Very thoughtful and helpful post, Chris. Sent from my iPhone
On Jun 2, 2016, at 9:18 PM, "Christopher Lund" <l...@wayne.edu<mailto:l...@wayne.edu>> wrote: I have thought about these issues a little bit over the years, because a similar program is in place at Wayne State, where I teach. (Wayne State is a public university.) The gym here has a "women's only" area, removed from the main part of the gym. Now there are many women's gyms out there, which probably reflect how many women (regardless of religion) would rather not work out in the company of men. But I have little doubt that here at Wayne, a big part of it is that we have a lot of Muslim women who have deep religious concerns about this. (And you see that last point obliquely referred to in the university’s description here, https://rfc.wayne.edu/mort-harris/womens-only-area.php.) Of course, the burden on men is much less here at Wayne than in the New York case, because men have other machines that they can work out on. But the burden is not nothing. Machines can fill up quickly, because many people try to work out over the lunch hour. I'm sure there are guys out there thinking it would be easier if they could just use the machines in the women's area. But they can’t. Chip may be right that this is unconstitutional tout court. This is sex discrimination by the state; there’s no disputing that. I guess that would make the “women’s only” area at Wayne unconstitutional. And that might be the right answer. Even so, I still am interested in the facts here. How many Orthodox women want to use the pool? And how many hours would it be women-only, and how many hours would it be open access? Are there non-religious people who want womens-only or mens-only swim times? (There might be.) It’s obviously a huge burden to the men to not be able to use the pool (especially, I notice, Saturday afternoon). But if Orthodox women all feel religiously compelled not to swim with men, then a lack of a religious accommodation here makes them similarly unable to use the pool. For the same reasons that lack of pool access is a hardship to the men, it's a hardship to the women. Of course, it's true that the women's hardship is, in a sense, created by their own religious beliefs. But that's always the case with religious accommodations. And if we're balancing harms and hardships, I'd note an important imbalance here. Without a religious accommodation, the women aren't deprived of the pool for a limited time (as the men would be with a religious accommodation); they are deprived of the pool altogether. I'd want to avoid that, if I could. I still don’t know how to resolve this, but one final thing. If you look at the pool’s schedule, which I think I found here, https://www.nycgovparks.org/facilities/recreationcenters/B085/schedule/2016-05-30#Pool, you’ll see that there’s virtually no “general swim” times at the pool at all—usually only about two hours a day. Most of the time, the pool seems to be reserved for various kinds of things—kids’ swim lessons, water polo, adult lap swimming, senior lap swimming. And if the state is restricting pool access for all these other kinds of reasons, the question becomes why it can't do the same to accommodate the deeply held views of a minority faith? I mean, water polo is great, but I don't know if it's necessarily more worthy of accommodation than Orthodox Judaism. Best, Chris ___________________________ Christopher C. Lund Associate Professor of Law Wayne State University Law School 471 West Palmer St. Detroit, MI 48202 l...@wayne.edu<mailto:l...@wayne.edu> (313) 577-4046 (phone) (313) 577-9016 (fax) Website—http://law.wayne.edu/profile/christopher.lund/ Papers—http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402 ________________________________ From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> <religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>> on behalf of Ira Lupu <icl...@law.gwu.edu<mailto:icl...@law.gwu.edu>> Sent: Thursday, June 2, 2016 6:53 PM To: Law & Religion issues for Law Academics Subject: Re: thoughts on constitutionality of single-sex hours for public pool? Not permissible. An obvious sectarian gerrymander, with unmistakable harm to men, who get no comparable single-sex hours in the pool. And, I suspect, trans women are not going to be allowed in the pool during the hours for women only. A policy that created hours for men (and boys) only, and an equal number of hours for women (and girls) only would be easier (though not easy) to defend on constitutional grounds, though perhaps even more unpopular for its detrimental effects on family swimming. On Thu, Jun 2, 2016 at 6:18 PM, Marty Lederman <lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>> wrote: permissible accommodation? http://www.nytimes.com/2016/06/01/opinion/everybody-into-the-pool.html _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- 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 _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
