I confess I'm stymied by the objection Meir has articulated to my offending paragraph. Jewish laws regarding modesty surely *must* reflect certain assumptions about women's bodies . Why else would there be a religious law concerning mixed swimming (or women singing in front of men, or showing their elbows or knees, or in the case of married women, their hair, and so forth?). You'll note that Meir added a key word in brackets--that the assumptions I attribute to the law are "negative"--that was not present in my original. Is it good form to criticize someone for things s/ he did not say? I was taught not.
I made no claim as to what those assumptions are, and this may well be open to debate. But *that* there are assumptions underlying this religious principle is, indeed, beyond dispute. Incidentally, I was taught in my roughly 20 years in various yeshivot that these assumptions relate to women's bodies being sexual, and therefore that they should be covered when men are present (except in the case of a spouse, and then only sometimes). Even in saying that, I am *still *not making a value-laden claim about the assumption--true, false, positive, negative, or otherwise. In any event, I have no objection to a co-religionist (or anyone else) challenging this account of the underlying assumption or framing it otherwise . I continue to think, as a normative matter at least ( I guess what Eugene means by "as a basis for political opposition"), that assumptions --whatever they are , and whether their source is religious or not -- about women's bodies in particular that relate to sexual modesty should not be reflected in and reinforced by the law. To be sure, this does not respond to the question both Eugene and Meir raise: should judges take into account an underlying , embedded assumption/message ? I'm not sure what the answer to that question is, but at the very least we do know that judges do take into account in estab clause cases the question of what a reasonable observer would likely understand -- how s/he would interpret the gov action. To get at that question, judges consider history and social context. That might distinguish this case from Eugene's Wiccan example --the history and social context may be different enough to matter . In the end, though, I'm not sure how this issue cuts in this case , and I don't have religion on the question. In any event, I'm not convinced there's an Establishment Clause problem here under the third party harms analysis. Random men (and women, boys, girls . . . . ) are excluded from the pool for all kinds of reasons at many times of the day, as Chris pointed out --to accommodate water polo, those learning to swim, learners with disabilities, adult lap swimmers, seniors, etc . Exclusion from the pool for the sake of others is just one of those things that this society has accepted for itself. At the very least, it suggests that the third party harm here is minimal indeed, since this society apparently tolerates that harm (exclusion from the pool) in spades. Recall that the problem with the statute in *Thornton v Caldor*, was that *only* religious people were permitted to impose on third parties; had the law allowed *everyone* to take off on the day of their choosing, or perhaps had it even allowed religious accommodations among a menu of other accommodations--it would not have violated the Establishment Clause. This is true even though a particular person choosing to take off a particular day--and thus imposing on someone else--may well be motivated by religious beliefs. As several have noted or implied, the swimming pool case presents obvious Equal Protection problems, more so than it does Establishment Clause issues (though I do not discount the possibility of an EC violation). Indeed, the fact that there are no "men's only" hours makes this an *easy* EP case. "Separate but equal" may be acceptable in some gender segregation cases under EP. Separate-gender bathrooms are presumptively permissible under EP; separate gendered schools may be tolerated in some circumstances. But offering *only* women's bathrooms or *only* boys' schools isn't an option, right? If they added men's only swim hours, the EP case becomes more difficult. My instinct (and it is only that) is that it would still be unconstitutional; but at a minimum the EP clause requires *at least* formal equality. On Monday, June 6, 2016, 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> > To: Law & Religion issues for Law Academics > <religionlaw@lists.ucla.edu> > Subject: Jewish law, women's bodies, and accommodations > Message-ID: > > <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.
