1. Like Meir, I interpreted Hillel’s post as suggesting that
the assumptions he attributes to Jewish modesty laws are “negative.” Hillel
wrote, “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.”
I assume that there would be little problem with the law reflecting or
reinforcing positive messages about women’s and girls’ bodies; indeed, the
government tries to send such messages often. Indeed, consider Hillel’s
followup post about my Wiccan hypothetical. I hypothesized a town where “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.” Hillel suggested
that it might be different from the Orthodox Jewish example, because “the
history and social context may be different enough to matter.” But this
difference, in my hypo, is simply that the assumptions about women’s and girl’s
bodies embedded in Wiccan views would be positive, rather than negative.
Maybe I misunderstood the message Hillel was trying to send, but I wanted to
explain why I think Meir shouldn’t be faulted for understanding an implicit
“[negative]” in Hillel’s post.
2. But more broadly, as to judges’ considering “history and
social context” in determining and evaluating the “assumptions and norms” that
an accommodation would “reflect” or “reinforce,” wouldn’t that itself pose far
more of an endorsement problem that it would solve? (I agree, by the way, with
the recent post that said that the endorsement test shouldn’t apply to
government accommodations, but let’s set that aside for a moment.) Courts
would have to decide, as a matter of constitutional law, just what are the
assumptions and norms on which a religious law is based – a matter that members
of the religion might bitterly disagree on. And a judgment that, for instance,
the Wiccan assumptions are something that government actions may reflect or
reinforce, but that the Orthodox Jewish assumptions are something that
government actions may not reflect or reinforce, seems very likely to be
understood as endorsement of Wiccan theology (as being founded on good
assumptions) and disapproval of Orthodox Jewish theology (as being founded on
bad ones). Can that be right?
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin
Sent: Tuesday, June 07, 2016 4:17 AM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: Jewish law, women's bodies, and accommodations
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<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:
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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
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