I’m not sure that a single-sex-hours-at-pools policy is
constitutional under the Equal Protection Clause, or would be constitutional
even if it offered men-only swim hours as well as women-only.
But the Establishment Clause argument is more complicated, I
think. Estate of Thornton v. Caldor involved a benefit that was only available
to religious observers (as the Court pointed out); do we know that it also
applies to programs that are facially religion-neutral, and that do indeed
benefit nonobservers as well as observers, but are motivated in part by a
desire to accommodate religion?
After all, some nonreligious women as well as religious women may appreciate a
women-only swim time (though perhaps not as much as religious women). Indeed,
some women-only health clubs cater to women generally, without regard to
religion; to quote the Livingwell case, which held that those health clubs
don’t violate state sex discrimination bans, some women “have a legitimate
privacy interest in exercising in a single sex club because exercising focuses
upon aspects of their figures which they wish to improve. While doing the
exercises to reshape their figures, they expose parts of the body about which
they are most sensitive, assume awkward and compromising positions, and move
themselves in a way which would embarrass them if men were present.”
Presumably some women who feel no religious objections to swimming around men
would thus appreciate the pool’s women-only hours for such reasons as well.
Indeed, if a city decided to offer women-only hours (and, separately, men-only
hours) at its swimming pool simply to accommodate women’s secular preferences
for an environment relatively free of men looking at them (whether lustfully or
judgmentally), that would pose no Establishment Clause problem at all, though
it would still pose an Equal Protection Clause problem. Does Thornton preclude
the same program –open to all women without regard to religion – if the
motivation was to accommodate some women’s religious concerns, rather than
their secular concerns? (Recall that Thornton was not decided under the
“religious purpose” prong of Lemon, and that Amos made clear that accommodating
religion is not itself an impermissible religious purpose.)
One last item, assuming Thornton is relevant: I agree that, while religious
women’s felt inability to use a mixed-sex pool is a burden, it’s not a vast
burden, because it’s just one form of recreation that they might want to use.
Should that be relevant, though, to the “undue burden on third parties” prong
of Thornton as well, if that analysis applies to facially religion-neutral
accommodations?
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Friday, June 03, 2016 7:21 AM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: thoughts on constitutionality of single-sex hours for public pool?
I agree that accommodations of a religious group re: a public benefit -- e.g.,
Eugene's example of a girls' basketball team that wants to wear more modest
uniforms -- are not per se impermissible. If they help the group participate,
and cause no harm, we should applaud them.
But the swimming pool case is all about harm, and as framed in NYC, it is about
harm to men only, because there are no male only swimming hours. I responded
first to Marty, and said this was not permissible because of that harm. I did
not separate Equal Protection norms from Establishment Clause norms when I
wrote that, and there is a deeper question lurking in that move. Equal
protection claims can be defeated by showing that the classification is
substantially related to important interests. There is a balancing methodology
there, tilted against the state, with a still more state-limiting caveat that
sex classifications must not reinforce over broad generalizations and
stereotypes about sex roles. The NYC accommodation certainly seems to
reinforce such generalizations about female demands for modesty.
Compare Establishment Clause norms re: third party harms. Here, we have much
less law to go on, but we do have Estate of Thornton v. Caldor and its holding
that accommodations of the religious practices (Sabbath observance) of some
employees cannot be allowed to work absolute impositions on the needs of others
(employers and other employees). Is that a balancing test? If it is, how does
a court balance religious needs against the competing secular harms? Or is it
NOT a balancing test at all, as some list members and others have suggested
(i.e., religious accommodations are unconstitutional if they work
material/significant/meaningful harm to 3rd parties)?
If you were litigating this on behalf of challengers to the NYC policy, you
would of course raise both Equal Protection and Establishment Clause
challenges. Which would be stronger?
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