I appreciate Chip’s concerns, but I wonder how far they can go.
A cafeteria at a government-run institution decides to offer kosher options,
because there happen to be quite a few observant Jewish patrons or employees
who eat there. The decision is a local one, made by the local manager, without
any overarching government policy. Should that be rejected because we can’t
have complete confidence that the government would likewise offer halal meals
if at some point some similar institution ends up having quite a few observant
Muslim patrons or employees?
Or say that a school in a heavily Jewish area closes for Rosh
Hashanah and Yom Kippur. Should that be found unconstitutional because we
can’t have complete confidence that a different school in the same district (or
for that matter, a whole different school district) would do the same for
Muslim holidays in heavily Muslim areas?
Or say that a government employer accommodates an employee’s
religious concerns, even beyond what is required by Title VII. Say, for
instance, that there is a more de minimis burden for the employer in exempting
an employee from, say, handling alcohol, or in allowing the employee three
weeks off to go on a pilgrimage to Mecca. Should that be found
unconstitutional because we can’t have complete confidence that the government
employer would similarly accommodate other religious objectors who have
similarly burdensome accommodation requests?
I would think the answer to all these questions is “no,”
especially when the accommodation don’t require the government to decide who
belongs to a particular religion and who doesn’t. (The Mecca pilgrimage /
alcohol handling example may actually be harder in this respect, but the first
two, and the single-sex hours example, don’t pose this problem.) Requiring
executive agencies that deal with customer and employee needs to accommodate
through general rule, or not at all, would lead to many fewer accommodations.
And I don’t think the single-sex swimming hours situation is any different.
And the concern about discrimination, I take it, would usually be dealt with by
offering later applicants an opportunity to demand equal treatment with the
applicants whose objections were granted (enforceable with a lawsuit and an
injunction if necessary), assuming that the accommodation is indeed comparably
inexpensive. In Kiryas Joel, which involved a special statute, such a claim
might not have been easily available. But when it comes to executive action,
the notion that courts can compel the government to treat employees and patrons
equally, and to give benefits to similarly situated people without regard to
religion, seems pretty familiar.
Eugene
Chip Lupu writes:
2. The Kiryas Joel problem is not about third party harms; it's about
sectarian discrimination. Would any other religious minority in NYC (Muslims,
for example) be able to get women only pool hours in their neighborhood? I
understand there may be problems of proof if they have never tried, and the
case may turn on the role of the City in tolerating a sex-based policy, in this
neighborhood, that the City would not tolerate elsewhere. But there are
questions here, to which Alan Brownstein alluded when he asked if this were
Lukumi reversed -- an intentionally sect-based benefit, not available to others.
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