I'm intrigued by the question about sufficient non-religious
reasons. If the question is really whether the government has some reasons for
an accommodation that don't just stem from the governors' own religious
beliefs, I would think they'd almost always be present. Here, for instance,
the government may want to promote the health (or just happiness) of women who
would otherwise not go the pool. After all, the government has secular reasons
for having pools in the first place: the public's health and pleasure. If it
sees that some part of the community feels unable to enjoy the pools, for
religious reasons or otherwise, there would be ample non-religious reasons to
jigger the rules in order to make the pools appealing to that part (and to make
sure that this part gets its taxes' worth). Now maybe there are Equal
Protection Clause constraints on what the government can do here. But there
surely are non-religious reasons.
Of course, maybe the question is whether the government has some
reasons for an accommodation that don't just stem from the accommodated
people's religious beliefs. But why should that be the question? Why would a
single-sex pool rule be justified if motivated by the Livingwell secular
women's concern, and not if motivated by Orthodox Jewish (or traditionalist
Muslim) women's concerns?
Finally, to respond to the last paragraph, say that it turns out
that the law in Erznoznik v. City of Jacksonville, which banned the display of
nudity on drive-in theaters, were motivated in large part by the sense that
many people thought it was offensive to their sense of modesty to be
unwillingly confronted by large moving color pictures of nudity. The law would
still violate the Free Speech Clause, as the Court held in Erznoznik. But why
would it violate the Establishment Clause? Or is it that it would avoid
Establishment Clause violation only because many people also don't want to see
nudity for their own nonreligious reasons (though again I think that some women
may enjoy single-sex swimming for nonreligious reasons).
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Schwartzman, Micah
Jacob (mjs4d)
Sent: Monday, June 06, 2016 6:23 PM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: Facially neutral accommodations motivated by some objectors'
religious beliefs
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.
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