It seems to me that hiring only men to collect garbage or drive
buses in this situation would violate the Equal Protection Clause - whether the
motivation is to accommodate people's religious views, to spare women jobs in
what are seen as demeaning or dangerous positions (to offer a secular
rationale), or any other such rationale.
On the other hand, say that the accommodation doesn't violate
the Equal Protection Clause, or any other constitutional provision; there too
the accommodation is constitutional, whether the motivation is religious or
secular - that's the no-abortions-in-county-hospitals example.
Eugene
From: [email protected]
[mailto:[email protected]] On Behalf Of Alan E Brownstein
Sent: Monday, June 06, 2016 4:46 PM
To: Law & Religion issues for Law Academics <[email protected]>
Subject: RE: Facially neutral accommodations motivated by some objectors'
religious beliefs
I was focusing on the second part of Chip's post - not the first part. But I
think Chip's first argument may be more difficult to resolve than Eugene
suggests. The first question would be whether as a theoretical matter there can
be a technically facially neutral law that is so clearly a religious
accommodation that it is the equivalent of Lukumi, but in reverse - a
religious gerrymander that has no other purpose than to permit members of a
particular faith to practice their religion or to otherwise accommodate their
beliefs. The second question would be exactly what criteria identifies such a
gerrymandered accommodation. Third, if the state action can be characterized as
a religious accommodation, then we would have to decide whether the harms
imposed on third parties violate the Establishment Clause.
The limited location of the alleged accommodation would probably be relevant to
the analysis, although it may not be dispositive. Still, suppose a faith
community makes up a very large percentage of a neighborhood. The community is
religiously opposed to women working outside the home and believes it would be
sacrilegious for women to collect the garbage from their houses or drive a city
run bus in the community's neighborhood on which they would ride. If the
government accommodates the religious group by hiring only men to collect the
garbage or drive the bus in this neighborhood (thus deviating from the hiring
policies applied everywhere else in the city), would that violate the
Establishment Clause? (Again, leaving equal protection issues aside).
Alan
From:
[email protected]<mailto:[email protected]>
[mailto:[email protected]] On Behalf Of Volokh, Eugene
Sent: Monday, June 06, 2016 3:47 PM
To: Law & Religion issues for Law Academics
Subject: Facially neutral accommodations motivated by some objectors' religious
beliefs
1. Say that a state decides not to allow abortions at
state-owned hospitals, because taxpayers object to paying for them. We know
this is constitutionally permissible, and doesn't violate the Establishment
Clause, see Harris v. McRae. It doesn't matter whether the taxpayers object to
abortion for secular reasons or religious reasons; the state can choose not to
fund them, without violating the Establishment Clause. And that is so even
though one can call this a "burden" on third parties, who as a result find it
harder to get abortions.
2. Now say that a state doesn't regulate this at a state level,
but leaves it for each hospital to make this decision (based on its sense of
the preferences of local taxpayers, local employees, etc.). Unsurprisingly,
county hospitals in areas where anti-abortion sentiment is more common choose
not to provide abortions, while county hospitals in other areas do provide
them. Does this somehow become an impermissible "religious gerrymander,"
simply because the state leaves this for local hospitals to decide?
3. If it doesn't violate the Establishment Clause for
individual county hospitals to decide whether to provide abortions, why would
it violate the Establishment Clause for individual city-run swimming pools to
decide whether to provide single-sex swimming hours? (Again, I set aside the
question whether this violates the Equal Protection Clause, quite apart from
the religious questions.)
Eugene
From:
[email protected]<mailto:[email protected]>
[mailto:[email protected]] On Behalf Of Alan E Brownstein
Sent: Monday, June 06, 2016 2:21 PM
To: Law & Religion issues for Law Academics
<[email protected]<mailto:[email protected]>>
Subject: Re: Jewish law, women's bodies, and accommodations
I think the answer to Chip's question is that an Establishment Clause analysis
evaluating the harms caused by a religious accommodation does require a
balancing of interests. Indeed, the balancing analysis would have significant
similarities to the balancing necessary to implement a serious free exercise
jurisprudence.
Balancing has its problems, but the alternatives seem worse: either we reject
accommodations that impose costs on third parties -- an approach which severely
limits accommodations -- or we allow all accommodations without regard to the
costs they impose on third parties.
Note that this approach could include a variety of doctrinal nuances and
distinctions as is true for free speech doctrine, but it is hard to avoid some
role for balancing if we are going to take account of both the need for
accommodations and the harms accommodations may impose on third parties.
Alan
Sent from my iPhone
On Jun 6, 2016, at 9:51 AM, "Ira Lupu"
<[email protected]<mailto:[email protected]>> wrote:
I agree that it's not for the state to arbitrate between Hillel's and Meir's
view about what is embedded in Jewish law with respect to women's bodies. But
I want to go back to Eugene's earlier argument that 3rd party harms are not
relevant to the Establishment Clause problem because the accommodation is not
religion-specific -- that is, the hours are "women only," not "Jewish women
only." True enough, but there is still a gerrymander here -- this is not a
City wide policy. It applies only to this one neighborhood pool, in a
neighborhood with a strong Orthodox Jewish presence. (If the policy were
city-wide, it would help all women who want female-only swimming hours, for
whatever reason. The sex discrimination problem would remain.) In light of the
conspicuous religious gerrymander, perhaps we need to add Kiryas Joel to the
mix of relevant cases.
When the policy is 1) motivated by religion specific concerns, and 2)
geographically limited to reflect those concerns, perhaps the Caldor problem of
harms to third parties (men, who want those hours to swim, and the weekday
hours may be just as important to some of them as the Sunday hours) remains.
If so, I repeat the question -- is the relevant test one of "balancing"
religious accommodations against inconvenience to others? How would we do
that, with or without interrogating religious reasoning?
On Mon, Jun 6, 2016 at 12:20 PM, Meir Katz
<[email protected]<mailto:[email protected]>> 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" <[email protected]><mailto:[email protected]>
To: Law & Religion issues for Law Academics
<[email protected]><mailto:[email protected]>
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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--
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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