This is a brief response, but let's assume that religious accommodations can be justified for religious reasons or for secular reasons or both. In some cases, the government might have secular reasons. But in other cases, the facts might suggest that the underlying religious reasons are the actual purpose for the law. Maybe similar accommodations aren't granted in other jurisdictions, where religious reasons aren't presented. Arguments about gerrymandering might support claims of this kind.
In any event, I haven't claimed that single-sex swimming might be justified on secular grounds but not on grounds of religious accommodation (whether the motivation for the accommodation is secular or religious). And indeed, I disclaimed the argument that a motivation to accommodate would necessarily make such an accommodation impermissible. But if such an accommodation is impermissible when adopted for (first-order) secular reasons, and if it would otherwise violate the Equal Protection Clause, then I don't see how an argument based on religious accommodation saves it. And indeed, I think there are further Establishment Clause concerns, something about which we seem to disagree. Re: Erznoznik, I'm not sure I follow your question. Are you asking: if the ban was motivated for religious reasons, would that offend the Establishment Clause (in addition to the Free Exercise Clause)? Maybe Clayton v. Place, involving a ban on dancing in public schools, is an example of the kind you have in mind? Is your view that a prohibition on speech (or otherwise permissible expressive conduct) justified solely on the basis of religious reasons would nonetheless be permissible under the Establishment Clause? On Jun 6, 2016, at 10:33 PM, "Volokh, Eugene" <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote: 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> [mailto:religionlaw-boun...@lists.ucla.edu<mailto: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<mailto: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. _______________________________________________ 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.
