I agree that accommodations of a religious group re: a public benefit -- e.g., Eugene's example of a girls' basketball team that wants to wear more modest uniforms -- are not per se impermissible. If they help the group participate, and cause no harm, we should applaud them.
But the swimming pool case is all about harm, and as framed in NYC, it is about harm to men only, because there are no male only swimming hours. I responded first to Marty, and said this was not permissible because of that harm. I did not separate Equal Protection norms from Establishment Clause norms when I wrote that, and there is a deeper question lurking in that move. Equal protection claims can be defeated by showing that the classification is substantially related to important interests. There is a balancing methodology there, tilted against the state, with a still more state-limiting caveat that sex classifications must not reinforce over broad generalizations and stereotypes about sex roles. The NYC accommodation certainly seems to reinforce such generalizations about female demands for modesty. Compare Establishment Clause norms re: third party harms. Here, we have much less law to go on, but we do have Estate of Thornton v. Caldor and its holding that accommodations of the religious practices (Sabbath observance) of some employees cannot be allowed to work absolute impositions on the needs of others (employers and other employees). Is that a balancing test? If it is, how does a court balance religious needs against the competing secular harms? Or is it NOT a balancing test at all, as some list members and others have suggested (i.e., religious accommodations are unconstitutional if they work material/significant/meaningful harm to 3rd parties)? If you were litigating this on behalf of challengers to the NYC policy, you would of course raise both Equal Protection and Establishment Clause challenges. Which would be stronger? On Thu, Jun 2, 2016 at 9:51 PM, Volokh, Eugene <vol...@law.ucla.edu> wrote: > There are three issues here, I think. One is whether this > is properly seen as a form of religious accommodation; I think Alan is > quite right that it is. Just to give an example, say that a city-run > basketball league at a city-run rec center had a uniform that some > religious women found immodest, and the city gave them an exemption > allowing them to wear, say, skirts instead of shorts. I think we’d rightly > view this as an accommodation (whether or not constitutionally or > statutorily mandated), even though no one has to play basketball in the > city-run league. > > > > A second is whether, even apart from a desire for religious > accommodation, a city is constitutionally allowed – despite the Equal > Protection Clause – to have women-only hours at the swimming pool, for the > benefit of women from cultural groups whose sense of modesty is different > from the national majority’s. (There’s a separate question of whether the > city would also have to have matching men-only hours as well.) > > > > The theory here would be that we have single-sex rules to accommodate the > majority’s modesty concerns (in shower rooms, dressing rooms, and the > like), and that it’s constitutionally permissible to have slightly broader > single-sex rules to accommodate a cultural minority group’s modesty > concerns. (Indeed, one interesting case on the subject – though perhaps > involving not just modesty concerns but body image concerns – was a > Pennsylvania public accommodations law case from 1991 involving a private > women-only health club, didn’t involve religious accommodations at all, but > rather a health club that catered to some women’s preference for working > out without men present.) > > > > The third issue is whether, *if* single-sex hours at pools > are presumptively unconstitutional under the Equal Protection Clause – and, > again, we’d need to decide whether they are – that presumption can be > rebutted by the interest in accommodating religious groups. > > > > Eugene > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Alan E Brownstein > *Sent:* Thursday, June 02, 2016 6:19 PM > > *To:* Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> > *Subject:* Re: thoughts on constitutionality of single-sex hours for > public pool? > > > > 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> 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> 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] *On Behalf Of *Paul Finkelman > *Sent:* Thursday, June 02, 2016 5:37 PM > *To:* Law & Religion issues for Law Academics <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 c) 518.605.0296* > > and > > *Senior Fellow* > > *Democracy, Citizenship and Constitutionalism Program* > > *University of Pennsylvania* > > > > > > > > > > > > Call > > Send SMS > > Call from mobile > > Add to Skype > > You'll need Skype CreditFree via Skype > > > ------------------------------ > > *From:* "Volokh, Eugene" <vol...@law.ucla.edu> > *To:* Law & Religion issues for Law Academics <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] *On Behalf Of *Paul Finkelman > *Sent:* Thursday, June 2, 2016 4:03 PM > *To:* Law & Religion issues for Law Academics <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 c) 518.605.0296* > > and > > *Senior Fellow* > > *Democracy, Citizenship and Constitutionalism Program* > > *University of Pennsylvania* > > > > > > > > > > > > Call > > Send SMS > > Call from mobile > > Add to Skype > > You'll need Skype CreditFree via Skype > > > > > ------------------------------ > > *From:* Marty Lederman <lederman.ma...@gmail.com> > *To:* Law & Religion issues for Law Academics <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 > > > _______________________________________________ > 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. > > > > _______________________________________________ > 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. > > > > > > -- > > 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 > 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. > -- 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 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.
