The discussion of the Israeli postal workers who are refusing to deliver Bibles led some to bring up the examples of Muslim cab drivers in Minneapolis who don’t want to drive passengers who are carrying alcohol, and pharmacy owners and pharmacy employees who do not want to sell drugs that they view as abortion pills. I think these cases are in important ways different, so I thought I’d briefly blog some thoughts on the subject.
1. The value of accommodation: To begin with, I think it is often good to accommodate people who have religious, cultural, or philosophical objections to generally applicable rules. The rules will often have been designed with an eye towards the typical person, for whom the rules are no great burden. A no-headgear rule might be no big deal to most employees, or most people participating in some other activity; but to Orthodox Jews or to Muslim women it might feel like a very great burden indeed. It often makes sense to think about that burden, and to consider the possibility of exempting people from such a burden.
This doesn’t tell us that there should be a constitutional right to religious or philosophical exemptions from generally applicable laws (I have argued that there shouldn’t be); nor does it tell us whether the government should mandate that private employers and others create such exemptions (as American law does mandate, to a modest extent). And it certainly doesn’t mean that such exemptions should always be granted, regardless of the burden they impose on others. It just means that we can’t simply assume that such exemptions should always be denied, and that The Rules Must Always Be Followed with no exceptions.
Indeed, in our ordinary lives, we often create such an exemptions with little controversy. If an employee comes to you with a special request for an exemption, you’ll probably consider giving it, even without regard to whether the law requires this. For instance, say your business is too small to be covered by religious accommodation requirements, and an employee asks to be excused from a rare situation where he would have to help serve alcohol — for instance, if you’re asking some general office assistants to help out with a party for the business’s customers. If the employee is asking to be excused just because he doesn’t feel like staying late, you might say, “tough luck.” But if you sense that it would be mentally burdensome for him to participate, whether because he’s Muslim, Methodist, or just staunchly opposed to intoxicating substances (perhaps because of an alcohol-related injury to a close family member), I suspect that you probably wouldn’t just say, “no, rules are rules.” Instead, you’d consider whether there’s some way of making things work; perhaps some other employee will gladly switch this duty for some other. Fortunately, there’s often a good deal of room for flexibility.
The same is often true in some government programs and even statutory or constitutional rules — consider the exemption for sacramental wine during Prohibition, or the provision in the Constitution that people could affirm instead of swearing in various contexts, a rule that was created to accommodate some religious groups (such as Quakers) that opposed swearing. Again, this doesn’t mean that all accommodation requests should be granted, or that accommodations should be limited to religious objectors; the affirmation option, for instance, benefits atheists as well as Quakers. It just means that requests for accommodations should often be considered seriously.
Sometimes, of course, we might want to reject the requests because of a worry that allowing one request would lead to many more, some insincere and some insincere, and the cost of dealing with the flood of requests — including the upset that will be caused if one exemption is granted but another is denied — would be too great. That is one reason that the Supreme Court, even during the era when it took the view that the Free Exercise Clause mandated many religious exemptions, generally refused to allow religious exemptions from tax laws. But often, especially when the request will be personally costly to the person asking for the request, we can expect that future requests will be rare, and we can save for a later day the question of what to do if they become much more frequent. I suspect that here too our actual practices in our business lives reflect this: We often rightly see little cause to worry much about a flood of exemption requests, for instance when someone asks for a religious exemption from a no-headgear policy, or asks for a short unpaid leave, whether for important secular reasons (e.g., to go to a funeral) or for religious reasons (e.g., to go to some religious festivals).
2. Employer rules vs. governmental rules applicable to everyone: It also seems to me that the case for accommodation is, all else being equal, stronger when the government exercises its sovereign power to constrain our liberty than when the government or a private employer is exercising its power over its employees. When a self-employed cab driver wants to decline to transport a passenger who is visibly carrying alcohol (or when a non-self-employed cab driver wants the same, and his employer has no objection), the driver is basically asking for the same right that most small businesspeople have — the right to choose which behavior to promote (even indirectly) through his actions. An architect who opposes alcohol could refuse to take a job designing a saloon. A restaurant owner could refuse to deliver food to an abortion clinic. A independent contractor gardener who deeply believes in animal rights could refuse to tend plants at a company that sells meat. To be sure, various laws, such as antidiscrimination laws. limit our rights to choose whom to do business with. But that right to choose remains valuable to us; the cab driver is simply asking for the same right.
Now the cab driver and the pharmacy owner is indeed required to have a government-provided license, and the license also gives him some protection from competition. This license might generally justify requiring cab drivers to generally take all comers. (I’m skeptical both of the monopoly licensing system and the take-all-comers rule, but obviously our legal system disagrees.) But I don’t think that this licensing and protection from competition should be enough to entirely cancel our sympathy for the driver’s or pharmacy owner’s claim, especially when the law imposes a far greater felt burden on him than it does on most drivers or pharmacists. Rightly or wrongly, a vast range of businesses and occupations require licenses of this sort: contractors, real estate agents, plumbers, and many more. We should try to minimize the degree to which such licensing systems burden people’s freedom, rather than just assuming that once some part of the freedom — the freedom to do business without a license — is lost, other claims of freedom should be rejected, too.
The protection against competition that cab drivers and pharmacists have should indeed heighten our concern for consumers, who might themselves be burdened by a combination of the licensing scheme and the exemptions claimed by those who are licensed. In principles, for instance, we might worry that all cab drivers will refuse to carry passengers who are transporting alcohol, or that the few pharmacists in an area will refuse to stock certain medicines and thus leave consumers unable to get the medicines. We might not worry much about consumers in situations where there is untrammeled competition, if we thinks consumers have no right to force unwilling businesspeople to do business with them. But we might think that, once the government limits consumer choice by limiting competition, the government should try to minimize the burden on consumers that this imposes.
But there are often ways in which consumers can be protected without putting objecting businesspeople to the choice of leaving their occupations or violating their religious or moral codes; and this is especially so because most businesspeople are perfectly happy to take their customers’ money, so that only a few people will seek an exemption from the duty to serve customers. Usually the main problem is to minimize the wasted time and effort on customers’ part that would happen if they aren’t properly informed of who is willing to serve them and who isn’t. But, for instance, if taxicabs are allowed to refuse to carry alcohol only if their cabs prominently note the no-alcohol policy, and if the taxicab dispatchers warned the callers of the policy, I suspect the result will be little difficulty for riders and a considerable benefit for drivers.
3. Employees: But when the claim for an exemption comes from an employee — let’s talk for now about government employees — who wants to be excused from part of his duties, the employer should be expected to do a good deal less than the government-as-sovereign would. The employee, after all, is asking not just for an exemption from a prohibition but for an exemption from a duty that he is being paid to perform. Sometimes the employer might still be able to easily accommodate the employee; consider the serving alcohol exemption from part 1, or consider a government-owned pharmacy (e.g., inside a county hospital) which always have several pharmacists on duty, and only one of the pharmacists has an objection to dispensing a particular drug. But often the accommodation may be much harder to implement, as with some other pharmacist-employee situations, or as with the Israeli mail carriers. This might mean a good deal of expense to the employer, or a good deal of burden on coworkers or on patrons. In such a situation, the government employer (or a private employer, once the law imposes some duty to accommodate on private employers) should be allowed to tell people that, if they want to be paid, they should do the job they are being paid to do.
Of course, distinctions between employees, government contractors, government licensees, and others aren’t always sharp or necessarily dispositive. One could, for instance, treat a government-licensed cab driver — or pharmacist or plumber or real estate agent — as a sort of government employee who is being “hired” to function in an occupation, and who is being “paid” not with a salary but with a license. But it seems to me that the absence of a government paycheck is a pretty important distinction in many of these cases, both in terms of how much the recipient can reasonably be required to give up as a condition of the benefit, and in terms of how much the exemption will interfere with the government function. As I mentioned above, I suspect that a few cab drivers’ prominently noted refusal to transport alcohol will do little harm to the effectiveness of the government’s transportation policies; among other things, there will generally be many cab drivers who are prepared to drive a particular route at a particular time. But postal carriers’ refusal to transport the mail will do a good deal more harm to their government employer’s effectiveness, partly because the government — relying on their status as employees, and thus the expectation that each of them will deliver whatever needs delivering — has set things up so that all the mail to a particular building will be delivered by a particular carrier.
4. American law: And, not coincidentally, American law seems to largely track this, at least in many jurisdictions. All states and the federal government offer a considerable range of exemptions from mandates imposed by the government as sovereign. About half the states and the federal government also have general mandates — imposed either by state statute or by the state courts’ interpretation of the state constitutional religious freedom provisions — requiring exemptions in such cases, unless denying the exemption is necessary to serve a compelling government interest. But when it comes to employment, either public or private, the law generally requires accommodations only if they impose at most a small cost on an employer.
Again, one can debate which of these rules should be imposed quite the way they have been imposed. (For instance, I generally prefer state statutory exemption regimes, rather than ones implemented under the state constitution, and I’m not sure that any duty to accommodate should be imposed by law on private employers.) But in general, the pattern I describe above seems to be what American law mandates.