Is the argument for this accommodation based on religious concerns about privacy/modesty limited to gender discrimination? Suppose a religious group believes that, for reasons of modesty, its members should only swim with coreligionists of the same sex. Could the city adopt a policy excluding (for a couple hours) everyone who isn't a member of that religion on the ground that it has a significant interest in promoting water safety? Or on the ground that it has a significant interest in providing access to public benefits for all taxpayers?
Or does exclusion based on religion, rather than gender, fail because it triggers strict (and not intermediate) scrutiny? Promoting water safety/taxpayer access is significant but not compelling? On Jun 2, 2016, at 11:28 PM, Volokh, Eugene wrote: 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> [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<mailto: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? _______________________________________________ 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. -- Michael Worley J.D., Brigham Young University _______________________________________________ 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.