Discrimination against people with religious motivations for their actions

Marci Hamilton hamilton02 at aol.com
Wed Mar 7 16:17:50 PST 2012


Eugene--I'm going to focus on the third, relevant issue.   The restaurant examples are not analogous because one can do the act and the other cannot do it.   In the cabbie situation neither can

 The cabbie who refuses to carry alcohol for secular reasons loses his job because he is refusing to do his job.  The cabbie who refuses for religious reasons is subject to the same rule.   The only question is whether there should be an exemption.   Under Smith and Hershberger even, I think the religious cabbie loses.  So then it is just a matter of public policy.    I will leave that to the lawmakers

I would add that Hershberger was decided at the height of the misleading doctrinal hysteria over Smith.  It is unfortunate that the state Courts were persuaded to make either/or decisions about free exercise in that context   They like Congress were given a false choice    

You have to give her credit--  Justice OConnor conceded that there were definite arenas where SS had not applied  

Since then, there has been a lot more public education about the actual impact of SS on the vulnerable and affected.   That is why the state rfras slowed down considerably and the W Va version is going nowhere.   

I apologize for going so far off topic


Marci





On Mar 7, 2012, at 6:55 PM, "Volokh, Eugene" <VOLOKH at law.ucla.edu> wrote:

>                 So let me make sure I understand your view correctly:
>  
>                 1.  A secular restaurant owner who refuses to deliver to an abortion provider for secular reasons is not guilty of religious discrimination in violation of public accommodations laws.  (Assume such laws generally apply to discrimination based on religion in restaurant deliveries.)
>  
>                 2.  A religious restaurant owner who refuses to deliver to an abortion provider for religious reasons is indeed guilty of religious discrimination in violation of public accommodations laws.  (Assume such laws generally apply to discrimination based on religion in restaurant deliveries.)
>  
>                 Is that so?  And, if so, doesn’t that make the law itself into an unconstitutional religious discrimination, given that it treats precisely the same conduct differently based on the religious motivation of the actor, in violation of the Lukumi Babalu principle?
>  
>                 Eugene
>  
> From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Marci Hamilton
> Sent: Wednesday, March 07, 2012 3:39 PM
> To: Law & Religion issues for Law Academics
> Cc: Law & Religion issues for Law Academics
> Subject: Re: Discrimination against people with religious motivations for their actions
>  
> I have to say that I find Steve's analysis more sound and based on common sense.   
>  
>  
> Marci
> 
> On Mar 7, 2012, at 3:07 PM, "Volokh, Eugene" <VOLOKH at law.ucla.edu> 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?
>  
> Eugene
>  
> From: 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.
>  
> Steve
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