I agree that it's not for the state to arbitrate between Hillel's and Meir's view about what is embedded in Jewish law with respect to women's bodies. But I want to go back to Eugene's earlier argument that 3rd party harms are not relevant to the Establishment Clause problem because the accommodation is not religion-specific -- that is, the hours are "women only," not "Jewish women only." True enough, but there is still a gerrymander here -- this is not a City wide policy. It applies only to this one neighborhood pool, in a neighborhood with a strong Orthodox Jewish presence. (If the policy were city-wide, it would help all women who want female-only swimming hours, for whatever reason. The sex discrimination problem would remain.) In light of the conspicuous religious gerrymander, perhaps we need to add Kiryas Joel to the mix of relevant cases.
When the policy is 1) motivated by religion specific concerns, and 2) geographically limited to reflect those concerns, perhaps the Caldor problem of harms to third parties (men, who want those hours to swim, and the weekday hours may be just as important to some of them as the Sunday hours) remains. If so, I repeat the question -- is the relevant test one of "balancing" religious accommodations against inconvenience to others? How would we do that, with or without interrogating religious reasoning? On Mon, Jun 6, 2016 at 12:20 PM, Meir Katz <meirka...@gmail.com> wrote: > Hillel's assumption that "Jewish laws relating to sexual modesty have > embedded within them, and reinforce, certain [negative] assumptions and > norms about women's and girls' bodies [that are contrary to public policy]" > is both incorrect and not widely held by those who observe those laws. The > laws have a rather different purpose, one certainly not contrary to public > policy, that was shared broadly by civil society until the 1950s. I would > be interested to learn from where Hillel's assumption derives. > > In any event, even if Hillel's assumption were arguably correct, it would > still be inappropriate, as Eugene inquires, for a judge (or, for that > matter, any third-party decision-maker) to use that assumption to bias his > decisions. A civil judge cannot be in the position of deciding religious > questions or determining the contours of religious law. For one to conclude > that "Jewish laws relating to sexual modesty have embedded within them, and > reinforce, certain [negative] assumptions," he would need to have a deep > and rather sophisticated understanding not just of what those Jewish laws > require, but also where they come from, why they exist, and how they impact > those who follow them. That inquiry necessarily intrudes deeply into > religious thought. Even if a civil judge were able to perform that inquiry > properly and reach an accurate conclusion, it is not a proper role for that > judge. > > Moreover, as I intimated in my first paragraph, the assumption that Hillel > reaches is contrary to the purpose and objective behind Jewish modesty laws > as generally understood by its adherents. As a result, using the assumption > to guide judicial decision-making would not merely improperly impose > physical burdens on the religious adherents, it would also impose on them > an alternative understanding as to what their religious laws actually mean. > If the women (and men) who willingly subject themselves to religious > modesty laws understand those laws as *not* as reinforcing norms and > assumptions that are contrary to public policy (broadly defined), why > should the contrary, and possibly unfounded, assumptions of a judge (or > anyone) play any role at all in determining their entitlement to observe > that law at state expense? And what authority does a civil judge have to > tell them that their laws have some alternative purpose or function? > > Similarly, false advertising and other claims against kosher certifying > agencies and food manufacturers that produce food labeled "kosher," despite > not being kosher from the perspective of the plaintiff, fail precisely > because civil courts lack the authority to determine how Jewish law > operates or whether a given food item is kosher under Jewish law. It > certainly follows that courts lack the authority to determine the purpose > underlying the laws of kashrut--say, perhaps, to promote hygiene--and then > use that assumption to resolve related matters. Indeed, permitting a court > to decide the *why* behind religious law is a greater intrusion into the > religious sphere than permitting a court to decide the *what*. > > That analysis applies no differently when discussing religious laws > governing modesty, regardless of the popularity of those laws in civil > society. > > Meir Katz > > > Message: 1 > Date: Sat, 4 Jun 2016 00:50:23 +0000 > From: "Volokh, Eugene" <vol...@law.ucla.edu> <vol...@law.ucla.edu> > To: Law & Religion issues for Law Academics > <religionlaw@lists.ucla.edu> <religionlaw@lists.ucla.edu> > Subject: Jewish law, women's bodies, and accommodations > Message-ID: > > <cy1pr0501mb13231558cb1f1f33875cea3af6...@cy1pr0501mb1323.namprd05.prod.outlook.com> > > <cy1pr0501mb13231558cb1f1f33875cea3af6...@cy1pr0501mb1323.namprd05.prod.outlook.com> > > Content-Type: text/plain; charset="utf-8" > > Hillel Levin writes: > > > > My primary opposition to the gender-segregated swim hours is not simply the > formal segregation of the sexes and the practical burdens this may pose on > people. Rather, it is that the Jewish laws relating to sexual modesty have > embedded within them, and reinforce, certain assumptions and norms about > women's and girls' bodies. I don't think the law should reflect, reinforce, > or send those messages in public spaces. > > > > Setting this aside as a basis for political opposition, are courts allowed to > consider the underlying assumptions and norms that may be said to be embedded > in religious laws? Say that in town J, there are many Orthodox Jews, and > many Orthodox women want single-sex swim hours because of Jewish laws that > are based on, and ?reinforce? ?certain assumptions and norms about women?s > and girls? bodies.? Say that in town W, there are many Wiccan > Goddess-worshippers, and many women who belong to that group want single-sex > swim hours because they believe women should spend more time celebrating and > improving their bodies free of male observation and the self-consciousness > and body image problems that it brings. And say that in town S, there are > many secular people, and many women in that town like single-sex swim hours > for the secular reasons given in the Livingwell case I mentioned before. > > > > Could it be that courts might uphold the single-sex pool hours in town W and > maybe town S, because the women?s preferences are based on good assumptions > and norms about women?s bodied, but reject them in town J because the judges > think that Jewish law is based on bad assumptions and preferences? > > > > Eugene > > > -------------- next part -------------- > An HTML attachment was scrubbed... > URL: > <http://lists.ucla.edu/pipermail/religionlaw/attachments/20160604/0bc0563a/attachment-0001.html> > > <http://lists.ucla.edu/pipermail/religionlaw/attachments/20160604/0bc0563a/attachment-0001.html> > > ------------------------------ > > _______________________________________________ > Religionlaw mailing > listreligion...@lists.ucla.eduhttp://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. > > End of Religionlaw Digest, Vol 147, Issue 4 > ******************************************* > > > > _______________________________________________ > 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. > -- 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 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.
