Business operators’ right to choose

Should Muslim cab drivers be entitled to refuse to carry passengers who are transporting alcohol? (Assume that the state has a legal rule that generally provides religious exemptions from generally applicable laws.) I gave this as an example of a normal controversy religious exemption controversy, but a commenter disagreed:

The cabbie is voluntarily offering an accommodation to the general public, choosing to associate with them, knowing full well they are religiously diverse. They can’t subsequently rescind that offer of accommodation after applying a religious litmus test to the particular member of the public taking them up on their offer.

To do that they need to limit their association to those who share their religious viewpoint; private car service with a strict [no alcohol] membership requirement or the like. But offer the general public an accommodation, can’t then rescind the offer because the member of the public doesn’t conform to a religious belief they don’t share.

I think this analysis is unsound, but I’ve found such arguments to be common enough that I thought I’d respond to them here.

1. To begin with, most of us, in a wide range of businesses, enjoy the freedom to choose what we allow on our property, and (within boundaries I’ll mention shortly) to choose not to do business with people who do things that we think are wrong. A lawyer may “voluntarily offer]” his services “to the general public,” but this doesn’t mean that he has to represent clients that engage in activities that he finds morally repugnant — for instance, he is free to choose not to represent bars or breweries. A plumber or a computer consultant may make the same choice. A restaurant may refuse to deliver pizza to an abortion clinic (see Part I of the opinion). A restaurant may refuse to let patrons bring alcohol to drink with dinner, even if state law doesn’t prohibit patrons from bringing alcohol this way, and even if the restaurant’s motivation is moral disapproval of alcohol rather than fear of rowdy patrons.

Likewise, businesses may generally impose dress codes on patrons. They may refuse to allow patrons who wear T-shirts containing messages that they see as repugnant. And the list could go on. As property owners, they are generally free to choose what to allow on their property.

Now it is true that most businesses in most states are barred from discriminating based on particular attributes of their patrons — race, sex, religion, ethnicity, and the like. But such anti-discrimination laws exist precisely because, otherwise, those businesses would be free to offer their accommodations to the public and yet to exclude members of the public with whom they don’t want to do business. (If businesses generally had to offer their services equally to everybody, period, a law specifically requiring businesses to offer such services without regard to race, sex, religion, and the like would be superfluous.) And when a business isn’t discriminating based on these patron attributes, its operators are free to choose not to do business with people who do things of which they disapprove.

2. Nor does it matter whether the business’s disapproval is based on religious beliefs, or on secular moral beliefs. Sam the secular plumber is free not to come out to fix the pipes at a butcher’s, because he believes that meat is murder, even though he otherwise offers his services to the public at large. Given this, Ron the religious plumber is equally free to do so, even if his motivation is that his religion condemns the killing of animals, or condemns the serving of pork.

Neither secular Sam nor religious Ron is allowed to discriminate based on client’s religion (in states that apply public accommodations laws to service providers such as plumbers); neither, for instance, may refuse to do plumbing at Catholics’ houses. But both are equally allowed to discriminate based on a client’s secular line of business, whether their own motivations stem from their secular moral codes or religious moral codes. Indeed, if the law were to allow Sam the freedom to choose based on his secular moral code, but deny Ron the freedom to choose based on his religious moral code, that itself would be religious discrimination against Ron.

3. This having been said, a minority of businesses is required to take all comers, at least unless it has a generally accepted business reason to reject someone. This has been pretty common in the transportation industry — railroads are a classic example — as well with regard to utilities, such as telephone companies. Historically, this has largely been justified by a sense that those businesses are monopolies, or close to it. (In the past, this has at times been said of inns as well, but back when the average town was much smaller and transportation much slower, an inn might well be the only one available to the typical traveler.) Licensing alone has not led to this status; lawyers, plumbers, and restaurants that serve liquor require licenses, but they aren’t treated as such “common carriers.” But taxicabs are generally treated as common carriers, by analogy to railroads, despite their lack of monopoly status. That is precisely why the cab drivers who want to not carry alcohol-carrying passengers are asking for an accommodation.

Yet those cab drivers aren’t looking to deny broad and well-established rights of all citizens to have access to all publicly available services. As I mentioned above, there is no such right. Rather, the cab drivers are seeking the same right that we lawyers, plumbers, restaurants, and pizza delivery services have — the right to say that we don’t want to (for instance) assist, even indirectly, in the distribution of alcohol or the performing of abortions.

To be sure, the cab drivers are looking for an exemption from a law that does apply to their specific line of business. But the whole point of religious exemption regimes, which more than half the states have (half of those by statute, and half by state courts’ interpretation of the state constitution), is that people who have religious objections to a requirement should sometimes get an exemption from that requirement.

You might think there shouldn’t be any such religious exemption regimes. But given that there are such regimes, Muslim cab drivers should be as entitled to use them as are Amish parents who don’t want to send their children to school past age 14, or Sabbatarians who want to get unemployment compensation even though they refuse to take jobs that require them to work Saturdays.

Under such regimes, the government must give exemptions from a law to people who believe that abiding by the law would be a sin, unless denying the exemption is necessary to serve a compelling government interest. I’m inclined to think that denying the cab drivers’ exemption is not so necessary. Even if there is a compelling government interest in preventing substantial hassles for customers, there are other ways of solving the problem — for instance, if no-alcohol cabs display “no alcohol” placards, a wine-bottle-carrying tourist can just go to the first cab in line with such a placard, rather than the first cab in line, period. Likewise, if the city is a hail-the-cab-on-the-street city (like New York, for instance, but not like Los Angeles), one could require these markers to be prominently visible, for instance using color-coded items on the cab’s roof (much as cabs already signal whether they are available or not).

These aren’t hard accommodations to make work, I think. They may involve some administrative burden on the government, but the premise of religious exemption laws is that some such burden is acceptable, and indeed better than a more efficient system that nonetheless offers no accommodation for religious objectors.

Cab drivers, then, would be free to stay in business while abiding by their religious beliefs. Passengers would still be able to get cabs. No compelling government interest would be substantially undermined. The point of religious exemption regimes is precisely to allow people to abide by their religious beliefs without going to jail or losing their livelihoods, so long as such exemptions aren’t too costly for society or for others.

Now if access to any business that “voluntarily offer[ed] an accommodation to the general public” — without regard to the business’s preferences about what to allow on its property — were seen as a sort of basic legal right, one might argue that there is indeed a compelling interest in preserving this right. This is indeed an argument often given for denying religious exemptions from anti-discrimination laws.

But, as I note in points 1 and 2 above, no such basic legal right has generally been recognized. Indeed, the dominant approach in our legal system is to leave businesspeople free to accommodate those people and behaviors that they want to accommodate, and not accommodate others (again, subject to anti-discrimination laws). The different treatment of taxicabs is a matter of convenience, and analogy to transportation monopolies.

Giving cab drivers a religious exemption that would put us in the same position with respect to cabs as we are with respect to plumbers, restaurants, or lawyers. Most of the time, the drivers will be glad to take our money, but there are some things some driver won’t do, so we have to turn to other drivers to do them. That’s a tolerable regime as to most service providers. I don’t see why it shouldn’t be tolerable for cab drivers.

* * *

(Note for the sake of completeness: Historically, judges often ordered lawyers to represent any indigent criminal defendant, and lawyers were required to comply with such orders, even if they would rather not represent that defendant, or would rather not represent criminal defendants at all. But this is rare nowadays, stems from the special role of lawyers as “officers of the court,” and in any event would not have applied in the civil case examples that I give in the post.)

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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