be barred by some general common-carriage requirement, it shouldn't be treated as religious discrimination. What's more, I think the argument that such a refusal is religious discrimination itself calls for discrimination against those with religious motivations for their actions.
1. To begin with, as others have pointed out, the cabbies' actions affected Christians, Jews, Muslims, the irreligious, and anyone else who carried alcohol. Moreover, they didn't affect Christian, Jews, Muslims, the irreligious, and anyone else who didn't carry alcohol.
2. Now I take it that the response is that the really devout Muslims of the same religious views as the cabbies generally wouldn't be affected (just as, I suppose, Mormons or Methodists wouldn't be affected), because they generally wouldn't carry alcohol. But that analysis strikes me as unsound, and here's why.
Imagine a case closely modeled on Rasmussen v. Glass (Minn. Ct. App. 1993) (review granted but appeal later dismissed), http://scholar.google.com/scholar_case?case=648897692635049631. A restaurant owner refuses to deliver food to a doctor who performs abortions, because the owner believes abortions are evil, and doesn't want to provide any help, even indirect, to such evil. And say the restaurant owner's is irreligious, and his opposition to abortion is based on his own personal moral views (e.g., he follows Nat Hentoff,http://groups.csail.mit.edu/mac/users/rauch/nvp/consistent/indivisible.html). I take it that we would all agree that the restaurant owner is not discriminating based on religion. To be sure, devout Catholics, and devout members of other anti-abortion religious groups, wouldn't perform abortions. But that doesn't mean the restaurant owner is discriminating based on the would-be customers' religions - he's discriminating based on their secular actions.
Now say that another restaurant owner acts precisely the same way, but his opposition to abortion is based on his religious views. As I understand the argument below, he would be seen as discriminating based on religion, because the performing of abortion is "a badge of a religion different from yours." And thus he would be presumptively required to deliver to the doctor's office, if state public accommodations law covers discrimination based on religion in restaurant delivery. But this would mean that the law itself has become religiously discriminatory: The secular anti-abortion restaurant owner is free to do something (here, refusing to deliver to an abortion provider), but the religious anti-abortion restaurant owner is barred from doing precisely the same thing.
3. I think the same applies to the alcohol example. A secular cab driver who opposes alcohol on secular grounds would presumably not be treated as discriminating based on religion. But to treat the religious cab driver who opposes alcohol on religious grounds would be treated as discriminating based on religion, and would thus be potentially violating relevant public accommodations bans. Yet such an approach would itself impermissibly discriminate (in violation of Lukumi Babalu) against the religious cab driver based on the religiosity of his motivation for his conduct. Or am I missing something here?
From: religionlaw-bounces at lists.ucla.edu<mailto:religionlaw-bounces at lists.ucla.edu> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Wednesday, March 07, 2012 7:10 AM
To: Law & Religion issues for Law Academics
Subject: Re: Cabbies vs. lawyers
Of course it is a proxy -- just like a collar or burka or yarmulke -- a badge of a religion different from yours -- only in this case it is alcohol possession -- a badge of a religion different from yours. The dodge of "oh, I'm not against their religion, just against their conduct" can't be allowed can it? The person transporting the alcohol is the passenger, not the cab driver. The fact of hidden vs. open possession of the bottle of wine gives it away, doesn't it -- it is not about the action, it is about the religious nature of the action -- the violation of the religious beliefs of the driver by the religious beliefs (ok to have and transport alcohol) by the passenger.
It is action based on a difference of religious belief. That is discrimination no matter how one twists it.
Maybe we should allow this discrimination, just like maybe we should allow discrimination in allowing landlords to discriminate against gays based on the landlord's religious beliefs, but that is still religious-based discrimination.
You can't suddenly say that motivation doesn't matter just because the motivation is their own religious beliefs.
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Prof. Steven D. Jamar vox: 202-806-8017
Associate Director, Institute for Intellectual Property and Social Justice http://iipsj.org
Howard University School of Law fax: 202-806-8567
"Our scientific power has outrun our spiritual power. We have guided missiles and misguided man."
- Martin Luther King Jr., "Strength to Love", 1963
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