There may well be an Equal Protection Clause problem with
sex-segregated swimming hours (whether or not equal time is given for men-only
swimming). But if the suggestion is that there’s an Establishment Clause
problem – apart from the Equal Protection Clause problem – with the fact that
the government is implementing a religiously based rule, that seems to me not
correct, as McGowan v. Maryland, Harris v. McRae, and Bob Jones Univ. correctly
hold.
More broadly, if a state could (and I agree that it’s a big
“if”) institute sex-segregated swimming hours to accommodate some women’s
secular preferences (as described in the Livingwell case), it seems to me that
a state is equally free to institute sex-segregated swimming hours to
accommodate some women’s religious preferences. (Nor would there be a problem
under the “no religious purpose” prong of Lemon, among other things given that
Corp. of Presiding Bishop has made clear that accommodating religious
preferences is not an impermissible religious purpose.)
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul Finkelman
Sent: Monday, June 06, 2016 9:35 AM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: Jewish law, women's bodies, and accommodations
The last paragraph of Professor Katz's posting below seems to point to why the
separate swimming times are unconstitutional: the City of New York (and the
Courts) have no business (or competence) to regulate religious behavior or
conduct, just as they cannot possibly determine what is kosher and what is not
kosher. The City of NY or any government entity can certainly offer reasonable
accommodations for religious practice. Hence after Goldman v. Weinberger
Congress provided an accommodation for observant Jewish men in the military to
keep their heads covered while indoors. One could imagine the City of New York
having a rule on swimming clothes that would allow swimmers to wear a wet suit
in the pools to conform to their religious views on modesty (assuming there
were no health hazards for such suits bring extra bacteria into the pool).
But, this is not the same as closing the pool to all men in accordance with the
religious preferences of some potential swimmers. Nor would it be permissible
to require men or women to all wear wet suits or other special "modest"
swimming clothes to accommodate men or women who are offended (because of their
religious beliefs) by others swimming in more revealing attire.
******************
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: Meir Katz <meirka...@gmail.com<mailto:meirka...@gmail.com>>
To: religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>
Sent: Monday, June 6, 2016 12:20 PM
Subject: Re: Jewish law, women's bodies, and accommodations
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
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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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