Again, I wonder whether sex-separate swimming really “screams
inconsistent with every case on the books.” Consider, for instance, United
States v. Virginia, where Justice Ginsburg’s majority opinion stated that
“Admitting women to VMI would undoubtedly require alterations necessary to
afford members of each sex privacy from the other sex in living arrangements,”
n.19 – not just in bathrooms, I take it, but also in barracks / roommate
arrangements and the like. Indeed, the opinion left open the possibility that
single-sex education may generally be constitutional (except when it denies
women access to “unique” colleges such as VMI, so that the separateness is not
equal), n.7. Would we draw “an interesting parallel to racism” here, or would
we conclude that sex is different enough from race, especially when it comes to
“privacy”? And, if so, why would accommodation of slightly different notions
of sex-based privacy – such as those applicable to swimming rather than to
“living arrangements” – necessarily be excluded?
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Michael Worley
Sent: Thursday, June 02, 2016 8:17 PM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: "Religious diversity" as a compelling interest for discrimination
in universities?
More than fair; I think I more meant the pool context than the university
context.
Separately, this is an interesting parallel to racism. The Court correctly
determined with respect to race that separate but equal is awful. In the
religious context, for some faiths, can separation be what they prefer, even in
places that are government-run?
A religious idea that women in certain faiths get "equal protection" when they
swim separately screams inconsistent with every case on the books (except
Korematsu, sadly), but in the area of religious diversity, isn't the state to
be admired for encouraging the expression of beliefs different than the
consensus? The state couldn't impose that belief, to be sure, but isn't it to
be admired for it?
On Thu, Jun 2, 2016 at 9:08 PM, Volokh, Eugene
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote:
So that universities could give admission preferences to, say,
evangelical Christians, if they conclude that they are underrepresented among
students or on the faculty? To the more devout of all faiths, if it thinks
they are underrepresented? I think race-based admissions preferences (the
programs which are most often defended using “racial diversity” arguments) are
troublesome enough; religion-based preferences strike me as even worse.
Eugene
From:
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>
[mailto:religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>]
On Behalf Of Michael Worley
Sent: Thursday, June 02, 2016 6:01 PM
To: Law & Religion issues for Law Academics
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: thoughts on constitutionality of single-sex hours for public pool?
It is one thing to say religious minorities have no right to shape the law so
public facilities match their religious sentiments. It is another thing to
suggest that our constitution requires public facilities to not serve religious
minorities.
Is not encouraging religious diversity a compelling interest, under the equal
protection clause, just like encouraging racial diversity is for law schools?
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Michael Worley
J.D., Brigham Young University
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