The ban on abortion doesn't violate the Establishment Clause because there are sufficient non-religious reasons to justify the ban. If the only reasons sufficient to justify the ban were religious, that would contravene the secular purpose requirement.
To answer your question below, I'm not arguing that religious accommodations that are otherwise consistent with the Equal Protection Clause are unconstitutional simply because they are motivated to accommodate religious believers. That would be to rule out all religious accommodations (which is not my view). Rather, my claim is that when accommodations require (or would require) the state to contravene otherwise applicable constitutional principles, the Establishment Clause may impose limits based on concerns about third party harms. Maybe you think the Establishment Clause claim here is superfluous, but that doesn't seem like a full description of the harms. If the state can't authorize some action because it is otherwise constitutionally impermissible, and if it does so anyway for purposes of religious accommodation, it hasn't only violated the Equal Protection Clause, for example, but it has done so in a way that promotes religion over other constitutionally recognized interests. And that has Establishment Clause implications under existing doctrine. On Jun 6, 2016, at 8:44 PM, "Volokh, Eugene" <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote: I agree that a state single-race swimming pool program would violate the Equal Protection Clause, whether it’s motivated by religious or secular objections to race mixing. But I don’t see why it would violate the Establishment Clause – just as a ban on abortion, for instance, has been held to violate the Due Process Clause, but it doesn’t violate the Establishment Clause. But if a state single-sex swimming pool program wouldn’t violate the Equal Protection Clause, if motivated by some users’ secular preferences for single-sex swimming (such as the ones in Livingwell), then I don’t think it would violate the Establishment Clause if motivated by some users’ religious preferences (for the reasons offered in my abortion funding analogy). Micah, are you arguing that an otherwise non-Equal-Protection-Clause-violating separate-sex program becomes unconstitutional when it is motivated by a desire to accommodate religious users? Or am I misunderstanding your position? Eugene From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu<mailto:boun...@lists.ucla.edu>] On Behalf Of Schwartzman, Micah Jacob (mjs4d) Sent: Monday, June 06, 2016 5:20 PM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Subject: Re: Facially neutral accommodations motivated by some objectors' religious beliefs The point of modifying your example isn't to draw a race analogy. It's to show that your example is trading on the assumption of the underlying constitutional permissibility of the state's action. And then it's asking whether that assumption is doing any work in the Establishment Clause analysis. (You could reach the same point by asking how your first two examples would look if state-owned hospitals were required to allow abortions under the 14th Amendment.) If the state required a religious accommodation for single-race swimming, that accommodation would violate both the Equal Protection Clause and the Establishment Clause. It would do the latter by imposing third party harms, here harms of constitutional significance (incorporating equal protection concerns), on nonbeneficiaries, in contravention of Caldor and Cutter. Why is it that the harms at issue in Caldor and Cutter can't sound, at least in part, in other provisions of the Constitution? On Jun 6, 2016, at 7:50 PM, "Volokh, Eugene" <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote: 1. As I’ve mentioned before, I don’t think race classifications are a helpful analogy to sex classifications where privacy is concerned. Most people accept single-sex shower rooms, changing rooms, and restrooms (bracketing for now the discussion about transgender people), though we wouldn’t accept single-race ones. Likewise, I’m pretty sure that, when it comes to private entities and public accommodations laws (rather than government entities and the Equal Protection Clause) theLivingwell court would not have accepted an argument for single-race health clubs justified by a “privacy” rationale. The question is whether sex-based privacy/modesty rationales, which we accept for some contexts where they represent majority views, should also be applicable to nearby areas (such as swimming pools) where only a minority sees a strong privacy/modesty concern. No such question applies to race or religion classifications. 2. But that’s the Equal Protection Clause analysis – as an Establishment Clause matter, I likewise don’t see how single-race swimming hours would pose an Establishment Clause problem. They violate the Equal Protection Clause, but not the Establishment Clause. Likewise, single-religion swimming hours would violate the religious discrimination prohibition, seeLarson v. Valente, and not some other Religion Clauses principle (such as one that people are trying to bring in here via Estate of Thornton v. Caldor). If the objection is about discrimination, whether based on sex, race, or religion, that is a matter for the Equal Protection Clause (or the similar doctrine of Larson, when it comes to religious discrimination), not for Thornton. Eugene From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu<mailto:boun...@lists.ucla.edu>] On Behalf Of Schwartzman, Micah Jacob (mjs4d) Sent: Monday, June 06, 2016 4:33 PM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Subject: Re: Facially neutral accommodations motivated by some objectors' religious beliefs What if we modify your last example in this way: 3. If it doesn’t violate the Establishment Clause for individual county hospitals to decide whether to provide abortions, why would it violate the Establishment Clause for individual city-run swimming pools to decide whether to provide [co-religionist or single-race] swimming hours? (Again, I set aside the question whether this violates the Equal Protection Clause, quite apart from the religious questions.) Still no Establishment Clause problem? On Jun 6, 2016, at 6:48 PM, Volokh, Eugene <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote: 1. Say that a state decides not to allow abortions at state-owned hospitals, because taxpayers object to paying for them. We know this is constitutionally permissible, and doesn’t violate the Establishment Clause, seeHarris v. McRae. It doesn’t matter whether the taxpayers object to abortion for secular reasons or religious reasons; the state can choose not to fund them, without violating the Establishment Clause. And that is so even though one can call this a “burden” on third parties, who as a result find it harder to get abortions. 2. Now say that a state doesn’t regulate this at a state level, but leaves it for each hospital to make this decision (based on its sense of the preferences of local taxpayers, local employees, etc.). Unsurprisingly, county hospitals in areas where anti-abortion sentiment is more common choose not to provide abortions, while county hospitals in other areas do provide them. Does this somehow become an impermissible “religious gerrymander,” simply because the state leaves this for local hospitals to decide? 3. If it doesn’t violate the Establishment Clause for individual county hospitals to decide whether to provide abortions, why would it violate the Establishment Clause for individual city-run swimming pools to decide whether to provide single-sex swimming hours? (Again, I set aside the question whether this violates the Equal Protection Clause, quite apart from the religious questions.) Eugene From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan E Brownstein Sent: Monday, June 06, 2016 2:21 PM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Subject: Re: Jewish law, women's bodies, and accommodations I think the answer to Chip's question is that an Establishment Clause analysis evaluating the harms caused by a religious accommodation does require a balancing of interests. Indeed, the balancing analysis would have significant similarities to the balancing necessary to implement a serious free exercise jurisprudence. Balancing has its problems, but the alternatives seem worse: either we reject accommodations that impose costs on third parties -- an approach which severely limits accommodations -- or we allow all accommodations without regard to the costs they impose on third parties. Note that this approach could include a variety of doctrinal nuances and distinctions as is true for free speech doctrine, but it is hard to avoid some role for balancing if we are going to take account of both the need for accommodations and the harms accommodations may impose on third parties. Alan Sent from my iPhone On Jun 6, 2016, at 9:51 AM, "Ira Lupu" <icl...@law.gwu.edu<mailto:icl...@law.gwu.edu>> wrote: 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<mailto: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><mailto:vol...@law.ucla.edu> To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu><mailto:religionlaw@lists.ucla.edu> Subject: Jewish law, women's bodies, and accommodations Message-ID: <cy1pr0501mb13231558cb1f1f33875cea3af6...@cy1pr0501mb1323.namprd05.prod.outlook.com><mailto: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 list Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> 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. End of Religionlaw Digest, Vol 147, Issue 4 ******************************************* _______________________________________________ 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. 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