Is it fair to say that Eugene is presenting a minimum rationality account of 
the state interest here. No doubt he is correct that there are marginal 
benefits to feeling confident in water--which I lament that I never have--but 
that is true also, say, with regard to the benefits of eating broccoli.

I'm all for accommodations that impose no serious costs on non-believers. This 
doesn't strike me as such a case. I suppose the most serious problem for me 
involves all the other constraints on open access. If the kids or lap swimmers 
are treated as special, then why not the religious?  A good exam question!

Sandy

Sent from my iPhone

On Jun 3, 2016, at 4:08 AM, Volokh, Eugene 
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote:

               Government interests in people going to the pool are at least of 
some importance.  Pool time helps people learn to swim, which can prevent 
drownings; further pool time helps them improve their swimming, which can 
further help prevent drownings (and help people become strong enough swimmers 
that they can rescue others).  Swimming is good exercise, which can improve 
people’s health.  And there is a significant government interest in having 
people of all religions being able to take advantage of the services that are 
paid for with their tax dollars.

               The key question, I think, is what kind of justification is 
required here.  Are single-sex places aimed at protecting privacy and modesty, 
such as single-sex changing rooms, constitutional only because they pass the 
usual very demanding Equal Protection Clause scrutiny for sex classifications?  
Or is it that there is a lesser standard of scrutiny for single-sex programs 
aimed at protecting privacy and modesty, much as the Court has said that there 
is a lesser standard for sex classifications that reflect real biological 
differences (such as the difference in the difficulty of proving paternity 
versus maternity)?  And if there is such a lesser standard, would it extend to 
programs aimed at protecting privacy and modesty as understood by a minority 
cultural group, even when that departs from the national majority’s 
understanding of privacy and modesty?

               Eugene



From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Thursday, June 02, 2016 6:48 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: thoughts on constitutionality of single-sex hours for public pool?

I strongly suspect Alan's Adventist basketball team example involves 
discrimination, because no games were scheduled on Sunday. The discrimination 
is the burden from which relief is deserved.
Religious diversity in higher education might well be a compelling interest, so 
CUNY might want to accommodate religious minorities re: privacy or modesty 
concerns, though there would remain questions of harm to third parties. 
Religious diversity in public swimming pools does not seem to present an 
interest of any importance whatsoever.

On Thursday, June 2, 2016, Alan E Brownstein 
<aebrownst...@ucdavis.edu<mailto:aebrownst...@ucdavis.edu>> wrote:
I think it is both reasonable and valid to accommodate religious groups whose 
members would be unable to enjoy benefits that the majority enjoys  because of 
conflicts with a minority faiths beliefs.
No one has to attend the prom or go on discretionary field trips or play in 
intra mural sports. But these are valued opportunities.I fully appreciate that 
the cost of accommodations may be too high -- as it often will be if it 
requires discrimination against third parties. But that is very different than 
arguing there is no valid interest in providing accommodations in these cases.
Years ago I helped out in a case involving an Adventist high school that was 
barred from playing in a state basketball tournament because they asked for an 
accommodation so they would not have play on the Sabbath.
If their games could be scheduled to avoid playing on the Sabbath at minimal 
cost to others, why shouldn't their religious beliefs be accommodated? The fact 
that there is no requirement to play in state basketball tournaments seems to 
me to be an unpersuasive basis for denying an accommodation in this kind of a 
case.
Alan

Sent from my iPhone

On Jun 2, 2016, at 7:49 PM, "Ira Lupu" 
<icl...@law.gwu.edu<javascript:_e(%7B%7D,'cvml','icl...@law.gwu.edu');>> wrote:
Paul is raising, among other questions, an entirely appropriate baseline 
question -- how do sexually integrated public pools burden anyone's religious 
freedom? No one is coerced to use them. The pools are a constitutionally 
gratuitous benefit, offered on conventional conditions of no sex 
discrimination. If there is no burden on religious freedom, then there is no 
justification for an accommodation.

On Thursday, June 2, 2016, Volokh, Eugene 
<vol...@law.ucla.edu<javascript:_e(%7B%7D,'cvml','vol...@law.ucla.edu');>> 
wrote:
               I think Prof. Finkelman and I might be talking past each other 
here, but I’d love to hear what others think.

               Eugene

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul Finkelman
Sent: Thursday, June 02, 2016 5:37 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: thoughts on constitutionality of single-sex hours for public pool?

single sex dressing rooms do not discriminate against anyone he way the pool 
does. I assume the dressing rooms are not arbitrarily closed to only allow one 
sex to use any dressing room.

Eugene, I actually doubt there are any people on this list (or very many on law 
faculties) or in the US who would think that single sex dressing rooms are 
unconstitutional.  So why raise the analogy.

The issue here is whether you deny access because a religious group demand its; 
given the racial arguments of many religious groups (going back to proslavery 
religious thought and going to Bob Jones University and beyond) it is not 
impossible to imagine a single race religious argument.  Some religious groups 
have been making them for 150 years or more. (If you want examples of early 
versions, see Paul Finkelman, Defending Slavery: Proslavery Thought in the Old 
South).  So, it is not impossible or implausible to make the analogy here.

I don't see what the accommodation is.  IF you have a university of high school 
that requires a swimming test to graduate (I knew someone who almost did not 
graduate from college because she could not pass the swimming test, in 1968), 
then there might be an accommodation issue.  But, short of a requirement that 
people go swimming in the public pool, what is the accommodation here?

Anyone can use the pool any time; anyone can choose not to use the pool any 
time.   No one is required to use the pool ever. What is the accommodation 
issue?


******************
Paul Finkelman
Ariel F. Sallows Visiting Professor of Human Rights Law
College of Law
University of Saskatchewan
15 Campus Drive
Saskatoon, SK  S7N 5A6
CANADA
paul.finkel...@yahoo.com<mailto:paul.finkel...@yahoo.com>
c) 518.605.0296
and
Senior Fellow
Democracy, Citizenship and Constitutionalism Program
University of Pennsylvania





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________________________________
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>>
Sent: Thursday, June 2, 2016 7:45 PM
Subject: RE: thoughts on constitutionality of single-sex hours for public pool?

               I’m not at all sure that this form of sex classification is 
constitutional.  But, as is often the case with analogies between single-sex 
and single-race, I don’t think the simple sex/race analogy is helpful here.

               I take it that few of us would think that single-sex dressing 
rooms are “about as constitutional as single race dressing rooms.”  The 
government can legitimately accommodate some sorts of privacy/modesty concerns, 
at least when it comes to people seeing each other in a state of undress or 
near-undress.  Then-Professor Ginsburg so wrote in the 1970s in response to 
criticism of the ERA; Justice Ginsburg so noted in United States v. Virginia; 
many courts have even said that denial of such privacy (e.g., in prisons, where 
prisoners are searched by guards of the opposite sex) is a constitutional 
violation.  Perhaps Justice Ginsburg is tantamount to a racial segregationist, 
but I doubt it.

               Of course, the exposure of one’s body at a swimming pool isn’t 
the same as the exposure in a shower or even in a changing room; we know that 
precisely because our culture generally has mixed-sex swimming pools but 
single-sex changing rooms.  But some cultures, especially some 
religiously-linked cultures, draw the privacy/modesty line in a somewhat 
different place – not a vastly different place, but a significantly different 
place.  The question is to what extent government actors (and, under public 
accommodation laws, private institutions) may accommodate that differently 
placed line.  Categorically equating sex classifications with race 
classifications, I think, doesn’t really help us answer that question.

               Eugene

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul Finkelman
Sent: Thursday, June 2, 2016 4:03 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: thoughts on constitutionality of single-sex hours for public pool?

This seems about as constitutional as single race swimming pools.

I appreciate the desire of Ultra Orthodox Jews to live the life they want to 
life. That is what the Constitution protects.  But it also protects the rights 
of everyone else to live their lives.  That has to mean equal access to all 
pools.

There is also an interesting glitch.  Some of my Orthodox male relatives and 
friends are uncomfortable around women in  "immodest" dress are swimming pools. 
 So they might need single sex pools as well.

Then there are all sorts of transgender issues, too complicated to imagine.

******************
Paul Finkelman
Ariel F. Sallows Visiting Professor of Human Rights Law
College of Law
University of Saskatchewan
15 Campus Drive
Saskatoon, SK  S7N 5A6
CANADA
paul.finkel...@yahoo.com<mailto:paul.finkel...@yahoo.com>
c) 518.605.0296
and
Senior Fellow
Democracy, Citizenship and Constitutionalism Program
University of Pennsylvania





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________________________________
From: Marty Lederman <lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>>
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Sent: Thursday, June 2, 2016 6:18 PM
Subject: thoughts on constitutionality of single-sex hours for public pool?

permissible accommodation?

http://www.nytimes.com/2016/06/01/opinion/everybody-into-the-pool.html

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--
Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law, Emeritus
George Washington University Law School
2000 H St., NW
Washington, DC 20052
(202)994-7053
Co-author (with Professor Robert Tuttle) of "Secular Government, Religious 
People" ( Wm. B. Eerdmans Pub. Co., 2014))
My SSRN papers are here:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg

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--
Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law, Emeritus
George Washington University Law School
2000 H St., NW
Washington, DC 20052
(202)994-7053
Co-author (with Professor Robert Tuttle) of "Secular Government, Religious 
People" ( Wm. B. Eerdmans Pub. Co., 2014))
My SSRN papers are here:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg

_______________________________________________
To post, send message to 
Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu>
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