On May 19, 7:44 am, David Chesler <ches...@post.harvard.edu> wrote:
> There is a fine distinction between that and "I don't judge a man by
> the color of his skin, but by the thickness of his lips." When you've
> got near 100% correlation, it doesn't matter if you actually specify
> the religion. (I think they call this disparate impact, don't they?
IMO we're going astray by using an analysis derived from the statutory anti-discrimination laws when applied to religion. Sure, most anti-discrimination statutes forbid even private actors in certain contexts (public accomodation, housing, employment, for example) from discriminating against potential customers on the basis of religion, as well as on the basis of race, gender, national origin etc. But for religion, we also have to consider the impact of First Amendment rights (both the Establishment clause and the Free Exercise clause) when we're talking about _government_ action, including action by a public school system. I apologize if my earlier discussion using your terminology may have helped lead us down that path instead of staying with a First Amendment analysis.
But your above citation of "disparate impact" is nonsensical. It is the individual religious person whose religious obligation to wear religious headgear is disparately impacted by a general government rule forbidding any type of headgear, not the other way around. The punk who wants to wear his baseball cap to school is not disparately impacted by this rule; he is in fact falling within the general applicability of this non-content-based, secular rule with a legitimate secular purpose.
> IIRC simply having a legitimate reason [like a height requirement for
> cops, or a weight-carrying requirement for firefighters] doesn't
> always beat disparate impact.)
Exactly. But it is the female applicant who can't meet the height or weightlifting requirement who is disparately impacted and needs an accomodation to be made, not the male applicant. Surely you don't think that just because accomodation needs to be made for female applicants to "level the playing field", that means it is unfair for male applicants to still have to meet the general height and weight requirements?
All I am saying is, the person who does not qualify for a special exemption has no right to complain when someone else _does_ qualify to be exempted from a general requirement. If you accept that, we are on the same page. If you don't, I frankly don't know what you're getting at except to pick nits at the illogic of the law. And as I concede, the law is not always logical. That's just the way it is.
> But I asked "What is the current thinking?" not what would it be in
> the world where I am king and there is complete justice, so I guess
> that's what it is: accomodation overrides equal treatment.
Yes it does, where we are dealing with government action, because the Free Exercise clause requires reasonable accomodation to be made in individual cases where that can be done without undue disruption of the general governmental scheme that would otherwise have applied to everyone.
> Mike Jacobs writes:
> > I do take your question seriously, David, but pardon me if at first
> > glance it looks like a little kid saying "Wah! Davey gets to wear a
> > hat to school because he says G-d told him to, but I don't!!"
>
> Are you suggesting that the law doesn't concern itself with this
> because it is such a triviality?
Not at all. I'm suggesting that your reliance on grammatical logic and common English meaning is leading you astray in trying to interpret law. I don't know if you're being obstinate for the sake of argument or simply just don't see what I'm trying to say, and maybe it's my fault for not saying it clearly enough, but IMO all laws require the interpreter to look at them with an eye toward the ultimate social policy that the law is trying to further, since even the most elegant and precise words are imperfect and approximate indicators of what is really sought in terms of doing justice. Looking at virtually any law I can think of, if one were to insist only on "strict constructionism" (whatever that is) of the law's words, the result would be manifest injustice in a substantial number of cases.
> In English, words have clear meanings.
I disagree. All words (in every language, not just English) are symbolic and metaphorical, and hence inherently ambiguous. Otherwise, poetry could not exist. And hence, the difficulty of translation and the loss of meaning in the effort. Nor could philosophers argue over the meaning of existence, or the nature of reality; it would all be clear as a bell to everybody. Maybe it will be, when we all achieve Satori/Nirvana, and when Moshiach comes. But right now, using words, it's all clear as mud.
> Some laws or bodies of laws admit to the exceptions ("All X are Y,
> however Z, which is X, is not Y", or "All X are Y, however Z, which
> might seem to be X, is not X") but MGL C 272 s 98 doesn't seem
> to contain any exceptions to ""Whoever makes any distinction,
> discrimination or restriction..."
While the words of that law may not contain an explicit exception, the net effect of application of other laws, including the ones requiring reasonable accomodation of individual religious needs, is to carve an exception into that law in the particular case. If you agree that a law containing an exception is OK, what's wrong with that?
And part of the problem is that we're talking about "discrimination", a concept which has both a common sense English meaning, and a specific legal meaning which is somewhat different. Bottom line is, _all_ laws of any kind, "discriminate" in the plain English sense. That is, they apply to some persons and not others.
"Thou shalt not murder" discriminates against murderers because it treats them differently than non-murderers as far as sending them to jail or the gallows. Immigration laws discriminate because they treat citizens differently from non-citizens when they are trying to cross the border to get back into the country. Tax laws discriminate when they require the rich to pay more taxes than the poor. Ad nauseam.
And each of those laws of broad application also contains exceptions, and the exceptions may contain exceptions, all in an effort to refine the concept the law is trying to get at and to do substantial justice. In addition, many laws explicitly provide, and most will implicitly allow, a certain degree of ad-hoc, case-by-case fact-based determination using a rule of reasonableness with the ultimate policy goal in mind, in order to accomplish substantial justice. Each and every one of those exceptions is, in a sense, discriminating against all the other people who do not qualify for that exception, whether we are talking about wearing hats in school, or whether we are talking about qualifying for a tax credit for oil depletion allowances or for not growing soybeans.
So, in that sense, I think it is David's argument that trivializes the law, by reducing all of it to a mere question of whether people are being treated differently on the basis of the law. My answer is, of course they are, but while that is true, it is trivial, so let's forget about that and focus on what really matters in terms of the distinctions that are being made, and whether those distinctions make sense and are fair in terms of the ultimate social policy goals that are being pursued.
If that doesn't explain where I stand clearly enough, I give up, David. Maybe someone else will want to continue the argument, but I won't. Cheers,
--
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Mike Jacobs
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