We had a spirited discussion on the blog a couple of months ago on the issue of whether pharmacists should be allowed to indulge their personal prejudices and refuse to dispense the morning after pill.
Now taxi-drivers in Minneapolis are getting in on the act, and refusing to accept passengers who are carrying alcohol with them.
Where will this end? We're becoming an increasingly self-indulgent and intolerant society where we think the strength of our personal beliefs entitles us to impose the costs of our observance of those beliefs on others.
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What, pray, is the public policy rationale in not allowing them to discriminate on the basis of race, gender, or sexual orientation, but allowing them to discriminate on the basis of what you're carrying (when what you're carrying clearly does not pose a danger to the friver) ? I don't see a principled difference. If a passenger appears sloshed and a driver fears for his life or safety, then by all means, refuse to pick up the dipsomaniac. That's not what this is about. This is about a driver refusing to pick up a passenger because certain characteristics of the passenger (that cannot and do not affect his safety) offend his prejudices. The carrying of alcohol offends the driver's religious prejudices today. Tomorrow the public display of homosexual affection will offend another driver's religious prejudices. What is the principled difference between the two? The driver is in no physical danger, the only so-called injury is to his exquisite and delicate beliefs. Tough. If your beliefs make you so sensitive, take up another job. A taxi is a common carrier is it not? Has n't the common law, for centuries, disallowed common carriers from unreasonably refusing to carry certain passengers?
I did a quick search, and at least what I could find, the cases have held taxis who pick up passengers indiscriminatly are common carriers, and have a higher duty. On the other hand, I didn't find much, and so I think it's arguable they are not, or that this behavior would be protected from regulation.
Taxis aren't like trains or aircraft, or even hotels, which require large, expensive, and fixed infrasture. They are ubiquitous, and people have the choice of many cab companies to pick them up at the same street corner - especially with the advent of cell phones. It is a relatively inexpensive business to enter, if there is a market for it.
Additionally, it's tough to argue this isn't a protected free exercise of religion, which is unquestionably a fundamental right. If they refuse to pick you up, it's not like you bleed to death. You are merely inconvenienced, and have to call another cab, the vast majority of which I am willing to bet still allow the bottles of wine.
I think taxi drivers should be able to do what they want, no matter how stupid I think it is, or how offended I am that they would dare judge our culture, considering the place from which they fled.
But I think this case points to larger legal concerns.
Minneapolis has had some larger problems with the Somali taxi drivers being a large alien import scam, with what are essentially tribal warlords bringing them over and exploiting them. THey have hired "translaters" who essentially take the driving test for them, which has resulted in a lot of accidents. I think it's an end-run around some immigration laws, and a scary example of the danger of an immigrant community refusing to integrate into their new culture.
But worse, I can't help but wonder if this isn't darker forces testing the waters of our "tolerance" (read "weakness") for bowing to foriegn cultural concerns while the foreign culture lives in our country and flouts their nose at our own (and I frankly think better) cultural traditions.
In short, my hackles are raised far more with the associated immigration problems, than with any notion of an affirmative substantive right to unfettered taxi service.
Orrin, so its fine (from a policy standpoint) for a taxi driver to refuse to pick up someone merely because he does n't like the color of his skin? If not, why? That passenger can, also, just wait a couple of minutes for a non-racially-prejudiced taxi driver. What is it about race / gender / sexual orientation that make it unacceptable for a taxi driver to discriminate based on those characteristics, but leave him free to discriminate based on other characteristics?
Orrin, I would also like to take issue with your contention that the free exercise clause would protect this behavior. I don't know a whole lot about First Amendment Law (as will probably become obvious over the course of this comment), but surely a state is not prevented from implementing facially-neutral regulation that would also have the effect of reducing the negative externalities imposed on society by the religious observances of some. A state can enforce a noise-abatement ordnance can it not? It may have the effect of silencing church bells or calls from a mosque at certain hours, but that would not be a violation of the First Amendment, would it? A city is not compelled by the First Amendment to accomodate every punctilio of particularly orthodox religious observance, is it? Is a city compelled, by the dictates of the First Amendment, to refuse to license non-kosher butchers within, say, a three block radius from a synagogue? I would n't think so, and I don't think the First Amendment would stand in the way of a city ordnance that disallowed the kind of discrimination being engaged in by these taxi drivers.
Publius, Americans chartered a limited federal government. I don't recall there being a requirement that state or local governments be limited and confined to enumerated powers (Not that I am necessarily advocating fantastically large local government). If a state regulation would tend to reduce discrimination and does n't fly in the face of constitutional prohibitions, I see no legal (or moral, or policy) problem with it.
I'm kind of torn on this, but yes - I think a business should be allowed to be racist, so long as there is adequate competition so as not to give de facto governmental force to that racism.
I think that states can regulate such things when the discrimination has the effect of denying any realistic opportunity for a class of people who's defining characteristic is immutable. But I don't think they should unless the impact is real and significant. Mere inconvenience isn't enough, and I think this doesn't go even as far as calls to prayers from minarettes, which I think should be regulated.
Bottom line is that I want to have my cake and eat it to, and in this case, I think we can. Hospitals are different from pharmacies. Taxis are different from the subway. People can still get cabs, and intollerant muslims can practice their brand of religion. When the status quo changes, and one of those things is upset, then I think the state should take action. But not before.
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