Re: "Religious diversity" as a compelling interest for discrimination in universities?

[Michael Worley]

Good points, as usual, from Eugene.  I have no qualms with them.

On Thu, Jun 2, 2016 at 9:27 PM, Volokh, Eugene  wrote:

>Again, I wonder whether sex-separate swimming really
> “screams inconsistent with every case on the books.”  Consider, for
> instance, *United States v. Virginia*, where Justice Ginsburg’s majority
> opinion stated that “Admitting women to VMI would undoubtedly require
> alterations necessary to afford members of each sex privacy from the other
> sex in living arrangements,” n.19 – not just in bathrooms, I take it, but
> also in barracks / roommate arrangements and the like.  Indeed, the opinion
> left open the possibility that single-sex education may generally be
> constitutional (except when it denies women access to “unique” colleges
> such as VMI, so that the separateness is not equal), n.7.  Would we draw
> “an interesting parallel to racism” here, or would we conclude that sex is
> different enough from race, especially when it comes to “privacy”?  And, if
> so, why would accommodation of slightly different notions of sex-based
> privacy – such as those applicable to swimming rather than to “living
> arrangements” – necessarily be excluded?
>
>
>
>Eugene
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Michael Worley
> *Sent:* Thursday, June 02, 2016 8:17 PM
> *To:* Law & Religion issues for Law Academics 
> *Subject:* Re: "Religious diversity" as a compelling interest for
> discrimination in universities?
>
>
>
> More than fair;  I think I more meant the pool context than the university
> context.
>
>
>
> Separately, this is an interesting parallel to racism.  The Court
> correctly determined with respect to race that separate but equal is
> awful.  In the religious context, for some faiths, can separation be what
> they prefer, even in places that are government-run?
>
>
>
> A religious idea that women in certain faiths get "equal protection" when
> they swim separately screams inconsistent with every case on the books
> (except *Korematsu*, sadly), but in the area of religious diversity,
> isn't the state to be admired for encouraging the expression of beliefs
> different than the consensus?  The state couldn't impose that belief, to be
> sure, but isn't it to be admired for it?
>
>
>
> On Thu, Jun 2, 2016 at 9:08 PM, Volokh, Eugene 
> wrote:
>
>So that universities could give admission preferences to,
> say, evangelical Christians, if they conclude that they are
> underrepresented among students or on the faculty?  To the more devout of
> all faiths, if it thinks they are underrepresented?  I think race-based
> admissions preferences (the programs which are most often defended using
> “racial diversity” arguments) are troublesome enough; religion-based
> preferences strike me as even worse.
>
>
>
>Eugene
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Michael Worley
> *Sent:* Thursday, June 02, 2016 6:01 PM
> *To:* Law & Religion issues for Law Academics 
> *Subject:* Re: thoughts on constitutionality of single-sex hours for
> public pool?
>
>
>
> It is one thing to say religious minorities have no right to shape the law
> so public facilities match their religious sentiments.  It is another thing
> to suggest that our constitution requires public facilities to not serve
> religious minorities.
>
> Is not encouraging religious diversity a compelling interest, under the
> equal protection clause, just like encouraging racial diversity is for law
> schools?
>
>
> ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
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>
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> 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.
>
>
>
>
>
> --
>
> Michael Worley
>
> J.D., Brigham Young University
>
> ___
> To post, send message to Religionlaw@lists.ucla.edu
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> wrongly) forward the messages to others.
>



-- 
Michael Worley
J.D., Brigham Young University
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change 

RE: "Religious diversity" as a compelling interest for discrimination in universities?

[Volokh, Eugene]

   Again, I wonder whether sex-separate swimming really “screams 
inconsistent with every case on the books.”  Consider, for instance, United 
States v. Virginia, where Justice Ginsburg’s majority opinion stated that 
“Admitting women to VMI would undoubtedly require alterations necessary to 
afford members of each sex privacy from the other sex in living arrangements,” 
n.19 – not just in bathrooms, I take it, but also in barracks / roommate 
arrangements and the like.  Indeed, the opinion left open the possibility that 
single-sex education may generally be constitutional (except when it denies 
women access to “unique” colleges such as VMI, so that the separateness is not 
equal), n.7.  Would we draw “an interesting parallel to racism” here, or would 
we conclude that sex is different enough from race, especially when it comes to 
“privacy”?  And, if so, why would accommodation of slightly different notions 
of sex-based privacy – such as those applicable to swimming rather than to 
“living arrangements” – necessarily be excluded?

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Michael Worley
Sent: Thursday, June 02, 2016 8:17 PM
To: Law & Religion issues for Law Academics 
Subject: Re: "Religious diversity" as a compelling interest for discrimination 
in universities?

More than fair;  I think I more meant the pool context than the university 
context.

Separately, this is an interesting parallel to racism.  The Court correctly 
determined with respect to race that separate but equal is awful.  In the 
religious context, for some faiths, can separation be what they prefer, even in 
places that are government-run?

A religious idea that women in certain faiths get "equal protection" when they 
swim separately screams inconsistent with every case on the books (except 
Korematsu, sadly), but in the area of religious diversity, isn't the state to 
be admired for encouraging the expression of beliefs different than the 
consensus?  The state couldn't impose that belief, to be sure, but isn't it to 
be admired for it?

On Thu, Jun 2, 2016 at 9:08 PM, Volokh, Eugene 
> wrote:
   So that universities could give admission preferences to, say, 
evangelical Christians, if they conclude that they are underrepresented among 
students or on the faculty?  To the more devout of all faiths, if it thinks 
they are underrepresented?  I think race-based admissions preferences (the 
programs which are most often defended using “racial diversity” arguments) are 
troublesome enough; religion-based preferences strike me as even worse.

   Eugene

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu]
 On Behalf Of Michael Worley
Sent: Thursday, June 02, 2016 6:01 PM
To: Law & Religion issues for Law Academics 
>
Subject: Re: thoughts on constitutionality of single-sex hours for public pool?

It is one thing to say religious minorities have no right to shape the law so 
public facilities match their religious sentiments.  It is another thing to 
suggest that our constitution requires public facilities to not serve religious 
minorities.

Is not encouraging religious diversity a compelling interest, under the equal 
protection clause, just like encouraging racial diversity is for law schools?

___
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--
Michael Worley
J.D., Brigham Young University
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Re: "Religious diversity" as a compelling interest for discrimination in universities?

[Michael Worley]

More than fair;  I think I more meant the pool context than the university
context.


Separately, this is an interesting parallel to racism.  The Court correctly
determined with respect to race that separate but equal is awful.  In the
religious context, for some faiths, can separation be what they prefer,
even in places that are government-run?

A religious idea that women in certain faiths get "equal protection" when
they swim separately screams inconsistent with every case on the books
(except *Korematsu*, sadly), but in the area of religious diversity, isn't
the state to be admired for encouraging the expression of beliefs different
than the consensus?  The state couldn't impose that belief, to be sure, but
isn't it to be admired for it?

On Thu, Jun 2, 2016 at 9:08 PM, Volokh, Eugene  wrote:

>So that universities could give admission preferences to,
> say, evangelical Christians, if they conclude that they are
> underrepresented among students or on the faculty?  To the more devout of
> all faiths, if it thinks they are underrepresented?  I think race-based
> admissions preferences (the programs which are most often defended using
> “racial diversity” arguments) are troublesome enough; religion-based
> preferences strike me as even worse.
>
>
>
>Eugene
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Michael Worley
> *Sent:* Thursday, June 02, 2016 6:01 PM
> *To:* Law & Religion issues for Law Academics 
> *Subject:* Re: thoughts on constitutionality of single-sex hours for
> public pool?
>
>
>
> It is one thing to say religious minorities have no right to shape the law
> so public facilities match their religious sentiments.  It is another thing
> to suggest that our constitution requires public facilities to not serve
> religious minorities.
>
> Is not encouraging religious diversity a compelling interest, under the
> equal protection clause, just like encouraging racial diversity is for law
> schools?
>
> ___
> 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.
>



-- 
Michael Worley
J.D., Brigham Young University
___
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"Religious diversity" as a compelling interest for discrimination in universities?

[Volokh, Eugene]

   So that universities could give admission preferences to, say, 
evangelical Christians, if they conclude that they are underrepresented among 
students or on the faculty?  To the more devout of all faiths, if it thinks 
they are underrepresented?  I think race-based admissions preferences (the 
programs which are most often defended using “racial diversity” arguments) are 
troublesome enough; religion-based preferences strike me as even worse.

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Michael Worley
Sent: Thursday, June 02, 2016 6:01 PM
To: Law & Religion issues for Law Academics 
Subject: Re: thoughts on constitutionality of single-sex hours for public pool?

It is one thing to say religious minorities have no right to shape the law so 
public facilities match their religious sentiments.  It is another thing to 
suggest that our constitution requires public facilities to not serve religious 
minorities.

Is not encouraging religious diversity a compelling interest, under the equal 
protection clause, just like encouraging racial diversity is for law schools?
___
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RE: thoughts on constitutionality of single-sex hours for public pool?

[Volokh, Eugene]

   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] On Behalf Of Ira Lupu
Sent: Thursday, June 02, 2016 6:48 PM
To: Law & Religion issues for Law Academics 
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 
> 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" 
> 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 
> 
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 
>
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 

Re: thoughts on constitutionality of single-sex hours for public pool?

[Christopher Lund]

I have thought about these issues a little bit over the years, because a 
similar program is in place at Wayne State, where I teach.  (Wayne State is a 
public university.)  The gym here has a "women's only" area, removed from the 
main part of the gym.  Now there are many women's gyms out there, which 
probably reflect how many women (regardless of religion) would rather not work 
out in the company of men.  But I have little doubt that here at Wayne, a big 
part of it is that we have a lot of Muslim women who have deep religious 
concerns about this.  (And you see that last point obliquely referred to in the 
university’s description here, 
https://rfc.wayne.edu/mort-harris/womens-only-area.php.)  Of course, the burden 
on men is much less here at Wayne than in the New York case, because men have 
other machines that they can work out on.  But the burden is not nothing.  
Machines can fill up quickly, because many people try to work out over the 
lunch hour.  I'm sure there are guys out there thinking it would be easier if 
they could just use the machines in the women's area.  But they can’t.

Chip may be right that this is unconstitutional tout court.  This is sex 
discrimination by the state; there’s no disputing that.  I guess that would 
make the “women’s only” area at Wayne unconstitutional.  And that might be the 
right answer.

Even so, I still am interested in the facts here.  How many Orthodox women want 
to use the pool?  And how many hours would it be women-only, and how many hours 
would it be open access?  Are there non-religious people who want womens-only 
or mens-only swim times?  (There might be.)

It’s obviously a huge burden to the men to not be able to use the pool 
(especially, I notice, Saturday afternoon).  But if Orthodox women all feel 
religiously compelled not to swim with men, then a lack of a religious 
accommodation here makes them similarly unable to use the pool.  For the same 
reasons that lack of pool access is a hardship to the men, it's a hardship to 
the women.  Of course, it's true that the women's hardship is, in a sense, 
created by their own religious beliefs.  But that's always the case with 
religious accommodations.  And if we're balancing harms and hardships, I'd note 
an important imbalance here.  Without a religious accommodation, the women 
aren't deprived of the pool for a limited time (as the men would be with a 
religious accommodation); they are deprived of the pool altogether.  I'd want 
to avoid that, if I could.

I still don’t know how to resolve this, but one final thing.  If you look at 
the pool’s schedule, which I think I found here, 
https://www.nycgovparks.org/facilities/recreationcenters/B085/schedule/2016-05-30#Pool,
 you’ll see that there’s virtually no “general swim” times at the pool at 
all—usually only about two hours a day.  Most of the time, the pool seems to be 
reserved for various kinds of things—kids’ swim lessons, water polo, adult lap 
swimming, senior lap swimming.  And if the state is restricting pool access for 
all these other kinds of reasons, the question becomes why it can't do the same 
to accommodate the deeply held views of a minority faith?  I mean, water polo 
is great, but I don't know if it's necessarily more worthy of accommodation 
than Orthodox Judaism.

Best,
Chris
___
Christopher C. Lund
Associate Professor of Law
Wayne State University Law School
471 West Palmer St.
Detroit, MI  48202
l...@wayne.edu
(313) 577-4046 (phone)
(313) 577-9016 (fax)
Website—http://law.wayne.edu/profile/christopher.lund/
Papers—http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402


From: religionlaw-boun...@lists.ucla.edu  
on behalf of Ira Lupu 
Sent: Thursday, June 2, 2016 6:53 PM
To: Law & Religion issues for Law Academics
Subject: Re: thoughts on constitutionality of single-sex hours for public pool?

Not permissible.  An obvious sectarian gerrymander, with unmistakable harm to 
men, who get no comparable single-sex hours in the pool.  And, I suspect, trans 
women are not going to be allowed in the pool during the hours for women only.

A policy that created hours for men (and boys) only, and an equal number of 
hours for women (and girls) only would be easier (though not easy) to defend on 
constitutional grounds, though perhaps even more unpopular for its detrimental 
effects on family swimming.

On Thu, Jun 2, 2016 at 6:18 PM, Marty Lederman 
> wrote:
permissible accommodation?

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

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RE: thoughts on constitutionality of single-sex hours for public pool?

[Volokh, Eugene]

   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 
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" 
> 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 
> 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 
>
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 

Re: thoughts on constitutionality of single-sex hours for public pool?

[Ira Lupu]

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 
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"  > 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  > 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 > >
>> *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*
>>
>>

Re: thoughts on constitutionality of single-sex hours for public pool?

[Alan E Brownstein]

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" 
> 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 
> 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 
>
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





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From: "Volokh, Eugene" 
>
To: Law & Religion issues for Law Academics 
>
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.

  

Re: thoughts on constitutionality of single-sex hours for public pool?

[Michael Worley]

It is one thing to say religious minorities have no right to shape the law
so public facilities match their religious sentiments.  It is another thing
to suggest that our constitution requires public facilities to not serve
religious minorities.

Is not encouraging religious diversity a compelling interest, under the
equal protection clause, just like encouraging racial diversity is for law
schools?


On Thu, Jun 2, 2016 at 6:48 PM, Ira Lupu  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  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 > >
>> *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 <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" 
>> *To:* Law & Religion issues for Law Academics 
>>
>> *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 

Re: thoughts on constitutionality of single-sex hours for public pool?

[Ira Lupu]

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  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  >
> *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"  >
> *To:* Law & Religion issues for Law Academics  >
> *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

RE: thoughts on constitutionality of single-sex hours for public pool?

[Volokh, Eugene]

   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 
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" >
To: Law & Religion issues for Law Academics 
>
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 
>
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 

RE: thoughts on constitutionality of single-sex hours for public pool?

[Volokh, Eugene]

   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 
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





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Call from mobile
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From: Marty Lederman >
To: Law & Religion issues for Law Academics 
>
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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thoughts on constitutionality of single-sex hours for public pool?

[Marty Lederman]

permissible accommodation?

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