Discrimination against people with religious motivations for their actions

Volokh, Eugene VOLOKH at law.ucla.edu
Sat Mar 10 14:29:15 PST 2012


                I would think that narrow tailoring requires a good deal more justification than that.  Can it really be that a ban on discrimination against passengers who carry alcohol – discrimination that, outside the context of taxicabs and a few similar common carriers, would be legal in nearly all contexts (employment, public accommodation, contracting, etc.) in nearly all jurisdictions – passes strict scrutiny simply because carving out an exemption might lead to some hypothetical slippery slope to allowing race discrimination?  If the interest in banning race discrimination is so compelling in various contexts, then that should justify applying race discrimination law uniformly in those contexts.  But I don’t see how that interest would justify applying laws banning other forms of discrimination, such as discrimination based on carrying alcohol.

                Eugene

From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Marc Stern
Sent: Wednesday, March 07, 2012 7:01 PM
To: 'religionlaw at lists.ucla.edu'
Subject: Re: Discrimination against people with religious motivations for their actions

Might I suggest another way of looking at this debate: race. Not the race of the drivers and that of their passengers. instead i take it as common ground that no one would tolerate taxi drivers turning down passengers on the basis of race. Does it follow that we should treat all prohibited grounds of discrimination with the same rigor, both as a matter of primary law-all forbidden categories are treated equal-or because once the prohibition on discrimination is weakened, even in good cause, the pressure for other exemptions will grow and will weaken the non discrimination norm in regard to race. The latter argument was raised after Boerne when the question was whether to include civil rights claims in a statute protecting religious liberty..
Marc


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