The Law Should Force Them To Open Saturdays: Yes, that's the legal theory of the Spring Valley (N.Y.) NAACP, which argues that the clinic's closing Saturdays (because the doctors who run it observe the Sabbath) "stifle[s the NAACP's] efforts towards the equality, diversity, and religious freedom to encourage tolerance in our society." Uh-huh.
The NAACP's complaint (which I just got and posted here) outlines the group's theory. I had said more about the legal problems with the theory Friday, based on a newspaper account (which proved to be quite accurate). Here, let me just note a few key excerpts from the complaint:
The Spring Valley NAACP's theory is that closing Saturdays is "invok[ing] their own religion to discriminate [against] the patients who practice any religion other than Hasidic Judaism ... by (a) engaging in disparate treatment of people who believe in a religion other than Hasidic Judaism and (b) failing to accommodate other religious beliefs." No word from the NAACP about whether stores of all sorts that close Sundays are breaking the law as well, or about why it's "disparate treatment" to be available the same days for Jews and non-Jews.
"The willful closing of the clinic on Saturdays serves no other business purpose than to impose the extremity of their own religious beliefs in Hasidic Judaism on the community it serves which consists of predominantly African Americans and Hispanics." No word about whether complying with one's own religious beliefs about when one chooses not to work is a legtimate "business purpose" — or about why closing Saturdays because of one's religion is any worse than closing Saturdays because one wants to go home for the weekend (something that I take it even the Spring Valley NAACP wouldn't oppose).
"By following the customs as set by rabbinic authority, the respondents are intentionally targeting the Christian employees and patients in general and in particular." An odd definition of "intentionally targeting," it seems to me, and again one that leads one to wonder why a Christian's closing Sundays isn't equally "intentionally targeting the [Jewish] employees and patients."
"While the above named aiders and abettors have the right to follow their own moral values but they should not use their beliefs as a platform to promote religion on the members of our organization." Hard to see how there's any "promot[ing]" going on here — it's hardly that the Jews are trying to get non-Jews to convert to Judaism. It's also hard to see how the Spring Valley NAACP is serious about acknowledging the doctors' "right to follow their own moral values," since they're seeking to use the law to force the doctors to violate their moral values.
The Spring Valley NAACP also alleges employment discrimination by the clinic, and deliberate racial segregation of patients; that would be illegal, if proven, though the complaint notes no evidence of this. (The Spring Valley NAACP has also been pushing to get the Clinic "to hire a diverse staff"; to the extent this calls for race-based hiring, this might, under certain plausible circumstances, be itself a call for illegal discrimination.) But those objections from the Spring Valley NAACP are separate from the ones I note here.
Related Posts (on one page):
- Jewish-Owned Clinic's Decision to Close Saturdays Interferes With Religious Freedom --
- NAACP Chapter Claims That It's Illegal for Jewish-Owned Medical Clinic to Close Saturdays:
Looks like we're going to be working Christmas this year.
I suppose Easter is going to be a big no-no as well.
RULE E-LEV-EN! (clap clap clap-clap-clap)
1415. It is § 297(10),.and I believe it applies to housing discrimination claims only.Now I really don't like them.
Being closed on Saturday has nothing to do with "Hasidic Judaism" and everything to do with Judaism. I'm not sure why the NAACP had to throw in "Hasidic"
All Orthodox Jews believe it is against their faith to work on Saturday, and not just the subset of Orthodox Jews known as Hasidim. However, I have to take issue with your statement that “[b]eing closed on Saturday has … everything to do with Judaism,” with its connotation that this is some universal truth for all Jews. Many Jews take their religion very seriously, but do not find that working on Saturday violates their religious beliefs. Who gave you the right to define other people’s religious practice?
Sorry Eugene about getting of the topic, but statements like that irk me.
Or is it a "complaint" in the more lay sense of the word, in that it serves merely to call the attention of the administrative agency to something the NAACP doesn't like, leaving the agency free to (1) investigate, (2) commence proceedings of some sort, (3) take some kind of action against the hospital, or (4) do nothing (or do something else that I've left out?)
My knee-jerk reaction is to think that this supports all of my general impressions of what depths the NAACP has sunk to, but I'd like to be more certain before making that judgment.
It could be that the NAACP perceives that this "tradition clash" (for lack of a better neutral-sounding term) is problematic, and the best way to provoke some resolution or dialogue is to complain to the authorities and see if they can do something.
Or maybe I'm being naive.
As this is a complaint and not a legal action, does the NAACP have standing to file the compliant without being patients? Perhaps an actual patient did make the complaint with the NAACP playing an advisory role.
I’m going to speculate that this complaint is pure harassment. It wouldn’t surprise me to find that no patient is even upset about the Saturday closing and would be perfectly happy to go on Sunday. If the clinic is closed on Sunday too, then it’s just like all those other businesses that close for the weekend. I think this particular NAACP office is just trying to pick a fight.
But is the same not true of efforts to force a Catholic pharmacy to provide objectionable products, e.g., abortion pills (RU-486, the "Plan B" pill, etc.? Put aside, for the moment, the argument that the decision belongs with the pharm-owner. That's a perfectly reasonable libertarian principle, under which an owner can choose to carry a product or not, and under which an owner could fire a pharm-employee who won't go along. But most of the efforts I've seen have been from pro-"choice" activists who want state law to enforce a "duty to the customer," which must be met by ALL pharmacies, regardless of owner preference. Further, I understand that some want to limit State pharm licenses to only those who will fill all prescriptions, etc.
To me, that's as easy a call as this NAACP insanity. But so many seem to disagree . . .
Maybe they just need to close the clinic and move somewhere that closing Saturdays won't be a "problem."
Talk about biting the hand that helps you....
Obviously there is not a State actor involved here, but the disparate impact theory is the same. Christian patients who do not do business on Sundays cannot go to the clinic on the weekend (assuming that it is open on Sunday).
I agree with all of the comments that the complaints asks for a very offensive result. I am trying to find a legal theory that fits.
I bet the Seventh-Day Adventists don't mind the policy either...
I don't have a dog in the ru486 fight, but one thing that jumps out at me is the unseemliness of a pharmacist, whose sole position is due to a very "unlibertarian" state monopoly, using that monopoly to deny people certain drugs. I mean, c'mon, a guy gets a special state power to take 50 pills or whatever out of a big bottle and put them in a little bottle. On that basis, I don't think it would be any less defensible if the pharm refused to fill ru486 prescriptions because he had an aversion to the pills' color (as opposed to religious reasons).
On the other hand, because the Smith doctrine renders the Free Exercise Clause essentially toothless, we live in a society where such a complaint is merely a legislative choice away from being viable. Nothing prevents a town with a religious minority from adapting sucha a policy, hissy-fit and all.
Either Mr. Trotman or the person who wrote up that complaint has serious deficiencies in writing ability. He uses the phrases like “information and belief,” so I can’t help but wonder if he got that from some other complaint, or a lawyer was involved somehow.
Finally it seems to me that the clinic in trying to accommodate the NAACP told it too much, and thus gave them some ammunition to use against the clinic. Why not just say: As a private business it’s our prerogative to choose our business hours like any other organization, like the NAACP,” and leave it at that?
What, are they using some special Jewish calendar with extra Saturdays?
“The Thirteenth Amendment says I don’t have to work for anyone, anytime, anywhere, anyplace, unless I want to, asshole? ” (Sorry for “asshole” but can you think of a better appellation?) (And we can talk about the consensual nature, cf. Roe v. Wade, of the doctor-patient relationship with any asshole who thinks the NAACP assholes are right.)
On the other hand, it makes for fun blogging.
[1] True, pharmacists get a certain degree of state-backed monopoly power. In various states, they can block any rival pharmacy starting up within a certain radius of theirs.
[2] Whether their refusal to distribute contraceptives (or abortifacients, alcohol, caffeine products, blood transfusion leaflets, dancing shoes, graven images, or anything else that offends their religious beliefs) is a burden on someone else's freedom of choice depends on how wide this radius is. A 100-mile zone would be an obvious burden. But a zoning law that said simply "You can't have two pharmacists right next door to each other" would be reasonable.
[3] If -- and only if -- the radius is wide enough to make pharmaceutical objections a "burden", then, by virtue of the legally-enforced monopoly within that radius, it becomes a "state-imposed burden". Aliter if it's imposed by private agreement, eg, your former apprentice contracts not to go into business against you (taking away customers s/he first met through working for you) within a certain time and distance. (At least if the contract binds the original parties who wrote the terms -- Shelley v Kramer be distinguished).
Even if it is really an 8 instead of a 9, it is still 9 days after the notarization by the complainant himself.
That said, I think that if the clinic closes Saturdays to accommodate the Jewish people, it should also close Sunday to accommodate the Christian people. In fact, it should close every day that a religion has a sacred holiday, to be fair and equitable. Then the NAACP can go try to find somewhere else to treat the bullet wounds to their collective foot.
Danile San, SCOTUS ruled in TWO GUYS FROM HARRISON-ALLENTOWN, INC., v. McGINLEY 366 U.S. 582 (1961) and in GALLAGHER v. CROWN KOSHER MARKET, 366 U.S. 617 (1961) that Sunday blue laws were consitutional and that the free exercise clause did not require a legislative or judicial exception for businesses that conscientiously observe a Sabbath on a day other than Sunday. Thus observant Orthodox Jewish shoppers, who cannot sho on Saturday, have no right to buy kosher meat on Sunday, and the kosher butcher, who cannot open on Saturday, has no right to sell it to them on Sunday. A footnote in one of the cases (I think it was Crown) even raised the specter that such an exemption might violate the establishment clause and might frustrate the secular (in the court's view) goal of a uniform day of rest, allowing Jewish mrechants to run honest gentiles out of business by unfairly staying open on Sunday.
To those who pointed out that the administrative complaint was filed by a lay person -- if the complaint was filed on behalf of anyone except the person who prepared it -- i.e. if it was filed on behalf of the NAACP or its members or constituents -- why isn't the lay person guilty of unauthorized practice of law? Unless federal law somehow trumps state regulation of attorneyes, they certainly would be guilty in Ohio.
The fact that the local NAACP has been trying to force the clinic to replace its employees with those proposed by the NAACP explains a lot. It's easy to see this an Operation PUSH type of payback -- let us dictate your hiring practices even though you already comply with law, or we will cost you time and money by publicly and falsely branding you as racist. That may be another reason for tossing in the term Hasidic -- in the minds of some, it will conjure up additional support for a charge that the policies are based on racism. Think of some of the justifications that were bandied about for the anti-Jewish riot in Crown Heights in the early 90's and the resulting murder of a Hasidic man during those riots.
And also-- since when did a business have to follow the customary practices of the local, neighborhood residents? Instituting that rule would result in complete insanity. Not to mention the creation of mono-race, mono-culture neighborhoods. (Hey! The NAACP's dream come true?? Re-segregation? Sometimes I think so.)
Same thing here. Keeping the "interlopers" out. Nothing racist or unfair about it. Move along....
Untrue. This clinic is in Monsey, which is a predominantly Hasidic area, and the owners of the clinics are New Square Hasidim. It's not a rhetorical fig leaf, but an attempt to be precise.
Another question: Could the feds and state have said "We're giving you the cash, and as a condition we want you open on Saturday." If so, why didn't they?
Paramus is a highly congested area even without the extra traffic from New York to Paramus Park Mall. Every time Bergen County brings the laws up for a vote, the citizens of the county vote to keep the no-Sunday-shopping laws intact.
And a whole lot of Jews live in Bergen County, so it isn't a religious thing.
But I agree with you that their privileged postition shouldn't allow them to those kind of unilateral decisions. Having your case and all that.
The question is: Once one submits to government intrusion (whether licensing, financing or other) at what point, if any, does one lose the right to act independently of the the government's tentacles?
If you look at the history of such matters in 20th Century America, the answer to your last question is pretty much "the minute you agree to government supervision."
Once the government gets its foot in the door, it is only a matter of time before the whole body (and the complete circus that follows) gets in. I am a physician. The State Medical Board has defined "unprofessional conduct" so broadly, that being a doctor is an entire lifestyle! And I am not exaggerating in the least.
If I went on vacation to Jamaica and smoked a joint there, I would very much be guilty of "unprofessional conduct," and would potentially be in jeopardy of losing my licence. At the very least, the State Medical Board would insist that my behavior in Jamaica was regulated by them. Even though no patients were involved, and nothing I did could be in anyway construed as "practicing medicine."
That's how far government tentacles reach.
Second, it's not just the state licensing a pharmacist for qualifications. It's the system of drug distribution we have in this country where I have to go to a special guy in a white coat, with a special doctor's note in hand, to get a simple pill like Zyrtec. That seems to me to be an unjustified monopoly. (At least a litigant who doesn't want to hire a lawyer, for example, can represent himself if he wants.)
So in that regard, it doesn't seem bad for the people (through their elected representatives) to put certain conditions on professionals conducting a business that wouldn't exist but for the government's (other) arbitrary rules.
Let me pose an analogous case: suppose the practices involved were, instead of staying home on Saturday, the act of sitting in the front of the bus. Suppose this made the plaintiffs, the majority of the residents of the town, uncomfortable and caused them inconvenience. Would this nake the case different in any essential? Now suppose that, instead of a religious discrimination theory, a racial discrimination theory was posed (the practice going against the convenience of the majority race).
Would this make the case different in any essential? I seem to remember there were certain laws designed to secure the comfort and convenience of the majority race. Now what were they called...?
Gee, and here I was almost being taken in by all that guff about how Griswold and Roe v Wade left America with a "pro-choice" legal regime as distinct (very much distinct, oh yes, believe me) from a "pro-abortion" and "pro-contraception" one, about the sacred and traditional right of the medical practitioner to exercise judgment. Nearly got fooled on that. Interesting how "your individual choices, meaning of the universe, defining the mystery of life, etc" goes in the trashcan when someone doesn't want to prevent the birth of non-convenient children. Looks like this particular hypocrisy isn't just Katha Pollitt.
"Does the fact that most businesses close at night discriminate against Vampires?
Seriously, I know a few chronic insomniacs and night-owls (their habits reinforced by the rise of the Internet) whom it would indeed discriminate against.
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Halacha (Jewish law) has recognised that preserving human life is very important. There are exceptions, but the only non-contrived example I can think of is that you cannot kill one person in order to save another one. That rule is subject to its own exceptions - you can kill a murderer to save his victim, for instance.
The fact that this principle includes breaking the Sabbath has been accepted since at least the time of the Hasmonean revolt in 165 BCE. Maimonides died in 1204 CE, so it predates him by 1300 years or so.
Although saving a life justifies breaking the Sabbath, this does not justify the other business of the clinic. The clinic would be forbidden to perform non-lifesaving medical treatments and it could not create records for billing or other purposes, except those medical records that are in themselves necessary to preserve life. This would effectively mean that the clinic would be an charitable emergency centre of last resort, which is not what the NAACP claims to be entitled to.
My statement of halacha above is only a general recital based on my knowledge as an Orthodox Jew. With all due respect to uncleyuri, the stated facts indicate that the clinic owners have discussed their ethical and religious duties with a rabbi. Even I would not try to second-guess them under such circumstances, and I have both personal and academic knowledge of the area. To do so would be to either assert that they and their rabbi are ignorant of their own religion, or that they are wilfully lying about their faith for some undisclosed motive.
P.S. The Sabbath has already concluded in my time zone. I only mention this because it's relevant to my assertion of authority above.