There are three issues here, I think. One is whether this is
properly seen as a form of religious accommodation; I think Alan is quite right
that it is. Just to give an example, say that a city-run basketball league at
a city-run rec center had a uniform that some religious women found immodest,
and the city gave them an exemption allowing them to wear, say, skirts instead
of shorts. I think we'd rightly view this as an accommodation (whether or not
constitutionally or statutorily mandated), even though no one has to play
basketball in the city-run league.
A second is whether, even apart from a desire for religious
accommodation, a city is constitutionally allowed - despite the Equal
Protection Clause - to have women-only hours at the swimming pool, for the
benefit of women from cultural groups whose sense of modesty is different from
the national majority's. (There's a separate question of whether the city
would also have to have matching men-only hours as well.)
The theory here would be that we have single-sex rules to accommodate the
majority's modesty concerns (in shower rooms, dressing rooms, and the like),
and that it's constitutionally permissible to have slightly broader single-sex
rules to accommodate a cultural minority group's modesty concerns. (Indeed,
one interesting case on the subject - though perhaps involving not just modesty
concerns but body image concerns - was a Pennsylvania public accommodations law
case from 1991 involving a private women-only health club, didn't involve
religious accommodations at all, but rather a health club that catered to some
women's preference for working out without men present.)
The third issue is whether, if single-sex hours at pools are
presumptively unconstitutional under the Equal Protection Clause - and, again,
we'd need to decide whether they are - that presumption can be rebutted by the
interest in accommodating religious groups.
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan E Brownstein
Sent: Thursday, June 02, 2016 6:19 PM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: thoughts on constitutionality of single-sex hours for public pool?
I think it is both reasonable and valid to accommodate religious groups whose
members would be unable to enjoy benefits that the majority enjoys because of
conflicts with a minority faiths beliefs.
No one has to attend the prom or go on discretionary field trips or play in
intra mural sports. But these are valued opportunities.I fully appreciate that
the cost of accommodations may be too high -- as it often will be if it
requires discrimination against third parties. But that is very different than
arguing there is no valid interest in providing accommodations in these cases.
Years ago I helped out in a case involving an Adventist high school that was
barred from playing in a state basketball tournament because they asked for an
accommodation so they would not have play on the Sabbath.
If their games could be scheduled to avoid playing on the Sabbath at minimal
cost to others, why shouldn't their religious beliefs be accommodated? The fact
that there is no requirement to play in state basketball tournaments seems to
me to be an unpersuasive basis for denying an accommodation in this kind of a
case.
Alan
Sent from my iPhone
On Jun 2, 2016, at 7:49 PM, "Ira Lupu"
<icl...@law.gwu.edu<mailto:icl...@law.gwu.edu>> wrote:
Paul is raising, among other questions, an entirely appropriate baseline
question -- how do sexually integrated public pools burden anyone's religious
freedom? No one is coerced to use them. The pools are a constitutionally
gratuitous benefit, offered on conventional conditions of no sex
discrimination. If there is no burden on religious freedom, then there is no
justification for an accommodation.
On Thursday, June 2, 2016, Volokh, Eugene
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote:
I think Prof. Finkelman and I might be talking past each other
here, but I'd love to hear what others think.
Eugene
From:
religionlaw-boun...@lists.ucla.edu<javascript:_e(%7B%7D,'cvml','religionlaw-boun...@lists.ucla.edu');>
[mailto:religionlaw-boun...@lists.ucla.edu<javascript:_e(%7B%7D,'cvml','religionlaw-boun...@lists.ucla.edu');>]
On Behalf Of Paul Finkelman
Sent: Thursday, June 02, 2016 5:37 PM
To: Law & Religion issues for Law Academics
<religionlaw@lists.ucla.edu<javascript:_e(%7B%7D,'cvml','religionlaw@lists.ucla.edu');>>
Subject: Re: thoughts on constitutionality of single-sex hours for public pool?
single sex dressing rooms do not discriminate against anyone he way the pool
does. I assume the dressing rooms are not arbitrarily closed to only allow one
sex to use any dressing room.
Eugene, I actually doubt there are any people on this list (or very many on law
faculties) or in the US who would think that single sex dressing rooms are
unconstitutional. So why raise the analogy.
The issue here is whether you deny access because a religious group demand its;
given the racial arguments of many religious groups (going back to proslavery
religious thought and going to Bob Jones University and beyond) it is not
impossible to imagine a single race religious argument. Some religious groups
have been making them for 150 years or more. (If you want examples of early
versions, see Paul Finkelman, Defending Slavery: Proslavery Thought in the Old
South). So, it is not impossible or implausible to make the analogy here.
I don't see what the accommodation is. IF you have a university of high school
that requires a swimming test to graduate (I knew someone who almost did not
graduate from college because she could not pass the swimming test, in 1968),
then there might be an accommodation issue. But, short of a requirement that
people go swimming in the public pool, what is the accommodation here?
Anyone can use the pool any time; anyone can choose not to use the pool any
time. No one is required to use the pool ever. What is the accommodation
issue?
******************
Paul Finkelman
Ariel F. Sallows Visiting Professor of Human Rights Law
College of Law
University of Saskatchewan
15 Campus Drive
Saskatoon, SK S7N 5A6
CANADA
paul.finkel...@yahoo.com<javascript:_e(%7B%7D,'cvml','paul.finkel...@yahoo.com');>
c) 518.605.0296
and
Senior Fellow
Democracy, Citizenship and Constitutionalism Program
University of Pennsylvania
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________________________________
From: "Volokh, Eugene"
<vol...@law.ucla.edu<javascript:_e(%7B%7D,'cvml','vol...@law.ucla.edu');>>
To: Law & Religion issues for Law Academics
<religionlaw@lists.ucla.edu<javascript:_e(%7B%7D,'cvml','religionlaw@lists.ucla.edu');>>
Sent: Thursday, June 2, 2016 7:45 PM
Subject: RE: thoughts on constitutionality of single-sex hours for public pool?
I'm not at all sure that this form of sex classification is
constitutional. But, as is often the case with analogies between single-sex
and single-race, I don't think the simple sex/race analogy is helpful here.
I take it that few of us would think that single-sex dressing
rooms are "about as constitutional as single race dressing rooms." The
government can legitimately accommodate some sorts of privacy/modesty concerns,
at least when it comes to people seeing each other in a state of undress or
near-undress. Then-Professor Ginsburg so wrote in the 1970s in response to
criticism of the ERA; Justice Ginsburg so noted in United States v. Virginia;
many courts have even said that denial of such privacy (e.g., in prisons, where
prisoners are searched by guards of the opposite sex) is a constitutional
violation. Perhaps Justice Ginsburg is tantamount to a racial segregationist,
but I doubt it.
Of course, the exposure of one's body at a swimming pool isn't
the same as the exposure in a shower or even in a changing room; we know that
precisely because our culture generally has mixed-sex swimming pools but
single-sex changing rooms. But some cultures, especially some
religiously-linked cultures, draw the privacy/modesty line in a somewhat
different place - not a vastly different place, but a significantly different
place. The question is to what extent government actors (and, under public
accommodation laws, private institutions) may accommodate that differently
placed line. Categorically equating sex classifications with race
classifications, I think, doesn't really help us answer that question.
Eugene
From:
religionlaw-boun...@lists.ucla.edu<javascript:_e(%7B%7D,'cvml','religionlaw-boun...@lists.ucla.edu');>
[mailto:religionlaw-boun...@lists.ucla.edu<javascript:_e(%7B%7D,'cvml','religionlaw-boun...@lists.ucla.edu');>]
On Behalf Of Paul Finkelman
Sent: Thursday, June 2, 2016 4:03 PM
To: Law & Religion issues for Law Academics
<religionlaw@lists.ucla.edu<javascript:_e(%7B%7D,'cvml','religionlaw@lists.ucla.edu');>>
Subject: Re: thoughts on constitutionality of single-sex hours for public pool?
This seems about as constitutional as single race swimming pools.
I appreciate the desire of Ultra Orthodox Jews to live the life they want to
life. That is what the Constitution protects. But it also protects the rights
of everyone else to live their lives. That has to mean equal access to all
pools.
There is also an interesting glitch. Some of my Orthodox male relatives and
friends are uncomfortable around women in "immodest" dress are swimming pools.
So they might need single sex pools as well.
Then there are all sorts of transgender issues, too complicated to imagine.
******************
Paul Finkelman
Ariel F. Sallows Visiting Professor of Human Rights Law
College of Law
University of Saskatchewan
15 Campus Drive
Saskatoon, SK S7N 5A6
CANADA
paul.finkel...@yahoo.com<javascript:_e(%7B%7D,'cvml','paul.finkel...@yahoo.com');>
c) 518.605.0296
and
Senior Fellow
Democracy, Citizenship and Constitutionalism Program
University of Pennsylvania
Call
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________________________________
From: Marty Lederman
<lederman.ma...@gmail.com<javascript:_e(%7B%7D,'cvml','lederman.ma...@gmail.com');>>
To: Law & Religion issues for Law Academics
<religionlaw@lists.ucla.edu<javascript:_e(%7B%7D,'cvml','religionlaw@lists.ucla.edu');>>
Sent: Thursday, June 2, 2016 6:18 PM
Subject: thoughts on constitutionality of single-sex hours for public pool?
permissible accommodation?
http://www.nytimes.com/2016/06/01/opinion/everybody-into-the-pool.html
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--
Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law, Emeritus
George Washington University Law School
2000 H St., NW
Washington, DC 20052
(202)994-7053
Co-author (with Professor Robert Tuttle) of "Secular Government, Religious
People" ( Wm. B. Eerdmans Pub. Co., 2014))
My SSRN papers are here:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
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