I think this refers back to the Job Interview... "Seriously, what is your legal theory?"

If this theory were successful, would it prohibit Christian-owned businesses from closing on Sunday?

And if they're free to close Saturdays for secular reasons, they're equally free to close Saturdays for religious reasons.

Is this broad statement really true? I mean, it's kind of like saying "if I'm free to refuse to hire you for secular reasons, I'm equally free to refuse to hire you for religious reasons." A business can turn away customers for any number of reasons, but it can't do so because they're Jewish, right?

Is the clinic closed on Sunday? If not, this should address the purported primary claim of the suit: that individuals are being denied easy access to treatment in a discriminatory fashion. If it is then shouldn't the NAACP be suit include the Sunday closing as being just as religiously inspired as the Saturday closing. My guess is some local NAACP bigwig got annoyed about some imagined slight at the clinic or from a clinic-involved person and this is her way of throwing a hissy fit.

I'm right with you dejapooh. I realize that we want lawyers to be zealous advocates and that advocacy sometimes requires creative arguments. But it's still frustrating that some lawyers cannot tell the difference between creativity and frivolity.

A quick look at Yahoo Yellow pages show plenty of medical services available right in Spring Valley, so the patients have alternatives if they don’t like the availability of this particular clinic. Moreover lots of medical clinics are closed for the entire weekend, what about them? Suppose the Ben Gilman clinic is open on Sunday instead of Saturday, would that be a cause of action? Then again why can’t I impose my religion on others? The constitution only bars the government from imposing religion, not individuals. Does the NAACP think a Temple can’t require male visitors to cover their heads because that would be imposing religion? Finally if Muslims ran the clinic and imposed certain rules mandated by the Koran do you think NAACP would sue? I doubt it because they are afraid. Look at what’s has happened in America.

Thanks for the response, Prof. Volokh. That makes a lot of sense.

I hope they succeed. I'm tired of having nothing but Chinese restaurants open on Christmas Day.

Try a casino sometime.

Hopefully someone like IJ takes the clinic under their wing for this. They probably don't care enough to litigate it otherwise.

would find it convenient to visit their doctors on a Saturday when they had the day off

I would find that convenient too. Oh, and banks too. While we're at it, I'd like the DMV to be open 24 hours a day as well. Along with the dry cleaners.

Wouldn't it be more of a disparate impact theory (as opposed to "disparate treatment" as the story states) since they are closed to everyone on Saturday, but it "affects" (and I use that term loosely) more blacks and hispanics? Or is that strictly employment law?

Re Chick-Fil-A: The fact that they aren't open on Sunday puts them at a decided disadvantage in bidding for the concession, against those who can expect to derive revenue from sales on Sunday sales as well as on the other days of the week. If they can tie one-seventh of their hands behind their back that way and still win the bidding, I say more power to them. (I might think differently if they were the only restaurant in the airport, though.)

Those who work -- more than 80 percent of the clinic's clientele are Hispanic or black, according to a letter the clinic sent to the Human Rights Commission earlier this year -- would find it convenient to visit their doctors on a Saturday when they had the day off

I find this sentence wonderfully ironic (in a just-shoot-me-now-it's-so-depressing kind of way). Do these people not realize that this "convenience" would not be available if someone hadn't got the religious notion that people should have Saturday off? Come to think of it, they probably don't realize, history being dead and all...

Also, what's with that parenthetical remark about the clientele being 80% black and hispanic? How is that relevant? I understand that it is the NAACP that is filing the complaint, but why make reference to the racial composition of the clientele in a sentence talking about their working situation? Apposing this comment to the phrase "those who work" strikes me as suggestively racist, though it may well have been just sloppy writing.

Wrigley,
What does this case have to do with blue laws?

Nuts.

Assuming arguendo the issue is not resolved, the apparent claim has got to be at least marginally stronger than the newspaper claim, if only because 1) a reasonable case for extending disparate impact to Title II exists and 2) in the absence of a breadth of case law, there are a lot of possibilities out.

Indeed, given that it is a reasonable claim in that sense, filing it is certainly reasonable (i.e., able to backed by a reason).

Should be:

Assuming arguendo the issue is not resolved, the apparent claim has got to be at least marginally stronger than the newspaper claim, if only because 1) a reasonable case for extending disparate impact to Title II exists and 2) in the absence of a breadth of case law, the freedom to argue how the law should be is much greater.

Indeed, given that it is a reasonable claim in that first sense, filing the complaint is certainly also reasonable in a more basic sense (i.e., able to backed by a reason).

I'd like to see the NAAcP win this one, and the court essentially tell the owners they can't operate the clinic and keep their Sabbath. Why? Living in a mostly Orthodox neighborhood, I've seen what happens when such choices become necessary, and I'd love to see them close the clinic, liquidate all the assets, and leave the patients and the neighborhood high and dry. That might be a good lesson.

Ok, so I am wondering what EV sees as different about a racial challenge to the First Amendment vs. a disability challenge to the First Amendment -- especially when the racial challenge invokes no countervailing First Amendment rights compared to the disability communication challenge invoking a heavy First Amendment right as against another claimed First Amendment right to disriminate?

I am still waiting for the answer to this question, with rational discourse.

"Also, what's with that parenthetical remark about the clientele being 80% black and hispanic? How is that relevant?"

It is relevant because however the complaint is otherwise cloaked, it is really all about a racial challenge to First Amendment activity.

Does this mean the next time I try to get gasoline for my car and the Muslim station attendants are on their prayer mat, ignoring customers, I can sue?
Didn't the NAACP ever hear the proverb, "be careful of what you wish for, you might get it?".

The ACLU will get a headache trying to figure out which side to take.

If the NAACP doesn't like the clinic's hours, let them open their own clinic.

It's unclear whether federal public accommodations law recognizes a disparate impact theory. (New York state public accommodations law does not.) But that doesn't matter, because the policy of closing Saturdays doesn't have a disparate impact on patrons based on religion. If the clinic is open only Mondays through Fridays, the consequence is that it's re available precisely the same number of days a week (five) to observant Jews and to others (setting aside Muslims, which are apparently not at issue here, and who don't have an obligation not to go to the doctor's Fridays in any event). If it's open Mondays through Fridays and Sundays, it's also available the same number of days a week (six) to observant Jews and to virtually everyone else, because Christians generally have no obligation not to go doctor's offices Sundays. The clinic's policy is motivated by the clinic owners' religion, but it doesn't have a disparate impact based on religion.

Of course, even if a disparate impact was present, such disparate impacts will very often be just fine. A store's high prices will usually have a disparate impact based on race, because income varies by race and lower-income people will be less likely to afford high prices. A store's decision to locate in some mostly-white/mostly-black/mostly-Asian part of town will have a disparate impact based on race. A store's decision not to be kosher will have a disparate impact based on religion; the list could go on. That's why even those few public accommodations discrimination laws that do have a disparate impact provision let businesses maintain practices that have a disparate impact so long as the practice "bears a significant relationship to a significant business objective" (I quote here from the New York City law), at least unless (to quote a New York Court of Appeals case) "plaintiff produces substantial evidence of an available alternative policy or practice with less disparate impact, and defendant fails to prove that the alternative policy or practice would not serve defendant's significant business objective as well as the complained-of policy or practice." Choosing to close Saturdays, Sundays, or both will doubltess have a significant relationship to a significant business objective (accommodating your employees' religious practice, or for that matter their desire to relax on weekends). That's why even in New York City it's perfectly proper for businesses to close Sundays but not Saturdays, a practice that does have a disparate impact on devout Jewish shoppers (since that leaves them unable -- given the strictures of their religion -- to shop at the store at all on the weekend, while non-Jews can shop Saturday).

But in any event, none of the "significant business objective" analysis is even needed here, because the shop's policy has no religiously disparate impact, as I noted in the first paragraph.

Boy, what damage one poorly worded clause can make! I'm thinking here of the Establishment Clause. From that one mention-- the intent of which is perfectly clear-- has grown an entire industry devoted to finding new and ever more intrusive applications of it!

Not that it matters, but I can't help but think that the if NAACP has to sue somebody, it should be the lawyer who told them that this was a reasonable cause for action.

It seems that "religion" has become the one motivation that is absolutely forbidden in any public activity. You can do whatever you want just to be a bastard, but do the same things for a religious motive, and you're screwed.

The bottom line here is that the weekend is about to be outlawed. A fitting epitaph to our lawsuit-crazed society!

Prof. Volokh:

I'm certainly no expert, and I've not yet seen anything other than the article you linked for detailed facts, but I don't think we've really looked at the true disparate impact test.

1. It is important, I think that the plaintiff need only make "a minimal showing," and trial courts, to my experience, do give great leeway at this stage.

2. Your conclusion -- that the policy affects Jews and non-Jews equally -- seems to be based upon a logical argument, i.e., anyone can go Sun-Mon, and no one can go on Sat, so where is the disparity? At least, that is my understanding of your argument.

But "Claims that stress 'disparate impact' by contrast involve ... practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another." Smith v. City of Jackson.

Your argument, it seems to me, begs the question of how to measure the relative "treatment" of the policy. This tension is similar to the equal access versus equal results debate. Without attempting to resolve that debate, I would note that here, any argument regarding the treatment is likely to have to dig into the actual practice, e.g., its actual, real-world effects.

Under Smith, "the employee is responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities."

For comparison's sake, consider the cases discussing whether a facially neutral test can constitute disparate impact, e.g., Isabel v. City of Memphis. In those cases, everyone, whites, blacks, jews, non-jews, even me, is qualified only if they can muster a certain score on some sort of race-blind test. However, for reasons not important for the purposes of the plaintiff's initial burden, a qualified group does not pass as well as the population as a whole. That, in most cases, is sufficient for a disparate impact showing (though often the employers can show a legitimate reason).

Turning to the instant case, Professor Volokh knows, I know, and everyone else reading the webpage of a computer programmer/law professor/off-screen-character knows that anyone with enough energy and enough data can find a way to present the data such that non-Jews are "accessing" the hospital at a rate lower than Jews. Indeed, I think it will be particularly easy. I am guessing that 1 - the Jewish people in the area are more sensitive to the Sabbath initially so they are more likely to find jobs that will not put them in this bind in the first place, 2 - the Jewish people there (like here in Tennessee) are, statistically speaking, more likely on average to have greater than average flexibility with leave from work, and 3 - a significant proportion of the local non-Jews (or, given the apparent plaintiffs, African-Americans) in the area have jobs which do not grant them great flexibility. If those assumptions (or reasonably similar ones) are the case, an argument could easily be made using statistics that is at least superficially similar to many disparate-impact employment cases that make it past that initial hurdle.

You might object, and I have vociferously in the past objected, that the pattern that some plaintiff identifies is the result of a mistake in reading the statistics or correlation with a third variable, e.g., wealth, but those arguments rarely succeed, especially since the plaintiff's initial burden is minimal.

Of course, all of my commentary is predicated upon a court applying disparate impact to public accommodations, which is not a guarantee. But neither is asking a court to do so obviously wrong.

Please do remember that my point throughout is not that the NAACP necessarily wins, but that this is not a "quite legally unfounded" case, and it certainly is not sanctionably bad, as several commenters have suggested, based on what we've seen so far. Indeed, if at any point the urge to contend that I've made an argument by analogy in error, the question is not whether a better analogy can be made, but whether my analogy is some obviously wrong that it cannot ethically be presented to a court.

Orwellian logic at its apex.

By the way, when does the NAACP sue Chick-Fil-A for closing on Sunday?

I used to live in Des Moines, where most restaurants -- of the sit-down variety anyway -- closed on Mondays. This was once common across the Midwest, though I believe less so nowadays.

Though an informal business decision, it was, in its way, an accommodation of religion, because Midwestern Christians liked to have family dinners out on Sundays.

++++

I am not quite following Professor Volokh's statement:

'That's why even in New York City it's perfectly proper for businesses to close Sundays but not Saturdays, a practice that does have a disparate impact on devout Jewish shoppers (since that leaves them unable -- given the strictures of their religion -- to shop at the store at all on the weekend, while non-Jews can shop Saturday).'

I was in NYC last Saturday, and some businesses (the furniture store next to my hotel, for example) were closed. I don't know if it opened on Sunday.

If Chik-Fil-A feels so strongly about family time, it ought, in decency, decline to bid for spaces at Hartsfield-Jackson.

If Hartsfield-Jackson feels so strongly about full food court availability, it ought, in decency, decline Chik-Fil-A's bid.

Chik-Fil-A would only have to decline the bid if H-J required a 7 day work week as a condition of bid. Since they were allowed to bid and still close on Sundays, then I don't see why "decency" requires them not to.

Tennessean: the argument is frivolous. The fact that you can construct a chain of reasoning -- based on, admittedly, "virtually no cases in this area of law" -- does not a meritorious argument make. (Indeed, the fact that there aren't any cases is further evidence of frivolousness, given the length of time that both Title II and the disparate impact doctrine have been in existence.)

Sometimes one has to take a step back and look at the big picture, rather than individual steps in a logical chain. You're trying to argue that customers can dictate to a business when it must remain open based on the fact that there are different rates of poverty among different minority groups. (Or, in this case, majority groups, since it's a religious discrimination argument.) And if this argument flew, it would apply to every business covered by Title II in the United States, since your chain of reasoning ("non-Jews less likely to have flexible hours, etc.") does not depend upon the fact that this is a health clinic. Moreover, any Orthodox Jew in the U.S. could force any business covered by Title II to open on Sunday, since being open on Saturday and closed on Sunday really does have a disparate impact on Orthodox Jews.

You argue that "a reasonable case for extending disparate impact to Title II exists." But the fact that the chain of logic leads to a ridiculous conclusion is conclusive proof that no such reasonable case exists, and that asking a court to do is "obviously wrong."

(If your argument here is limited to the claim that they would not be sanctioned for making this argument, you're almost certainly right, unfortunately. Courts impose sanctions for frivolous arguments about 1% as often as they ought to.)

(This does illustrate why disparate impact is an absurd legal doctrine to begin with, though.)

I venture into actual law commentary rather hesitantly.

When I was an adolescent I had a personal physician named Dr. Larry X. Larry X is Jewish and had two partners in a private practice whose heritage I do not remember. My recollection was that although I lived in South Florida, which was metropolitan even then, our relationship had much more of a Mayberry RFD quality. “You have a green stick fracture and …” and “I know you are in pain, but you have a head injury and I don’t think medication is prudent” are close approximations of his part of conversations with me. One thing I do remember was that the business hours posted on the glass by the door and that besides being closed on Saturday and Sunday the office closed at 12:00 on Wednesday’s; my mother told me that Wednesdays were when Dr. X and his partners would play golf.

I am distressed that there is serious consideration of compulsory service as a prerequisite for entry into the economy. Can we adapt/thrive/grow/survive in an economic system where a government board determines the working schedules of individuals? If Dr. X and his partners were not allowed to remove their service because of his and possibly his partner’s religious convictions on Saturday how is it possible that they would be allowed to continue to remove their services on Sunday, or Wednesday afternoons.

MKD-P seems convinced that disparate impact trumps all other consideration. But I myself am saddened that lawyers are so blithe to the potential outcomes. If you can show that a sector of society has reduced opportunities to a point that is statically significant the remainder of society must lose its ability to be an independent operator.

I just don't understand why patrons not satisfied with the service they are receiving are not expected to find alternative service providers. I realize that I am about to have dump trucks full of law books driven over my corpse, but as someone who has mowed lawns in the Florida sun there is definitely a difference between engaging in economic activity and not.

I did not see this mentioned above. For a long time, (into the 60s as I recall), New York State blue laws required Sunday closure. This meant that Saturday Sabbath observers had to close their buiness at least two days a week. The law was changed to require closure at least one day a week, and, I believe the requirement was later abolished except for some sorts of businesses such as liquor stores.

Professor Volokh: You'd think a fellow arguing that the devil is in the details would look at all the details, huh? I still think that: 1) these facts would likely support a prima facie disparate impact showing, 2) rebutting it would not be automatic, and 3) the business objective test, if it applies, requires more than just "if we can close on Sunday, we can close on Saturday." However, the hospitals-aren't-Title II-subjects point pretermits those inquiries as to Title II, and that point, not surprisingly, is pretty convincing.

My pride wants me to look at Title VI or state-action doctrine to see if a legitimate claim could be made under those criteria (likely there being more focused on alleged race discrimination), looking at cases perhaps like Ferguson v City of Charleston (1999, CA4 SC) 186 F3d 469, NAACP v Wilmington Medical Center, Inc. (1980, DC Del) 491 F Supp 290, I am guessing that would be a tough, time-consuming road. See New York City Envtl. Justice Alliance v Giuliani (1999, SD NY) 50 F Supp 2d 250 (NY court suggesting that even under disparate impact theory, there must be an allegation of intentional discrimination).

Nonetheless, I am curious to see if we ever get to see any actual pleadings or hear about any apparent settlement.

(And, not surprisingly, I remain of the opinion that most of the critiques of the NAACP's action are "incredibly overwrought and motivated more by personal distaste for the result rather than a reasoned conclusion regarding the apparent claim's legal merits." I have my doubts that those critiques are based upon the hospital/hotel distinction.)

Tennessean:

If it is your belief that I am arguing that "customers can dictate to a business when it must remain open based on the fact that there are different rates of poverty among different minority groups" than most likely I have written very poorly. That is not at all what I have argued.

I agree that you have not "argued" that in the sense of advocating it. But you have argued it in the sense that (a) you have argued that the NAACP's suit, which seeks to do exactly what you say you are not arguing, is not frivolous, and (b) you have proposed a logical chain of reasoning under which this claim could have merit, and this would be the end point of that logical chain of reasoning.

The NAACP's suit is based upon the premise that a court can order a business to remain open for no reason other than that non-Jews want to would have an easier time if they could patronize the business on Saturdays, and you have argued that this is non-frivolous. And I do not believe that there's any logical principle which would distinguish this clinic from any other business (at least any other business which the poor can afford to patronize) from the point of view of its opening/closing decisions having a disparate impact on certain groups.


Every decision which affects the poor differently than the rich will have a disparate racial impact. Many, of course, can be justified based on business reasons — but (a) many non-discriminatory ones cannot, and (b) your theory would have it that merely identifying a disparate impact — which is incredibly easy — inherently makes a case non-frivolous (though perhaps not successful).

What I have argued is that where a business entity makes a decision based strictly on religious doctrine that does have an adverse impact on members of other religions, a disparate-impact civil rights lawsuit is not frivilous and may well make it past summary judgment.

It's a little misleading to say "based strictly on religious doctrine," as if the religious reason made the difference; it's not the religious motive that matters but the lack of economic motive.

As for "making it past summary judgment," there are only two possibilities: the plaintiffs can win, in which case "customers can dictate to a business when it must remain open based on the fact that there are different rates of poverty among different minority groups," or the plaintiffs can't win, in which case bringing the suit is frivolous.

And, not surprisingly, I remain of the opinion that most of the critiques of the NAACP's action are "incredibly overwrought and motivated more by personal distaste for the result rather than a reasoned conclusion regarding the apparent claim's legal merits."

What's wrong with that? Of course, some people have offered legal critiques of the NAACP — and those should be based upon the legal merits — but most of the critiques of the NAACP's action are based on the actual merits, not the legal merits, of the case. The two are not the same. The mere fact that the law permits an action does not make it justifiable to bring it. (A lawyer may have a duty of zealous advocacy once he takes a particular case, but he is not morally or ethically obligated to accept every case.)

Moreover, any Orthodox Jew in the U.S. could force any business covered by Title II to open on Sunday, since being open on Saturday and closed on Sunday really does have a disparate impact on Orthodox Jews.

David, maybe it's not such a bad theory after all. Can I also force trefah restaurants to clean out there entire kitchen, get new kosher plates, pots, pans and ovens and a rabbinic supervisor and serve me a kosher meal?

Tennesean, you may be interested to know that there are plenty of low-income Jews in the US and that until recently Orthodox Jews used to be more likely than non-Orthodox Jews to be lower income. Today I would guess that there secular Jews from the former Soviet Union also are grouped in the lower income brackets of the American Jewish community. (Sorry if I've challenged anyone's neat little stereotype that we are all rich and all Orthodox.)But I am not familar with any cases that find Orthodox Jews in particular to be a protected category or a suspect (as opposed to suspected or suspicion-worthy) class.

If the court says the plaintiffs win, can't every working person turn around and sue the COURT for not being open on Saturday or Sunday?

It seems to me that whatever claim the NAACP has against the doctors it has against the COURT, too. I mean, isn't the "discrimination" (religion, race, whatever) WORSE when your own government does it to you?

I'm not a lawyer (ok, not a good one like the people here) but, using the "logic" of the case, can't jews sue the NCAA because games are only held on Saturdays? Can't Christians sue NASCAR because the races are on Sundays (I'm guessin' on that; I don't know when they race...)

It seems to me I could think of lots of these. Which is why people call the argument silly.