Religion & Antidiscrimination Law



Religion & Antidiscrimination Law

Week II: The Structure of Antidiscrimination Statutes

A) Protected Characteristics

Introduction. Every antidiscrimination statute lists one or more characteristics that cannot be the basis of decision-making for the conduct the statute addresses. Generally, the lists of characteristics are treated as “exclusive”: as in Kramarsky below, a plaintiff must prove discrimination on the basis of one of the listed characteristics to prevail. The only statute that I know of that operates differently is California’s Unruh Act. Cal. Civil Code §51 (SS14-15). See also Cal. Govt. Code §12955(d) (cross-referencing the Unruh Act).

Interesting cases can arise when the courts have to decide whether a particular form of discrimination falls within the definition of one of the listed characteristics. Examples of this problem can be found in the St. Francis and Shaare Tefile cases below. These cases involve the Civil Rights Act of 1866, which the Supreme Court earlier had read to address only discrimination on the basis of race.

( ( ( ( (

KRAMARSKY v. STAHL MANAGEMENT

401 N.Y.S.2d 943 (N.Y. Sup. 1977)

EDWARD J. GREENFIELD, Justice.

This is an application … for an order enjoining respondents from selling, renting, leasing, or otherwise disposing of Apartment 9J at 225 West 106th Street to anyone other than petitioner until final determination of a complaint against respondent Stahl Management now pending before the State Division of Human Rights.

The application is based upon a complaint of discrimination by one Judith Pierce, a black divorced woman, who contends that Stahl Management unlawfully discriminated against her by refusing to rent an apartment because of her race, sex and marital status. In support of that contention, she points to the willingness of the respondent to rent an apartment to a later white applicant.

Respondent denies any illegal discrimination insisting that Ms. Pierce was not turned down because she was black, female or divorced, but for other reasons. In support of this contention, he demonstrates that 30% of his apartments have been rented to blacks, including the last two for which there were both black and white applicants and that 60% of the apartments have been rented to unmarried persons. The reason for her rejection, the landlord contends, is that her application indicated that in the eyes of the landlord she would be an undesirable tenant.

The application form is a one page sheet in which Ms. Pierce indicated that she was employed as general counsel to the New York City Commission on Human Rights, that she had earned a salary of $28,000 plus a year and that she had previously been employed with the Legal Services Corporation. Under the space for Repairs and Remarks she had written in “Painting New Rulings”. Mr. Stahl, the individual who operated the respondent, candidly admits that that information on the application indicated that “she would be a source of trouble to me as a tenant.” Rather than a lawyer attuned to her legal rights, he would have preferred, all other things being equal, a person who was likely to be less informed and more passive.

The Human Rights Law (Executive Law, Art.15) provides in §296, Subdivision 5:

(a) It shall be an unlawful discriminatory practice for the owner, lessee, sub-lessee, assignee, or managing agent of, or other person having the right to sell, rent or lease a housing accommodation, constructed or to be constructed, or any agent or employee thereof:

(1) To refuse to sell, rent, lease or otherwise to deny to or withhold from any person or group of persons such a housing accommodation because of the race, creed, color, national origin, sex, or disability or marital status of such person or persons.

(2) To discriminate against any person because of his race, creed, color, national origin, sex, or disability or marital status in the terms, conditions or privileges of the sale, rental or lease of any such housing accommodation or in the furnishing of facilities or services in connection therewith.

Absent a supervening statutory proscription, a landlord is free to do what he wishes with his property, and to rent or not to rent to any given person at his whim. The only restraints which the law has imposed upon free exercise of his discretion is that he may not use race, creed, color, national origin, sex or marital status as criteria. So, regrettable though it may be, a landlord can employ other criteria to determine the acceptability of his tenants occupational, physical or otherwise. He may decide not to rent to singers because they are too noisy, or not to rent to bald-headed men because he has been told they give wild parties. He can bar his premises to the lowest strata of society, should he choose, or to the highest, if that be his personal desire.

Thus, this court concludes that there is nothing illegal in a landlord discriminating against lawyers as a group, or trying to keep out of his building intelligent persons, aware of their rights, who may give him trouble in the future. … Although the courts, in the interest of justice, will endeavor to facilitate to the fullest the legislative intent and public policy underlying antidiscrimination legislation, the facts and circumstances of this case do not warrant injunctive relief. The court is not persuaded that there is a reasonable likelihood that the charge of discrimination can be sustained. Accordingly, the application is denied and the temporary restraining order vacated.

← ( ( ( (

CIVIL RIGHTS ACT OF 1866

(42 U.S.C. §§1981-82)

§ 1981. Equal rights under the law

(a) All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

(b) For purposes of this section, the term "make and enforce contracts" includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.

(c) The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.

§ 1982. Property rights of citizens. All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.

← ( ( ( (

SAINT FRANCIS COLLEGE v. AL-KHAZRAJI

481 U.S. 604 (1987)

Justice WHITE delivered the opinion of the Court. Respondent, a citizen of the United States born in Iraq, was an associate professor at St. Francis College…. [H]e applied for tenure; the Board of Trustees denied his request…. He … sought administrative reconsideration of the tenure decision, which was denied…. [He filed an action against the college alleging, inter alia, a violation of 42 U.S.C. §1981. On d]efendants’ motion for summary judgment, [the judge] construed the pleadings as asserting only discrimination on the basis of national origin and religion, which §1981 did not cover. Even if racial discrimination was deemed to have been alleged, the District Court ruled that §1981 does not reach claims of discrimination based on Arabian ancestry. …

[T]he Court of Appeals held that respondent had alleged discrimination based on race and that although under current racial classifications Arabs are Caucasians, respondent could maintain his §1981 claim.2 Congress, when it passed what is now §1981, had not limited its protections to those who today would be considered members of a race different from the race of the defendant. Rather, the legislative history of the section indicated that Congress intended to enhance “at the least, membership in a group that is ethnically and physiognomically distinctive.” Section 1981, “at a minimum,” reaches “discrimination directed against an individual because he or she is genetically part of an ethnically and physiognomically distinctive sub-grouping of homo sapiens.” … We granted certiorari [in part to determine] whether a person of Arabian ancestry was protected from racial discrimination under §1981, and now affirm the judgment of the Court of Appeals. …

Although § 1981 does not itself use the word “race,” the Court has construed the section to forbid all “racial” discrimination in the making of private as well as public contracts. Petitioner college, although a private institution, was therefore subject to this statutory command. There is no disagreement among the parties on these propositions. The issue is whether respondent has alleged racial discrimination within the meaning of §1981.

Petitioners contend that respondent is a Caucasian and cannot allege the kind of discrimination § 1981 forbids. Concededly, McDonald [v. Santa Fe Trail Transportation Co., 427 U.S. 273 (1976),] held that white persons could maintain a §1981 suit; but that suit involved alleged discrimination against a white person in favor of a black, and petitioner submits that the section does not encompass claims of discrimination by one Caucasian against another. We are quite sure that the Court of Appeals properly rejected this position.

Petitioner’s submission rests on the assumption that all those who might be deemed Caucasians today were thought to be of the same race when §1981 became law in the 19th century; and it may be that a variety of ethnic groups, including Arabs, are now considered to be within the Caucasian race.4 The understanding of “race” in the 19th century, however, was different. Plainly, all those who might be deemed Caucasian today were not thought to be of the same race at the time §1981 became law.

In the middle years of the 19th century, dictionaries commonly referred to race as a “continued series of descendants from a parent who is called the stock,” N. Webster, An American Dictionary of the English Language 666 (1830), “[t]he lineage of a family,” 2 N. Webster, A Dictionary of the English Language 411 (1841), or “descendants of a common ancestor,” J. Donald, Chambers’ Etymological Dictionary of the English Language 415 (1871). The 1887 edition of Webster’s expanded the definition somewhat: “The descendants of a common ancestor; a family, tribe, people or nation, believed or presumed to belong to the same stock.” N. Webster, Dictionary of the English Language 589 (1887). It was not until the 20th century that dictionaries began referring to the Caucasian, Mongolian, and Negro races, 8 The Century Dictionary and Cyclopedia 4926 (1911), or to race as involving divisions of mankind based upon different physical characteristics. Webster’s Collegiate Dictionary 794 (3d ed. 1916). Even so, modern dictionaries still include among the definitions of race “a family, tribe, people, or nation belonging to the same stock.” Webster’s Third New International Dictionary 1870 (1971); Webster’s Ninth New Collegiate Dictionary 969 (1986).

Encyclopedias of the 19th century also described race in terms of ethnic groups, which is a narrower concept of race than petitioners urge. Encyclopedia Americana in 1858, for example, referred to various races such as Finns, gypsies, Basques, and Hebrews. The 1863 version of the New American Cyclopaedia divided the Arabs into a number of subsidiary races; represented the Hebrews as of the Semitic race, and identified numerous other groups as constituting races, including Swedes, Norwegians, Germans, Greeks, Finns, Italians, Spanish, Mongolians, Russians, and the like. The Ninth edition of the Encyclopedia Britannica also referred to Arabs, Jews, and other ethnic groups such as Germans, Hungarians, and Greeks, as separate races.

These dictionary and encyclopedic sources are somewhat diverse, but it is clear that they do not support the claim that for the purposes of §1981, Arabs, Englishmen, Germans, and certain other ethnic groups are to be considered a single race. We would expect the legislative history of §1981 ... to reflect this common understanding, which it surely does. The debates are replete with references to the Scandinavian races, as well as the Chinese, Latin, Spanish, and Anglo-Saxon races. Jews, Mexicans, blacks, and Mongolians were similarly categorized. Gypsies were referred to as a race. Likewise, the Germans:

Who will say that Ohio can pass a law enacting that no man of the German race ... shall ever own any property in Ohio, or shall ever make a contract in Ohio, or ever inherit property in Ohio, or ever come into Ohio to live, or even to work? If Ohio may pass such a law, and exclude a German citizen ... because he is of the German nationality or race, then may every other State do so.

There was a reference to the Caucasian race, but it appears to have been referring to people of European ancestry.

The history of the 1870 [Voting Rights] Act reflects similar understanding of what groups Congress intended to protect from intentional discrimination. It is clear, for example, that the civil rights sections of the 1870 Act provided protection for immigrant groups such as the Chinese. This view was expressed in the Senate. In the House, Representative Bingham described §16 of the Act, part of the authority for §1981, as declaring “that the States shall not hereafter discriminate against the immigrant from China and in favor of the immigrant from Prussia, nor against the immigrant from France and in favor of the immigrant from Ireland.”

Based on the history of §1981, we have little trouble in concluding that Congress intended to protect from discrimination identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics. Such discrimination is racial discrimination that Congress intended §1981 to forbid, whether or not it would be classified as racial in terms of modern scientific theory.5 The Court of Appeals was thus quite right in holding that §1981, “at a minimum,” reaches discrimination against an individual “because he or she is genetically part of an ethnically and physiognomically distinctive sub-grouping of homo sapiens.” It is clear from our holding, however, that a distinctive physiognomy is not essential to qualify for §1981 protection. If respondent on remand can prove that he was subjected to intentional discrimination based on the fact that he was born an Arab, rather than solely on the place or nation of his origin, or his religion, he will have made out a case under §1981. The judgment of the Court of Appeals is accordingly affirmed.

Justice BRENNAN, concurring. Pernicious distinctions among individuals based solely on their ancestry are antithetical to the doctrine of equality upon which this Nation is founded. Today the Court upholds Congress’ desire to rid the Nation of such arbitrary and invidious discrimination, and I concur in its opinion and judgment. I write separately only to point out that the line between discrimination based on “ancestry or ethnic characteristics,” and discrimination based on “place or nation of ... origin,” ibid., is not a bright one. It is true that one’s ancestry–the ethnic group from which an individual and his or her ancestors are descended–is not necessarily the same as one’s national origin–the country “where a person was born, or, more broadly, the country from which his or her ancestors came.” Espinoza v. Farah Manufacturing Co., 414 U.S. 86, 88 (1973). Often, however, the two are identical as a factual matter: one was born in the nation whose primary stock is one’s own ethnic group. Moreover, national origin claims have been treated as ancestry or ethnicity claims in some circumstances. For example, in the Title VII context, the terms overlap as a legal matter. See 29 CFR §1606.1 (1986) (national origin discrimination “includ[es], but [is] not limited to, the denial of equal employment opportunity because of an individual’s, or his or her ancestor’s, place of origin; or because an individual has the physical, cultural, or linguistic characteristics of a national origin group”); Espinoza, supra, at 89 (the deletion of the word ancestry from the final version of ... Title VII “was not intended as a material change, ... suggesting that the terms ‘national origin’ and ‘ancestry’ were considered synonymous”). I therefore read the Court’s opinion to state only that discrimination based on birthplace alone is insufficient to state a claim under §1981.

( ( ( ( (

SHAARE TEFILA CONGREGATION v. COBB

481 U.S. 615 (1987)

Justice WHITE delivered the opinion of the Court. On November 2, 1982, the outside walls of the synagogue of the Shaare Tefila Congregation in Silver Spring, Maryland, were sprayed with red and black paint and with large anti-Semitic slogans, phrases, and symbols. A few months later, the Congregation and some individual members brought this suit ... , alleging that defendants’ desecration of the synagogue had violated 42 U.S.C. §§1981 [and] 1982. … [T]he District Court dismissed all the claims. The Court of Appeals affirmed in all respects. … [W]e now reverse the judgment of the Court of Appeals.

Section 1982 guarantees all citizens of the United States, “the same right ... as is enjoyed by white citizens ... to inherit, purchase, lease, sell, hold, and convey real and personal property.” The section forbids both official and private racially discriminatory interference with property rights. Petitioners’ allegation was that they were deprived of the right to hold property in violation of §1982 because the defendants were motivated by racial prejudice. They unsuccessfully argued … that Jews are not a racially distinct group, but that defendants’ conduct is actionable because they viewed Jews as racially distinct and were motivated by racial prejudice. The Court of Appeals held that §1982 was not “intended to apply to situations in which a plaintiff is not a member of a racially distinct group but is merely perceived to be so by defendants.” The Court of Appeals believed that “[b]ecause discrimination against Jews is not racial discrimination,” the District Court was correct in dismissing the §1982 claim.

We agree with the Court of Appeals that a charge of racial discrimination within the meaning of §1982 cannot be made out by alleging only that the defendants were motivated by racial animus; it is necessary as well to allege that defendants’ animus was directed towards the kind of group that Congress intended to protect when it passed the statute. To hold otherwise would unacceptably extend the reach of the statute.

We agree with petitioners, however, that the Court of Appeals erred in holding that Jews cannot state a §1982 claim against other white defendants. That view rested on the notion that because Jews today are not thought to be members of a separate race, they cannot make out a claim of racial discrimination within the meaning of §1982. That construction of the section we have today rejected in Saint Francis. … [T]hat case observed that definitions of race when §1982 was passed were not the same as they are today, and concluded that the section was “intended to protect from discrimination identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics.” As Saint Francis makes clear, the question before us is not whether Jews are considered to be a separate race by today’s standards, but whether, at the time §1982 was adopted, Jews constituted a group of people that Congress intended to protect. It is evident from the legislative history of the section reviewed in Saint Francis College, a review that we need not repeat here, that Jews and Arabs were among the peoples then considered to be distinct races and hence within the protection of the statute. Jews are not foreclosed from stating a cause of action against other members of what today is considered to be part of the Caucasian race.

( ( ( ( (

(B) Operative Provisions (Conduct)

(1) Introduction. The operative provisions of the statute prohibit particular conduct or types of decisions if made on the basis of one of the protected characteristics. Although some cases discuss whether particular conduct was intended to be covered by the statute, most reported cases address whether the plaintiff provided sufficient evidence of discriminatory intent (an issue we’ll discuss in Week III). Skim the statutory provisions listed below to get a sense of the kinds of conduct that can fall under the statutes. Then take a look at the materials that follow on the question of when an online housing provider can be liable for “publishing” discriminatory ads under 42 U.S.C. §3604(c), the advertising provision of the Fair Housing Act.

( ( ( ( (

(2) Sample Statutes: Operative Provisions

(a) Federal Statutes

(i) Employment: 42 U.S.C. C2000e-2(a)(1) & (2); §2000e-3(a) & (b) (SS4, 7)

(ii) Housing: 42 U.S.C. §§3604(a)-(e) &3617 (SS9-10, 11)

(iii) Public Accommodations: 42 U.S.C. §2000a(a) (SS1)

(b) State Statutes

(i) Employment

• Alaska Stat. §18.80.220 (a) (SS12)

• Cal. Govt Code §12940 (a), (c), (d), (h), (j)(1), (k) & (l) (SS19-21)

• Wisc. Stat. §111.322 (SS35-36)

(ii) Housing

• Alaska Stat. §18.80.240 & 260 (SS13-14)

• Cal Govt Code §§12955 (a)-(l) & 12955.7 (SS21-22, 23)

• Wisc. Stat. §§106.50 (2) & (2m) (SS31-32)

(iii) Public Accommodations

• Alaska Stat. §18.80.230 (a)(1) & (2) (SS13)

• Cal. Civil Code §§51(b) & 51.5 (SS14-15)

• Fla. Stat. §§760.08 & 760.60(SS24, SS29)

• Wisc. Stat. §§106.52(3)(a)(S33)

← ( ( ( (

Note: §3604(c) and Online Advertising

In prior Housing Discrimination classes, we have discussed whether an online listing service would be liable under §3604(c) for discriminatory advertisements posted on its website by third parties. I suggested that the difficult statutory question was whether it made sense to treat the online service as analogous to a newspaper and describe its role as “publishing” the ad. Two recent federal Court of Appeals cases have addressed the liability of online listing services for discriminatory housing ads, although the crucial statute has turned out to be Communications Decency Act. Here are brief descriptions of the statute and the two cases:

(a) The Communications Decency Act of 1996 (CDA) is a complex federal statute containing a wide range of measures largely aimed at finding ways to control access to pornography and other adult content on the internet. One goal of the statute was to ensure that internet service providers like AOL and Netscape would not be held liable for obscene or indecent material on websites accessed by their customers via their service. The relevant provision is 47 U.S.C. §230(c)(1):

(1) Treatment of publisher or speaker. No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

An “information content provider,” is defined as someone who is “responsible, in whole or in part, for the creation or development of” the offending content. §230(f)(3).

(b) Chicago Lawyers' Committee for Civil Rights Under Law v. Craigslist, 519 F.3d 666 [“the citation of the beast”] (7th Cir. 2008) (Easterbrook, C.J.)

i. The defendant “provides an electronic meeting place for those who want to buy, sell, or rent housing (and many other goods and services)” on the internet. Some of the advertisements for housing posted on the defendant’s website “proclaim ‘NO MINORITIES’ and ‘No children’, along with multiple variations, bald or subtle.”

ii. The plaintiff argued that the defendant should be liable under §3604(c) for discriminatory ads posted on its website. The court said that the only plausible way to fit the defendant into the language of §3604(c) would be to find that Craigslist “published” the ads others posted on its website. However, the court did not find it necessary to rule on this issue.

iii. Instead, the court held that the plain language of the CDA meant that Craigslist could not be liable under the FHA as publisher of the ads: “No provider … of an interactive computer service [Craigslist] shall be treated as the publisher … of any information [the offending ads] provided by another information content provider [the person who created or developed the ad].

iv. Two interesting asides:

A) The court noted that it would be nearly impossible for Craigslist to monitor online posting to screen out discriminatory ads. “Every month more than 30 million notices are posted to the Craigslist system. Fewer than 30 people[!!], all based in California, operate the system, which offers classifieds and forums for 450 cities.”

B) Judge Easterbrook noted the existence of an issue I have worried about for some time, which is the constitutionality of forbidding advertisements truthfully describing legal transactions:

“Many who offer housing for sale or rent [on Craigslist] satisfy 42 U.S.C. §3603(b)(1), which exempts ‘any single-family house sold or rented by an owner ... [who] does not own more than three such single-family houses.’ Although this exemption does not take single-family homes outside the scope of §3604(c), any rule that forbids truthful advertising of a transaction that would be substantively lawful encounters serious problems under the first amendment.”

(c) Fair Housing Council of San Fernando Valley v. , 489 F.3d 921 (9th Cir. 2008) (en banc) (Kozinski, C.J.)

i. This case again involved an online listing service alleged to have violated §3604(c) as well as California’s state fair housing laws. This defendant also relied on the CDA §230(c)(1) as a defense, but here was unsuccessful.

ii. The defendant “operates a website designed to match people renting out spare rooms with people looking for a place to live. At the time of the district court's disposition, [the] website featured approximately 150,000 active listings and received around a million page views a day. … Before subscribers can search listings or post housing opportunities on [the] website, they must create profiles, a process that requires them to answer a series of questions. … [The defendant] requires each subscriber to disclose his sex, sexual orientation and whether he would bring children to a household. Each subscriber must also describe his preferences in roommates with respect to the same three criteria: sex, sexual orientation and whether they will bring children to the household.”

iii. The court held that §230(c)(1) did not protect the defendant because, unlike Craigslist, it was not the passive transmitter of content created by others. Instead, it was itself an “information content provider,” because it was “responsible, in whole or in part, for the creation or development of” the offending content. §230(f)(3). Indeed, the defendant’s website would not allow a subscriber to search or post listings until the subscriber had filled out entries in a drop-down screen listing the subscriber’s preferences with regard to protected characteristics and this process created the content in question.

( ( ( ( (

(C) Key Definitions

1. Introduction: As with any modern statute, much of the interesting work in antidiscrimination laws is found in the definitions. Skim through the definitional sections listed below to see what they do. Two important concerns about definitional provisions. First, the existence of a definition doesn’t always result in clear answers. The question of what is a “public accommodation” (defined in 42 U.S.C. §2000a(b)) and what is a “disability” or “handicap” (defined in provisions you don’t have) remain heavily litigated despite apparent precision.

Second, in the definitions section, legislators can hide extensive defenses or even entirely separate causes of action. For example, 42 U.S.C. §2000e(b) defines “employer” as someone engaged in an industry affecting commerce “who has fifteen or more employees” for at least twenty weeks a year. This effectively creates an exemption from Title VII for employers with fewer than 15 employees. It also exempts employers who only hire significant numbers of workers for two or three months a year, which might include summer resorts or certain kinds of agricultural businesses. 42 U.S.C. §2000e(j) provides a broad definition of religion that includes “observance and practice, as well as belief,” then adds the language that gives rise to separate affirmative rights for accommodation of those beliefs.

(2) Sample Statutes: Definitions

(a) Federal Statutes13)

(i) Employment: (employer); §2000e(f) (employee); (religion); §2000e(k) (sex) (SS3)

(ii) Housing: 42 U.S.C. §3602(b) (dwelling); §3603(c) (business of selling or renting) (SS8-9)

(iii) Public Accommodations: 42 U.S.C. §2000a(b) (place of public accommodation) (SS1-2)

(b) State Statutes

(i) Employment

• Cal Govt Code §12926(o) (religion, creed, observance, belief) (SS17)

• Cal. Govt Code §12962.2 (religious corporation & duties; employer) (SS17-18)

• Wisc. Stat §111.32 (3m), (12) (12m), (13m) (creed; marital status; religious association; sexual orientation) (SS35)

(ii) Housing

• Alaska Stat. §18.80.300(1) (blockbusting) (SS14)

• Cal. Govt Code §12927 (c)(1) (discrimination)

• Wisc. Stat. §106.50(1m)(h) (discriminate)

(iii) Public Accommodations

• Alaska Stat. §18.80.300(16) (public accommodation) (SS14)

• Cal. Civil Code §51(c)(3) (religion) (SS15)

• Fla Stat. §760.02(11) (public accommodations) (SS24)

• Wisc. Stat. §106.52(d) & (e)(1) (public accommodations)

( ( ( ( (

(D) Statutory Defenses

Statutes that create new causes of action frequently contain provisions describing defenses to, or limits on, the new legal claims. For the purposes of this class, I’d like to divide the statutory defenses into three groups:

1) Explicitly Religious Defenses: Defenses provided specifically for religious organizations or to protect the religious interests of individual defendants. Some examples include:

(a) Federal Statutes:

(i) Employment:

• 42 U.S.C. §2000e-1(a) (religious organizations) (SS4)

• 42 U.S.C. §2000e-2(e)(1) (bona fide qualification) (SS4)

• 42 U.S.C. §2000e-2(e)(2) (religious educational org.) (SS5)

(ii) Housing: 42 U.S.C. §3607(a) (religious organizations) (SS10)

(b) State Statutes:

(i) Employment

• Cal. Govt Code §12922 (religious orgs.) (SS16)

• Cal. Govt Code §12926(d) (religious non-profits) (SS17)

• Wisc. Stat/ §111.337 (2)(a) & (am) (religious orgs.)(SS36)

(ii) Housing

• Cal. Govt Code §12955.4 (religious orgs.)(SS22)

• Fla. Stat. §760.29(2) (religious orgs.) (SS29)

(iii) Public Accommodations

• Fla. Stat. §760.60 (religious orgs.) (SS29)

2) Defenses Arguably Related to Religious Concerns: These are defenses that do not specifically mention religion, but may serve to protect the religious interests of particular defendants. For example, the exclusion of private clubs from public accommodations and housing statutes allows religiously-based groups to operate clubs limited to members of their own religion. Some examples include:

(a) Federal Statutes:

(i) Employment: 42 U.S.C. §2000e(b) (minimum size) (SS3)

(ii) Housing:

• 42 U.S.C. §3603(b)(1) (single-family house)

• 42 U.S.C. §3603(b)(1) (small boarding house)

• 42 U.S.C. §3607(a) (private club)

(iii) Public Accommodations: 42 U.S.C. §2000a(e) (private club) (SS2)

(b) State Statutes:

(i) Employment

• Alaska Stat. §18.80.300(5) (private club) (SS14)

• Alaska Stat. §18.80.300(4) (domestic servants) (SS14)

• Cal. Govt Code 12926(c) § (family members) (SS16)

• Wisc. Stat. §111.32(6)(b) (social club)

(ii) Housing

• Cal Govt Code §12927(c)(2) (shared living space)

• Wisc. Stat. §106.50(5m)(em) (shared living space)

(iii) Public Accommodations

• Alaska Stat. §18.80.230(b) (physical fitness facility) (SS13)

• Fla. Stat. §760.07 (lodge halls)

• Wisc. Stat. §106.52(1)(e)(2) (nonprofit org for members/guests) (S33)

• Wisc. Stat. §106.52(3)(b)-(e)(single-sex dorms, toilets; dressing rooms, showers; shelters; fitness facilities) (SS33-34)

3) General Defenses: Provisions that create defenses to some claims of religious discrimination under the statute that seem entirely unrelated to protecting defendant’s religious interests. For example, the exclusion of state legislators and their staffs from Title VII seems to be about protecting the state governmental process and the prerogatives of elected officials, not any kind of privacy or personal interests. Some examples include:

(a) Federal Statutes: Employment:

• 42 U.S.C. §2000e(f) (elected officials & staff) (SS5)

• 42 U.S.C. §2000e-11 (veterans’ rights) (SS8)

( ( ( ( (

(E) Introduction to Key Issues

(1) Introduction to Key Issue #6: Evaluating Religious Beliefs

(Revisited & Expanded)

When individuals or organizations request accommodations or exemptions based on their religious beliefs, should the legal system try to evaluate the sincerity of the beliefs in question? How? Should the legal system try to evaluate the relative importance of the beliefs in question? How? Should it matter if the belief in question is unique to the individual in question as opposed to recognized doctrine of an established religious organization?

a. Are ordinary fact-finders well-equipped to determine the sincerity of religious beliefs?

b. What happens if someone says, “Most Baptists don’t believe this, but I do,” or “My extensive discussions with the Six Nature Goddesses who reign over Northern New Jersey persuade me that…?” Can we avoid bias in favor of recognized doctrines of mainstream religions? Should we try to avoid that bias?

c. A strong religious belief can manifest in a variety of ways. Below is a list of possible decisions related to a strong religious belief opposing abortion. Do you see any reason to treat some of these decisions differently than others:

1) A refusal by a medical professional to participate in performing abortions.

2) A refusal by a hospital run by a religious organization to hire medical professionals who have performed abortions in the past.

3) A refusal by a private landlord to rent housing to a medical professional whose current employment includes performing abortions.

4) A refusal by a private landlord to rent housing to a woman who has had an abortion.

5) A refusal by a religious organization to hire a woman who has had an abortion for a non-religious position.

6) A refusal by an IRS employee to handle applications for non-profit status for organizations that perform or advocate abortions (assume there are other employees who can handle the applications in question).

7) A refusal by a college run by a religious organization to hire professors who have advocated abortion rights in their scholarly writings.

8) A refusal by a private hotel owner to rent rooms to an organization that advocates abortion rights.

( ( ( ( (

U.S. v. Meyers

95 F.3d 1475 (10th Cir. 1996)

BARRETT, Senior Circuit Judge. David Meyers (Meyers) appeals from his conviction and sentence entered following a jury trial wherein he was found guilty of conspiracy to possess with intent to distribute and to distribute marijuana… and aiding and abetting possession with intent to distribute marijuana….

Before trial, Meyers filed numerous motions including motions to dismiss based on religious freedom under … the Religious Freedom Restoration Act, 42 U.S.C. §2000bb et. seq. (RFRA). At the hearing on Meyers’ religious freedom defense, Meyers testified that he is the founder and Reverend of the Church of Marijuana and that it is his sincere belief that his religion commands him to use, possess, grow and distribute marijuana for the good of mankind and the planet earth. After a careful and thorough analysis, the district court … that Meyers’ beliefs did not constitute a religion for purposes of the RFRA. … Therefore, the court denied his motion to raise a RFRA defense. The jury found Meyers guilty on both counts and he was sentenced to thirty-three months imprisonment, three years supervised release, and assessed $100. …

On appeal, … Meyers argues that the district court erred in refusing to recognize his interpretation of his own religion and in refusing to give his beliefs the status of religion under the RFRA. …

The RFRA provides that “[g]overnment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.” §2000bb-1(a). Subsection (b) provides that:

Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—

(1) is in furtherance of a compelling governmental interest; and

(2) is the least restrictive means of furthering that compelling governmental interest.

42 U.S.C. §2000bb-1(b).

Under the RFRA, a plaintiff must establish, by a preponderance of the evidence, three threshold requirements to state a prima facie free exercise claim. Thiry v. Carlson, 78 F.3d 1491, 1494 (10th Cir. 1996). The governmental action must (1) substantially burden, (2) a religious belief rather than a philosophy or way of life, (3) which belief is sincerely held by the plaintiff. Id. The government need only accommodate the exercise of actual religious convictions. Werner v. McCotter, 49 F.3d 1476, 1479 n.1 (10th Cir.) Once the plaintiff has established the threshold requirements by a preponderance of the evidence, the burden shifts to the government to demonstrate that the challenged regulation furthers a compelling state interest in the least restrictive manner. Werner, 49 F.3d at 1480 n.2.

Our review of the requirements, although largely factual in nature, presents mixed questions of fact and law. Thiry, 78 F.3d at 1495. We review the meaning of the RFRA de novo, including the definitions as to what constitutes substantial burden and what constitutes religious belief, and the ultimate determination as to whether the RFRA has been violated. Id. Sincerity is a factual matter and, as with historical and other underlying factual determinations, we defer to the district court’s findings, reversing only if those findings are clearly erroneous. Id.

There is no dispute that Meyers’ beliefs are sincerely held and that they are substantially burdened by [his criminal convictions]. The issue is whether his sincerely held beliefs are “religious beliefs,” rather than a philosophy or way of life. In analyzing this issue, the district court examined the cases that have delved into the question of “what is religion” and catalogued the many factors used to determine whether a set of beliefs is religious in nature.[1] The court then used its list of factors to examine Meyers’ beliefs to determine if his beliefs fit the factors sufficiently to be included in the realm of “religious beliefs.”

Keeping in mind that the threshold for establishing the religious nature of his beliefs is low, the court considered the following factors:

1. Ultimate Ideas: Religious beliefs often address fundamental questions about life, purpose, and death. As one court has put it, “a religion addresses fundamental and ultimate questions having to do with deep and imponderable matters.” Africa, 662 F.2d at 1032. These matters may include existential matters, such as man’s sense of being; teleological matters, such as man’s purpose in life; and cosmological matters, such as man’s place in the universe.

2. Metaphysical Beliefs: Religious beliefs often are “metaphysical,” that is, they address a reality which transcends the physical and immediately apparent world. Adherents to many religions believe that there is another dimension, place, mode, or temporality, and they often believe that these places are inhabited by spirits, souls, forces, deities, and other sorts of inchoate or intangible entities.

3. Moral or Ethical System: Religious beliefs often prescribe a particular manner of acting, or way of life, that is “moral” or “ethical.” In other words, these beliefs often describe certain acts in normative terms, such as “right and wrong,” “good and evil,” or “just and unjust.” The beliefs then proscribe those acts that are “wrong,” “evil,” or “unjust.” A moral or ethical belief structure also may create duties -- duties often imposed by some higher power, force, or spirit -- that require the believer to abnegate elemental self-interest.

4. Comprehensiveness of Beliefs: Another hallmark of “religious” ideas is that they are comprehensive. More often than not, such beliefs provide a telos, an overreaching array of beliefs that coalesce to provide the believer with answers to many, if not most, of the problems and concerns that confront humans. In other words, religious beliefs generally are not confined to one question or a single teaching. Africa, 662 F.2d at 1035.

5. Accoutrements of Religion: By analogy to many of the established or recognized religions, the presence of the following external signs may indicate that a particular set of beliefs is “religious”:

a. Founder, Prophet, or Teacher: Many religions have been wholly founded or significantly influenced by a deity, teacher, seer, or prophet who is considered to be divine, enlightened, gifted, or blessed.

b. Important Writings: Most religions embrace seminal, elemental, fundamental, or sacred writings. These writing often include creeds, tenets, precepts, parables, commandments, prayers, scriptures, catechisms, chants, rites, or mantras.

c. Gathering Places: Many religions designate particular structures or places as sacred, holy, or significant. These sites often serve as gathering places for believers. They include physical structures, such as churches, mosques, temples, pyramids, synagogues, or shrines; and natural places, such as springs, rivers, forests, plains, or mountains.

d. Keepers of Knowledge: Most religions have clergy, ministers, priests, reverends, monks, shamans, teachers, or sages. By virtue of their enlightenment, experience, education, or training, these people are keepers and purveyors of religious knowledge.

e. Ceremonies and Rituals: Most religions include some form of ceremony, ritual, liturgy, sacrament, or protocol. These acts, statements, and movements are prescribed by the religion and are imbued with transcendent significance.

f. Structure or Organization: Many religions have a congregation or group of believers who are led, supervised, or counseled by a hierarchy of teachers, clergy, sages, priests, etc.

g. Holidays: As is etymologically evident, many religions celebrate, observe, or mark “holy,” sacred, or important days, weeks, or months.

h. Diet or Fasting: Religions often prescribe or prohibit the eating of certain foods and the drinking of certain liquids on particular days or during particular times.

I. Appearance and Clothing: Some religions prescribe the manner in which believers should maintain their physical appearance, and other religions prescribe the type of clothing that believers should wear.

j. Propagation: Most religious groups, thinking that they have something worthwhile or essential to offer non-believers, attempt to propagate their views and persuade others of their correctness. This is sometimes called “mission work,” “witnessing,” “converting,” or proselytizing.

The district court emphasized that “it cannot rely solely on established or recognized religions to guide it in determining whether a new and unique set of beliefs warrants inclusion” and that “no one of these factors is dispositive, and that the factors should be seen as criteria that, if minimally satisfied, counsel the inclusion of beliefs within the term ‘religion.’” However, in accord with Yoder [v. Wisconsin], the court noted that “[p]urely personal, political, ideological, or secular beliefs probably would not satisfy enough criteria for inclusion.” See Yoder, 406 U.S. at 216 (philosophical and personal beliefs are secular beliefs); Africa, 662 F.2d at 1036 (finding beliefs are secular not religious); Berman, 156 F.2d at 380-81 (beliefs which are moral and social are not religious); Church of the Chosen People, 548 F. Supp. at 1253 (beliefs which are sexual and secular are not religious).

After carefully examining Meyers’ beliefs derived from his testimony, the district court concluded that his beliefs were secular and, thus, did not constitute a “religion” for RFRA purposes. The court concluded that: Marijuana’s medical, therapeutic, and social effects

are secular, not religious.... Here, the Court cannot give Meyers’ “religious” beliefs much weight because those beliefs appear to be derived entirely from his secular beliefs. In other words, Meyers’ secular and religious beliefs overlap only in the sense that Meyers holds secular beliefs which he believes so deeply that he has transformed them into a “religion.”

While Meyers may sincerely believe that his beliefs are religious, this Court cannot rely on his sincerity to conclude that his beliefs rise to the level of a “religion” and therefore trigger RFRA’s protections. Meyers is, of course, absolutely free to think or believe what he wants. If he thinks that his beliefs are a religion, then so be it. No one can restrict his beliefs, and no one should begrudge him those beliefs. None of this, however, changes the fact that his beliefs do not constitute a “religion” as that term is uneasily defined by law. Were the Court to recognize Meyers’ beliefs as religious, it might soon find itself on a slippery slope where anyone who was cured of an ailment by a “medicine” that had pleasant side-effects could claim that they had founded a constitutionally or statutorily protected religion based on the beneficial “medicine.”

Finally, the court noted that “Meyers’ professed beliefs have an ad hoc quality that neatly justify his desire to smoke marijuana.” We agree with the district court. Under the district court’s thorough analysis of the indicia of religion, which we adopt, we hold that Meyers’ beliefs more accurately espouse a philosophy and/or way of life rather than a “religion.” The district court did not err in prohibiting Meyers’ religious freedom defense. …

BRORBY, Circuit Judge, respectfully dissenting. Because I do not believe it is the proper role of the court to establish a factor-driven test to be used to define what a religion is, I respectfully dissent from my colleagues. The ability to define religion is the power to deny freedom of religion.

The ethereal and personal nature of religion has posed problems for most courts that have attempted to define it. See Wiggins v. Sargent, 753 F.2d 663, 666 (8th Cir. 1985) (“The determination of whether a belief is religious or not is an extremely delicate task which must be approached with caution.”); Africa v. Pennsylvania, 662 F.2d 1025, 1031 (3rd Cir. 1981) (“[j]udges are ill-equipped to examine the breadth and content of an avowed religion”), cert. denied, 456 U.S. 908 (1982); United States v. Kauten, 133 F.2d 703, 708 (2d Cir. 1943) (recognizing that the definition of religion “is found in the history of the human race and is incapable of compression into a few words”); see also Brown v. Dade Christian Schools, Inc., 556 F.2d 310 (5th Cir. 1977) (judges filed two concurrences and two dissenting opinions in a case attempting to define religion in order to determine whether a religious school’s policy of racial discrimination was religious or social or political in nature), cert. denied, 434 U.S. 1063 (1978).

In Wisconsin v. Yoder, 406 U.S. 205, 215-16 (1972), the Supreme Court held that religious beliefs are distinct from philosophical and personal choices but failed to provide a test or a definition against which lower courts could hold the religious claims of petitioners to determine whether the claims warrant constitutional protection. Many courts have felt compelled by the distinction made in Yoder to establish a definition of religion. See United States v. Ward, 989 F.2d 1015, 1017 (9th Cir. 1992); Quaring v. Peterson, 728 F.2d 1121, 1123 (8th Cir. 1984), aff’d, 472 U.S. 478 (1985); Africa, 662 F.2d at 1031. We, however, had declined to do so until now. In Werner v. McCotter, 49 F.3d 1476, 1479 n.1 (10th Cir.), cert. denied, 115 S. Ct. 2625 (1995), we recognized the distinction in Yoder and then found “[a] plaintiff, however, need not hew to any particular religious orthodoxy; it is enough for the plaintiff to demonstrate that a government has interfered with the exercise or expression of her or his own deeply held faith.” Id. at 1480.

I believe an approach that prevents the courts from evaluating the orthodoxy and expression of the individual is the approach most in keeping with the mandates of the Constitution and the Supreme Court. For, it seems to me that the free exercise of religion which we are all guaranteed by the First Amendment necessarily includes the rights of individuals to define their own religion.

Accordingly, it is an unproductive and unnecessarily invasive exercise for the courts to attempt to evaluate an individual’s religious claims and practices against any set standard of preconceived notions of what types of religious beliefs are valid of being recognized by the courts. In fact, in the conscientious objector context, the Supreme Court has held

“Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs. Religious experiences which are as real as life to some may be incomprehensible to others.” Local boards and courts in this sense are not free to reject beliefs because they consider them “incomprehensible.”

United States v. Seeger, 380 U.S. 163, 184-85 (1965) (quoting United States v. Ballard, 322 U.S. 78, 86 (1944)). By attempting to evaluate another’s religion with a factor-driven test we have essentially gutted the Free Exercise Clause of its meaning and are ignoring the Supreme Court’s cautionary words that a person’s views can be “incomprehensible” to the court and still be religious in his or her “own scheme of things.” Id.

In an early opinion addressing the Constitutional meaning of “religion,” the Supreme Court first recognized that the word religion is not defined in the Constitution and then turned to Thomas Jefferson’s views that

“religion is a matter which lies solely between man and his God; that he owes account to none other for his faith or his worship; that the legislative powers of the government reach actions only, and not opinions, -- I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion or prohibiting the free exercise thereof,’ thus building a wall of separation between church and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore man to all his natural rights, convinced he has no natural right in opposition to his social duties.”

Reynolds v. United States, 98 U.S. 145, 164 (1878). The Court then held that Jefferson’s words “may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured. Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.” Id.; see also, Ballard, 322 U.S. at 87 (noting the intent of the “fathers of the Constitution” to provide for the “the widest possible toleration of conflicting views” and protection of religious beliefs, even those deemed incredible or preposterous by most people); Davis v. Beason, 133 U.S. 333, 342 (1890) (“[w]ith man’s relations to his Maker and the obligations he may think they impose, and the manner in which an expression shall be made by him of his belief on those subjects, no interference can be permitted”). The Court expressed the same sentiment in Cantwell v. Connecticut, 310 U.S. 296, 303-04 (1940), when it held

The constitutional inhibition of legislation on the subject of religion has a double aspect. On the one hand, it forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship. Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. On the other hand, it safeguards the free exercise of the chosen form of religion. Thus the Amendment embraces two concepts, -- freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be.

The absoluteness of the freedom to believe and the freedom to exercise a chosen form of religion is significantly diluted by a court sponsored inquiry into what the individual believes and how he or she expresses those beliefs. Although the factors provided by the majority opinion arguably are content neutral, they still require an individual to provide evidence concerning what he or she believes and how he or she expresses those beliefs so that the courts may then judge whether the beliefs and practices are acceptable enough to be labeled a “religion” under our definition. Such scrutiny clearly usurps the individual’s right to believe and to express those beliefs however he or she chooses.

The Supreme Court has also cautioned that a determination of what is a religious belief or practice is “not to turn upon a judicial perception of the particular belief or practice in question; religious beliefs need not be acceptable, logical, consistent or comprehensible to others in order to merit First Amendment protection.” Thomas v. Review Bd. of Indiana Employment Sec. Div., 450 U.S. 707, 714 (1981). Furthermore, “it is no business of courts to say that what is a religious practice or activity for one group is not religion under the protection of the First Amendment.” Fowler v. Rhode Island, 345 U.S. 67, 70 (1953); see also Hernandez v. Commissioner, 490 U.S. 680, 693 (1989) (“under the First Amendment, the IRS can reject otherwise valid claims of religious benefit only on the ground that a taxpayers’ alleged beliefs are not sincerely held, but not on the grounds that such beliefs are inherently irreligious”). By applying a broad factor- driven test as advocated by the majority opinion, the subjective perceptions of the court are necessarily invoked in evaluating whether what the individual claims to be religious is indeed religious. It also requires the court to judge the practices of the individual to see if they are indeed “religious.” This test clearly violates the spirit, if not the intent, of the First Amendment.

The Second Circuit relied on the works of American philosopher William James to define religion as:

“the feelings, acts, and experiences of individual men in their solitude, so far as they apprehend themselves to stand in relation to whatever they may consider the divine.” W. James, The Varieties of Religious Experience 31 (1910). In referring to an individual’s relation to what he considers the divine, Professor James used the word ‘divine’ in its broadest sense as denoting any object that is godlike, whether it is or is not a specific deity. Id. at 34. Therefore, under the Religion Clauses, everyone is entitled to entertain such view respecting his relations to what he considers the divine and the duties such relationship imposes as may be approved by that person’s conscience, and to worship in any way such person thinks fit so long as this is not injurious to the equal rights of others.

United States v. Moon, 718 F.2d 1210, 1227 (2d Cir. 1983), cert. denied, 466 U.S. 971 (1984). I believe this definition comes the closest to capturing the inherently elusive, spiritual and personal nature of religion. I also believe that under such a definition it is inappropriate, if not impossible, to evaluate or analyze the religious beliefs of an individual under a factor-driven approach. The appropriateness of the above definition lies in its openness, which also makes it unworkable as a standard for those seeking concrete guidance in this area.

It seems to me the better practice is not to engage in any type of an attempt to define religion and instead to assume, without deciding, the validity of an individual’s sincerely held religious beliefs for purposes of constitutional protection. See Smith v. Board of Sch. Comm’rs of Mobile County, 827 F.2d 684, 689 (11th Cir. 1987) (assuming secular humanism is a religion for purposes of the Establishment Clause); United States v. Middleton, 690 F.2d 820, 824 (11th Cir. 1982) (assuming Ethiopian Zion Coptic Church is a valid religion), cert. denied, 460 U.S. 1051 (1983); see also Jones v. Bradley, 590 F.2d 294, 296-97 (9th Cir. 1979) (assuming members of the Universal Life Church are entitled to First Amendment protection). Under this approach if an individual makes a claim that a government law substantially burdens his or her sincere religious beliefs I would assume the validity of the religion without analyzing the tenets or practices of the religion to see if they fit some preconceived vision of what a religion is. This approach may seem radical; however, it is the only way we can assure an individual the absolute freedom to worship what he or she chooses in the way in which he or she chooses. It is important to note that such a practice would not send us down a “slippery slope” or create a mass shield which any criminal could use to thwart prosecution for crimes done in the name of religion. It has never been the law in this country that religious beliefs prevent the government from regulating criminal or other harmful actions of individuals. Cantwell, 310 U.S. at 303.

Under the Religious Freedom and Restoration Act, after raising the defense of religion, the individual must show that his or her religious beliefs are sincerely held and were substantially burdened. If this showing is made, then the government may still prevail if it shows that such burden is necessary to further a compelling government interest and that the law is the least restrictive means of furthering that interest. 42 U.S.C. §2000bb-1. This law enforces the absolute freedom of the individual to believe and worship whatever he or she chooses, but clearly prevents him or her from freely acting on these beliefs in ways that are harmful to others.

In this case, I would assume the validity of Mr. Meyers’ religious beliefs and affirm the district court’s findings that these beliefs are sincerely held and substantially burdened by the laws in question. Although I am confident that the government will have no problem meeting its burden of proof, Olsen v. DEA, 878 F.2d 1458, 1462-63 (D.C. Cir. 1989) (government has a compelling interest in regulating the use of marijuana and is not required to accommodate sacramental use), cert. denied, 495 U.S. 906 (1990), it has not yet been given an opportunity to do so. Therefore, in accordance with the requirements of 42 U.S.C. §2000bb-1, I would reverse the district court’s findings that Mr. Meyers’ sincerely held beliefs are not religious and I would remand to allow the government an opportunity to meet its burden of showing that the laws involved serve a compelling government interest and are the least restrictive means of meeting that interest. See United States v. Bauer, 84 F.3d 1549, 1559 (9th Cir. 1996).

( ( ( ( (

Discussion Questions

7. Do you agree with the Meyers dissent that courts should not undertake to determine if a claimant’s beliefs constitute a “religion”? Why or why not?

8. Assuming the dissent is wrong, is the process used by the District Court and adopted by the Court of Appeals the right way to address the issue? What might you do differently? In what ways does the court seem to ignore parts of its own test?

( ( ( ( (

(2) Introduction to Key Issue #1: Category Issues

(1) Category Issues: What is encompassed by the category “Religion”? How should you treat situations where the religion in question commonly overlaps with particular races or national origins? Should we treat decisions made because a person lacks religious belief as discrimination because of religion?

(a) Some religions are commonly associated with particular races, ethnicities and/or national origins. What special problems arise when this is so? Can/should we distinguish discrimination on the basis of religion from discrimination based on one or more of the other categories?

- Arabs ↔ People from Iraq/Syria/Egypt/Saudi Arabia ↔ Islam

- South Asians ↔ People from India/Sri Lanka/Pakistan/Bangladesh ↔ Islam & Non-Western Religions (Hinduism/Sikhism/Buddhism)

- Jews or Gypsies (may be viewed as religion, race and/or ethnicity)

(b) Shaare Tefile holds that discrimination against Jews can be race discrimination actionable under the Civil Rights Act of 1866. Are there any circumstances where discrimination against Jews should not be considered race discrimination?

(c) When, if ever, should we view disfavoring people for their lack of religious belief as a form of religious discrimination? Refusing to hire or provide housing to an atheist for that reason would almost certainly violate relevant anti-discrimination laws, but there are harder cases:

(i) When, if ever, should an employer making hiring and promotion decisions be able to take into account membership or regular attendance in an established religious institution as evidence of relevant positive traits such as maturity, reliability, stability or morality.

(ii) Suppose an employer organizing a seven-day work schedule allows religious employees to choose not to work on their Sabbath. Should non-religious employees similarly be allowed to choose one day a week not to work?

-----------------------

2 The Court of Appeals thus rejected petitioners’ claim that respondent’s complaint alleged only national origin and religious discrimination, assertedly not reached by §1981.

4 There is a common popular understanding that there are three major human races—Caucasoid, Mongoloid, and Negroid. Many modern biologists and anthropologists, however, criticize racial classifications as arbitrary and of little use in understanding the variability of human beings. It is said that genetically homogeneous populations do not exist and traits are not discontinuous between populations; therefore, a population can only be described in terms of relative frequencies of various traits. Clear-cut categories do not exist. The particular traits which have generally been chosen to characterize races have been criticized as having little biological significance. It has been found that differences between individuals of the same race are often greater than the differences between the “average” individuals of different races. These observations and others have led some, but not all, scientists to conclude that racial classifications are for the most part sociopolitical, rather than biological, in nature.

5 We note that under prior cases, discrimination by States on the basis of ancestry violates the Equal Protection Clause of the Fourteenth Amendment.

[1] The district court “gleaned” many of these factors from the following cases: Africa v. Commonwealth of Pa., 662 F.2d 1025 (3rd Cir. 1981), cert. denied, 456 U.S. 908 (1982); Malnak v. Yogi, 592 F.2d 197 (3rd Cir. 1979); United States v. Sun Myung Moon, 718 F.2d 1210 (2nd Cir. 1983), cert. denied, 466 U.S. 971 (1984); Founding Church of Scientology of Washington, D.C. v. United States, 409 F.2d 1146 (D. C. Cir.), cert. denied, 396 U.S. 963 (1969); Washington Ethical Soc'y v. District of Columbia, 249 F.2d 127 (D.C. Cir. 1957); United States v. Kauten, 133 F.2d 703 (2nd Cir. 1943); Sherr v. Northport-East Northport Union Free Sch. Dist., 672 F. Supp. 81 (E.D.N.Y. 1987); Jacques v. Hilton, 569 F. Supp. 730 (D.N.J. 1983), aff'd, 738 F.2d 422 (3rd Cir. 1984); Church of the Chosen People v. United States, 548 F. Supp. 1247 (D. Minn. 1982); Womens Services, P.C. v. Thone, 483 F. Supp. 1022 (D. Neb. 1979), aff'd, 636 F.2d 206 (8th Cir. 1980), vacated, 452 U.S. 911 (1981); Stevens v. Berger, 428 F. Supp. 896 (E.D.N.Y. 1977); Remmers v. Brewer, 361 F. Supp. 537 (S.D. Iowa 1973), aff'd, 494 F.2d 1277, cert. denied, 419 U.S. 1012 (1974);United States v. Kuch, 288 F. Supp. 439 (D.D.C. 1968); Fellowship of Humanity v. Alameda County, 315 P.2d 394 (Cal. Ct. App. 1957).

................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download