Re: Accommodations and "non-religious reasons"

[Schwartzman, Micah Jacob (mjs4d)]

This is a brief response, but let's assume that religious accommodations can be 
justified for religious reasons or for secular reasons or both. In some cases, 
the government might have secular reasons. But in other cases, the facts might 
suggest that the underlying religious reasons are the actual purpose for the 
law. Maybe similar accommodations aren't granted in other jurisdictions, where 
religious reasons aren't presented. Arguments about gerrymandering might 
support claims of this kind.

In any event, I haven't claimed that single-sex swimming might be justified on 
secular grounds but not on grounds of religious accommodation (whether the 
motivation for the accommodation is secular or religious). And indeed, I 
disclaimed the argument that a motivation to accommodate would necessarily make 
such an accommodation impermissible. But if such an accommodation is 
impermissible when adopted for (first-order) secular reasons, and if it would 
otherwise violate the Equal Protection Clause, then I don't see how an argument 
based on religious accommodation saves it. And indeed, I think there are 
further Establishment Clause concerns, something about which we seem to 
disagree.

Re: Erznoznik, I'm not sure I follow your question. Are you asking: if the ban 
was motivated for religious reasons, would that offend the Establishment Clause 
(in addition to the Free Exercise Clause)? Maybe Clayton v. Place, involving a 
ban on dancing in public schools, is an example of the kind you have in mind? 
Is your view that a prohibition on speech (or otherwise permissible expressive 
conduct) justified solely on the basis of religious reasons would nonetheless 
be permissible under the Establishment Clause?


On Jun 6, 2016, at 10:33 PM, "Volokh, Eugene" 
>
 wrote:

   I’m intrigued by the question about sufficient non-religious 
reasons.  If the question is really whether the government has some reasons for 
an accommodation that don’t just stem from the governors’ own religious 
beliefs, I would think they’d almost always be present.  Here, for instance, 
the government may want to promote the health (or just happiness) of women who 
would otherwise not go the pool.  After all, the government has secular reasons 
for having pools in the first place: the public’s health and pleasure.  If it 
sees that some part of the community feels unable to enjoy the pools, for 
religious reasons or otherwise, there would be ample non-religious reasons to 
jigger the rules in order to make the pools appealing to that part (and to make 
sure that this part gets its taxes’ worth).  Now maybe there are Equal 
Protection Clause constraints on what the government can do here.  But there 
surely are non-religious reasons.

   Of course, maybe the question is whether the government has some 
reasons for an accommodation that don’t just stem from the accommodated 
people’s religious beliefs.  But why should that be the question?  Why would a 
single-sex pool rule be justified if motivated by the Livingwell secular 
women’s concern, and not if motivated by Orthodox Jewish (or traditionalist 
Muslim) women’s concerns?

   Finally, to respond to the last paragraph, say that it turns out 
that the law in Erznoznik v. City of Jacksonville, which banned the display of 
nudity on drive-in theaters, were motivated in large part by the sense that 
many people thought it was offensive to their sense of modesty to be 
unwillingly confronted by large moving color pictures of nudity.  The law would 
still violate the Free Speech Clause, as the Court held in Erznoznik.  But why 
would it violate the Establishment Clause?  Or is it that it would avoid 
Establishment Clause violation only because many people also don’t want to see 
nudity for their own nonreligious reasons (though again I think that some women 
may enjoy single-sex swimming for nonreligious reasons).

   Eugene


From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On 
Behalf Of Schwartzman, Micah Jacob (mjs4d)
Sent: Monday, June 06, 2016 6:23 PM
To: Law & Religion issues for Law Academics 
>
Subject: Re: Facially neutral accommodations motivated by some objectors' 
religious beliefs

The ban on abortion doesn't violate the Establishment Clause because there are 
sufficient non-religious reasons to justify the ban. If the only reasons 
sufficient to justify the ban were religious, that would contravene the secular 
purpose requirement.

To answer your question below, I'm not arguing that religious accommodations 
that are otherwise consistent with the Equal Protection Clause are 
unconstitutional simply because they are motivated to accommodate religious 
believers. That would be to rule out all religious accommodations 

Accommodations and "non-religious reasons"

[Volokh, Eugene]

   I'm intrigued by the question about sufficient non-religious 
reasons.  If the question is really whether the government has some reasons for 
an accommodation that don't just stem from the governors' own religious 
beliefs, I would think they'd almost always be present.  Here, for instance, 
the government may want to promote the health (or just happiness) of women who 
would otherwise not go the pool.  After all, the government has secular reasons 
for having pools in the first place: the public's health and pleasure.  If it 
sees that some part of the community feels unable to enjoy the pools, for 
religious reasons or otherwise, there would be ample non-religious reasons to 
jigger the rules in order to make the pools appealing to that part (and to make 
sure that this part gets its taxes' worth).  Now maybe there are Equal 
Protection Clause constraints on what the government can do here.  But there 
surely are non-religious reasons.

   Of course, maybe the question is whether the government has some 
reasons for an accommodation that don't just stem from the accommodated 
people's religious beliefs.  But why should that be the question?  Why would a 
single-sex pool rule be justified if motivated by the Livingwell secular 
women's concern, and not if motivated by Orthodox Jewish (or traditionalist 
Muslim) women's concerns?

   Finally, to respond to the last paragraph, say that it turns out 
that the law in Erznoznik v. City of Jacksonville, which banned the display of 
nudity on drive-in theaters, were motivated in large part by the sense that 
many people thought it was offensive to their sense of modesty to be 
unwillingly confronted by large moving color pictures of nudity.  The law would 
still violate the Free Speech Clause, as the Court held in Erznoznik.  But why 
would it violate the Establishment Clause?  Or is it that it would avoid 
Establishment Clause violation only because many people also don't want to see 
nudity for their own nonreligious reasons (though again I think that some women 
may enjoy single-sex swimming for nonreligious reasons).

   Eugene


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Schwartzman, Micah 
Jacob (mjs4d)
Sent: Monday, June 06, 2016 6:23 PM
To: Law & Religion issues for Law Academics 
Subject: Re: Facially neutral accommodations motivated by some objectors' 
religious beliefs

The ban on abortion doesn't violate the Establishment Clause because there are 
sufficient non-religious reasons to justify the ban. If the only reasons 
sufficient to justify the ban were religious, that would contravene the secular 
purpose requirement.

To answer your question below, I'm not arguing that religious accommodations 
that are otherwise consistent with the Equal Protection Clause are 
unconstitutional simply because they are motivated to accommodate religious 
believers. That would be to rule out all religious accommodations (which is not 
my view). Rather, my claim is that when accommodations require (or would 
require) the state to contravene otherwise applicable constitutional 
principles, the Establishment Clause may impose limits based on concerns about 
third party harms.

Maybe you think the Establishment Clause claim here is superfluous, but that 
doesn't seem like a full description of the harms. If the state can't authorize 
some action because it is otherwise constitutionally impermissible, and if it 
does so anyway for purposes of religious accommodation, it hasn't only violated 
the Equal Protection Clause, for example, but it has done so in a way that 
promotes religion over other constitutionally recognized interests. And that 
has Establishment Clause implications under existing doctrine.
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Re: Facially neutral accommodations motivated by some objectors' religious beliefs

[Schwartzman, Micah Jacob (mjs4d)]

A quick clarification: I suppose there could be religious accommodations that 
aren't motivated by an interest in accommodating religious believers, such that 
some accommodations might survive a prohibition on such motivations. But to be 
clear, I don't think the motivation to accommodate necessarily generates an 
Establishment Clause problem. Of course, there might be equality considerations 
that require expanding (or limiting) accommodations in some circumstances, but 
that's a separate issue.


On Jun 6, 2016, at 9:24 PM, "Schwartzman, Micah Jacob (mjs4d)" 
>
 wrote:

The ban on abortion doesn't violate the Establishment Clause because there are 
sufficient non-religious reasons to justify the ban. If the only reasons 
sufficient to justify the ban were religious, that would contravene the secular 
purpose requirement.

To answer your question below, I'm not arguing that religious accommodations 
that are otherwise consistent with the Equal Protection Clause are 
unconstitutional simply because they are motivated to accommodate religious 
believers. That would be to rule out all religious accommodations (which is not 
my view). Rather, my claim is that when accommodations require (or would 
require) the state to contravene otherwise applicable constitutional 
principles, the Establishment Clause may impose limits based on concerns about 
third party harms.

Maybe you think the Establishment Clause claim here is superfluous, but that 
doesn't seem like a full description of the harms. If the state can't authorize 
some action because it is otherwise constitutionally impermissible, and if it 
does so anyway for purposes of religious accommodation, it hasn't only violated 
the Equal Protection Clause, for example, but it has done so in a way that 
promotes religion over other constitutionally recognized interests. And that 
has Establishment Clause implications under existing doctrine.


On Jun 6, 2016, at 8:44 PM, "Volokh, Eugene" 
>
 wrote:

   I agree that a state single-race swimming pool program would 
violate the Equal Protection Clause, whether it’s motivated by religious or 
secular objections to race mixing.  But I don’t see why it would violate the 
Establishment Clause – just as a ban on abortion, for instance, has been held 
to violate the Due Process Clause, but it doesn’t violate the Establishment 
Clause.

   But if a state single-sex swimming pool program wouldn’t violate 
the Equal Protection Clause, if motivated by some users’ secular preferences 
for single-sex swimming (such as the ones in Livingwell), then I don’t think it 
would violate the Establishment Clause if motivated by some users’ religious 
preferences (for the reasons offered in my abortion funding analogy).

   Micah, are you arguing that an otherwise 
non-Equal-Protection-Clause-violating separate-sex program becomes 
unconstitutional when it is motivated by a desire to accommodate religious 
users?  Or am I misunderstanding your position?

   Eugene

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On 
Behalf Of Schwartzman, Micah Jacob (mjs4d)
Sent: Monday, June 06, 2016 5:20 PM
To: Law & Religion issues for Law Academics 
>
Subject: Re: Facially neutral accommodations motivated by some objectors' 
religious beliefs

The point of modifying your example isn't to draw a race analogy. It's to show 
that your example is trading on the assumption of the underlying constitutional 
permissibility of the state's action. And then it's asking whether that 
assumption is doing any work in the Establishment Clause analysis. (You could 
reach the same point by asking how your first two examples would look if 
state-owned hospitals were required to allow abortions under the 14th 
Amendment.)

If the state required a religious accommodation for single-race swimming, that 
accommodation would violate both the Equal Protection Clause and the 
Establishment Clause. It would do the latter by imposing third party harms, 
here harms of constitutional significance (incorporating equal protection 
concerns), on nonbeneficiaries, in contravention of Caldor and Cutter.

Why is it that the harms at issue in Caldor and Cutter can't sound, at least in 
part, in other provisions of the Constitution?

On Jun 6, 2016, at 7:50 PM, "Volokh, Eugene" 
>
 wrote:


   1.  As I’ve mentioned before, I don’t think race classifications 
are a helpful analogy to sex classifications where privacy is concerned.  Most 
people accept single-sex shower rooms, changing rooms, and restrooms 
(bracketing for now the discussion about transgender people), though we 
wouldn’t accept single-race ones.  

Re: Facially neutral accommodations motivated by some objectors' religious beliefs

[Schwartzman, Micah Jacob (mjs4d)]

The ban on abortion doesn't violate the Establishment Clause because there are 
sufficient non-religious reasons to justify the ban. If the only reasons 
sufficient to justify the ban were religious, that would contravene the secular 
purpose requirement.

To answer your question below, I'm not arguing that religious accommodations 
that are otherwise consistent with the Equal Protection Clause are 
unconstitutional simply because they are motivated to accommodate religious 
believers. That would be to rule out all religious accommodations (which is not 
my view). Rather, my claim is that when accommodations require (or would 
require) the state to contravene otherwise applicable constitutional 
principles, the Establishment Clause may impose limits based on concerns about 
third party harms.

Maybe you think the Establishment Clause claim here is superfluous, but that 
doesn't seem like a full description of the harms. If the state can't authorize 
some action because it is otherwise constitutionally impermissible, and if it 
does so anyway for purposes of religious accommodation, it hasn't only violated 
the Equal Protection Clause, for example, but it has done so in a way that 
promotes religion over other constitutionally recognized interests. And that 
has Establishment Clause implications under existing doctrine.


On Jun 6, 2016, at 8:44 PM, "Volokh, Eugene" 
>
 wrote:

   I agree that a state single-race swimming pool program would 
violate the Equal Protection Clause, whether it’s motivated by religious or 
secular objections to race mixing.  But I don’t see why it would violate the 
Establishment Clause – just as a ban on abortion, for instance, has been held 
to violate the Due Process Clause, but it doesn’t violate the Establishment 
Clause.

   But if a state single-sex swimming pool program wouldn’t violate 
the Equal Protection Clause, if motivated by some users’ secular preferences 
for single-sex swimming (such as the ones in Livingwell), then I don’t think it 
would violate the Establishment Clause if motivated by some users’ religious 
preferences (for the reasons offered in my abortion funding analogy).

   Micah, are you arguing that an otherwise 
non-Equal-Protection-Clause-violating separate-sex program becomes 
unconstitutional when it is motivated by a desire to accommodate religious 
users?  Or am I misunderstanding your position?

   Eugene

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On 
Behalf Of Schwartzman, Micah Jacob (mjs4d)
Sent: Monday, June 06, 2016 5:20 PM
To: Law & Religion issues for Law Academics 
>
Subject: Re: Facially neutral accommodations motivated by some objectors' 
religious beliefs

The point of modifying your example isn't to draw a race analogy. It's to show 
that your example is trading on the assumption of the underlying constitutional 
permissibility of the state's action. And then it's asking whether that 
assumption is doing any work in the Establishment Clause analysis. (You could 
reach the same point by asking how your first two examples would look if 
state-owned hospitals were required to allow abortions under the 14th 
Amendment.)

If the state required a religious accommodation for single-race swimming, that 
accommodation would violate both the Equal Protection Clause and the 
Establishment Clause. It would do the latter by imposing third party harms, 
here harms of constitutional significance (incorporating equal protection 
concerns), on nonbeneficiaries, in contravention of Caldor and Cutter.

Why is it that the harms at issue in Caldor and Cutter can't sound, at least in 
part, in other provisions of the Constitution?

On Jun 6, 2016, at 7:50 PM, "Volokh, Eugene" 
>
 wrote:


   1.  As I’ve mentioned before, I don’t think race classifications 
are a helpful analogy to sex classifications where privacy is concerned.  Most 
people accept single-sex shower rooms, changing rooms, and restrooms 
(bracketing for now the discussion about transgender people), though we 
wouldn’t accept single-race ones.  Likewise, I’m pretty sure that, when it 
comes to private entities and public accommodations laws (rather than 
government entities and the Equal Protection Clause) theLivingwell court would 
not have accepted an argument for single-race health clubs justified by a 
“privacy” rationale.  The question is whether sex-based privacy/modesty 
rationales, which we accept for some contexts where they represent majority 
views, should also be applicable to nearby areas (such as swimming pools) where 
only a minority sees a strong privacy/modesty concern.  No such question 
applies to race or religion classifications.

RE: Facially neutral accommodations motivated by some objectors' religious beliefs

[Volokh, Eugene]

   I agree that a state single-race swimming pool program would 
violate the Equal Protection Clause, whether it's motivated by religious or 
secular objections to race mixing.  But I don't see why it would violate the 
Establishment Clause - just as a ban on abortion, for instance, has been held 
to violate the Due Process Clause, but it doesn't violate the Establishment 
Clause.

   But if a state single-sex swimming pool program wouldn't violate 
the Equal Protection Clause, if motivated by some users' secular preferences 
for single-sex swimming (such as the ones in Livingwell), then I don't think it 
would violate the Establishment Clause if motivated by some users' religious 
preferences (for the reasons offered in my abortion funding analogy).

   Micah, are you arguing that an otherwise 
non-Equal-Protection-Clause-violating separate-sex program becomes 
unconstitutional when it is motivated by a desire to accommodate religious 
users?  Or am I misunderstanding your position?

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Schwartzman, Micah 
Jacob (mjs4d)
Sent: Monday, June 06, 2016 5:20 PM
To: Law & Religion issues for Law Academics 
Subject: Re: Facially neutral accommodations motivated by some objectors' 
religious beliefs

The point of modifying your example isn't to draw a race analogy. It's to show 
that your example is trading on the assumption of the underlying constitutional 
permissibility of the state's action. And then it's asking whether that 
assumption is doing any work in the Establishment Clause analysis. (You could 
reach the same point by asking how your first two examples would look if 
state-owned hospitals were required to allow abortions under the 14th 
Amendment.)

If the state required a religious accommodation for single-race swimming, that 
accommodation would violate both the Equal Protection Clause and the 
Establishment Clause. It would do the latter by imposing third party harms, 
here harms of constitutional significance (incorporating equal protection 
concerns), on nonbeneficiaries, in contravention of Caldor and Cutter.

Why is it that the harms at issue in Caldor and Cutter can't sound, at least in 
part, in other provisions of the Constitution?

On Jun 6, 2016, at 7:50 PM, "Volokh, Eugene" 
>
 wrote:


   1.  As I've mentioned before, I don't think race classifications 
are a helpful analogy to sex classifications where privacy is concerned.  Most 
people accept single-sex shower rooms, changing rooms, and restrooms 
(bracketing for now the discussion about transgender people), though we 
wouldn't accept single-race ones.  Likewise, I'm pretty sure that, when it 
comes to private entities and public accommodations laws (rather than 
government entities and the Equal Protection Clause) theLivingwell court would 
not have accepted an argument for single-race health clubs justified by a 
"privacy" rationale.  The question is whether sex-based privacy/modesty 
rationales, which we accept for some contexts where they represent majority 
views, should also be applicable to nearby areas (such as swimming pools) where 
only a minority sees a strong privacy/modesty concern.  No such question 
applies to race or religion classifications.

   2.  But that's the Equal Protection Clause analysis - as an 
Establishment Clause matter, I likewise don't see how single-race swimming 
hours would pose an Establishment Clause problem.  They violate the Equal 
Protection Clause, but not the Establishment Clause.  Likewise, single-religion 
swimming hours would violate the religious discrimination prohibition, 
seeLarson v. Valente, and not some other Religion Clauses principle (such as 
one that people are trying to bring in here via Estate of Thornton v. Caldor).  
If the objection is about discrimination, whether based on sex, race, or 
religion, that is a matter for the Equal Protection Clause (or the similar 
doctrine of Larson, when it comes to religious discrimination), not for 
Thornton.

   Eugene

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On 
Behalf Of Schwartzman, Micah Jacob (mjs4d)
Sent: Monday, June 06, 2016 4:33 PM
To: Law & Religion issues for Law Academics 
>
Subject: Re: Facially neutral accommodations motivated by some objectors' 
religious beliefs

What if we modify your last example in this way:

   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 [co-religionist or 

Re: Facially neutral accommodations motivated by some objectors' religious beliefs

[Michael Worley]

Burdens on third parties aren't a prima facia defense to Establishment
Clause claims. See* Hosanna-Tabor.*

On Mon, Jun 6, 2016 at 6:20 PM, Schwartzman, Micah Jacob (mjs4d) <
mj...@virginia.edu> wrote:

> The point of modifying your example isn't to draw a race analogy. It's to
> show that your example is trading on the assumption of the underlying
> constitutional permissibility of the state's action. And then it's asking
> whether that assumption is doing any work in the Establishment Clause
> analysis. (You could reach the same point by asking how your first two
> examples would look if state-owned hospitals were required to allow
> abortions under the 14th Amendment.)
>
> If the state required a religious accommodation for single-race swimming,
> that accommodation would violate both the Equal Protection Clause and the
> Establishment Clause. It would do the latter by imposing third party harms,
> here harms of constitutional significance (incorporating equal protection
> concerns), on nonbeneficiaries, in contravention of *Cald*or and *Cutter*
> .
>
> Why is it that the harms at issue in *Caldor* and *Cutter* can't sound,
> at least in part, in other provisions of the Constitution?
>
> On Jun 6, 2016, at 7:50 PM, "Volokh, Eugene" 
>  wrote:
>
>1.  As I’ve mentioned before, I don’t think race
> classifications are a helpful analogy to sex classifications where privacy
> is concerned.  Most people accept single-sex shower rooms, changing rooms,
> and restrooms (bracketing for now the discussion about transgender people),
> though we wouldn’t accept single-race ones.  Likewise, I’m pretty sure
> that, when it comes to private entities and public accommodations laws
> (rather than government entities and the Equal Protection Clause) the
> *Livingwell *court would not have accepted an argument for single-race
> health clubs justified by a “privacy” rationale.  The question is whether
> sex-based privacy/modesty rationales, which we accept for some contexts
> where they represent majority views, should also be applicable to nearby
> areas (such as swimming pools) where only a minority sees a strong
> privacy/modesty concern.  No such question applies to race or religion
> classifications.
>
>2.  But that’s the Equal Protection Clause analysis – as an
> Establishment Clause matter, I likewise don’t see how single-race swimming
> hours would pose an Establishment Clause problem.  They violate the Equal
> Protection Clause, but not the Establishment Clause.  Likewise,
> single-religion swimming hours would violate the religious discrimination
> prohibition, see*Larson v. Valente*, and not some other Religion Clauses
> principle (such as one that people are trying to bring in here via *Estate
> of Thornton v. Caldor*).  If the objection is about discrimination,
> whether based on sex, race, or religion, that is a matter for the Equal
> Protection Clause (or the similar doctrine of *Larson*, when it comes to
> religious discrimination), not for *Thornton*.
>
>Eugene
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] *On Behalf Of *Schwartzman, Micah Jacob (mjs4d)
> *Sent:* Monday, June 06, 2016 4:33 PM
> *To:* Law & Religion issues for Law Academics 
> *Subject:* Re: Facially neutral accommodations motivated by some
> objectors' religious beliefs
>
> What if we modify your last example in this way:
>
>
>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 [co-religionist or single-race] swimming
> hours?  (Again, I set aside the question whether this violates the Equal
> Protection Clause, quite apart from the religious questions.)
>
>
> Still no Establishment Clause problem?
>
>
>
>
> On Jun 6, 2016, at 6:48 PM, Volokh, Eugene  wrote:
>
>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, 

Re: Facially neutral accommodations motivated by some objectors' religious beliefs

[Schwartzman, Micah Jacob (mjs4d)]

The point of modifying your example isn't to draw a race analogy. It's to show 
that your example is trading on the assumption of the underlying constitutional 
permissibility of the state's action. And then it's asking whether that 
assumption is doing any work in the Establishment Clause analysis. (You could 
reach the same point by asking how your first two examples would look if 
state-owned hospitals were required to allow abortions under the 14th 
Amendment.)

If the state required a religious accommodation for single-race swimming, that 
accommodation would violate both the Equal Protection Clause and the 
Establishment Clause. It would do the latter by imposing third party harms, 
here harms of constitutional significance (incorporating equal protection 
concerns), on nonbeneficiaries, in contravention of Caldor and Cutter.

Why is it that the harms at issue in Caldor and Cutter can't sound, at least in 
part, in other provisions of the Constitution?

On Jun 6, 2016, at 7:50 PM, "Volokh, Eugene" 
>
 wrote:

   1.  As I’ve mentioned before, I don’t think race classifications 
are a helpful analogy to sex classifications where privacy is concerned.  Most 
people accept single-sex shower rooms, changing rooms, and restrooms 
(bracketing for now the discussion about transgender people), though we 
wouldn’t accept single-race ones.  Likewise, I’m pretty sure that, when it 
comes to private entities and public accommodations laws (rather than 
government entities and the Equal Protection Clause) theLivingwell court would 
not have accepted an argument for single-race health clubs justified by a 
“privacy” rationale.  The question is whether sex-based privacy/modesty 
rationales, which we accept for some contexts where they represent majority 
views, should also be applicable to nearby areas (such as swimming pools) where 
only a minority sees a strong privacy/modesty concern.  No such question 
applies to race or religion classifications.

   2.  But that’s the Equal Protection Clause analysis – as an 
Establishment Clause matter, I likewise don’t see how single-race swimming 
hours would pose an Establishment Clause problem.  They violate the Equal 
Protection Clause, but not the Establishment Clause.  Likewise, single-religion 
swimming hours would violate the religious discrimination prohibition, 
seeLarson v. Valente, and not some other Religion Clauses principle (such as 
one that people are trying to bring in here via Estate of Thornton v. Caldor).  
If the objection is about discrimination, whether based on sex, race, or 
religion, that is a matter for the Equal Protection Clause (or the similar 
doctrine of Larson, when it comes to religious discrimination), not for 
Thornton.

   Eugene

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On 
Behalf Of Schwartzman, Micah Jacob (mjs4d)
Sent: Monday, June 06, 2016 4:33 PM
To: Law & Religion issues for Law Academics 
>
Subject: Re: Facially neutral accommodations motivated by some objectors' 
religious beliefs

What if we modify your last example in this way:

   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 [co-religionist or single-race] swimming hours?  
(Again, I set aside the question whether this violates the Equal Protection 
Clause, quite apart from the religious questions.)

Still no Establishment Clause problem?



On Jun 6, 2016, at 6:48 PM, Volokh, Eugene 
> wrote:
   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, seeHarris 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 

RE: Facially neutral accommodations motivated by some objectors' religious beliefs

[Volokh, Eugene]

   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: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan E Brownstein
Sent: Monday, June 06, 2016 4:46 PM
To: Law & Religion issues for Law Academics 
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: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] 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: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan E Brownstein
Sent: Monday, June 06, 2016 2:21 PM
To: Law & Religion issues for Law Academics 
>
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 

RE: Facially neutral accommodations motivated by some objectors' religious beliefs

[Volokh, Eugene]

   1.  As I've mentioned before, I don't think race classifications 
are a helpful analogy to sex classifications where privacy is concerned.  Most 
people accept single-sex shower rooms, changing rooms, and restrooms 
(bracketing for now the discussion about transgender people), though we 
wouldn't accept single-race ones.  Likewise, I'm pretty sure that, when it 
comes to private entities and public accommodations laws (rather than 
government entities and the Equal Protection Clause) the Livingwell court would 
not have accepted an argument for single-race health clubs justified by a 
"privacy" rationale.  The question is whether sex-based privacy/modesty 
rationales, which we accept for some contexts where they represent majority 
views, should also be applicable to nearby areas (such as swimming pools) where 
only a minority sees a strong privacy/modesty concern.  No such question 
applies to race or religion classifications.

   2.  But that's the Equal Protection Clause analysis - as an 
Establishment Clause matter, I likewise don't see how single-race swimming 
hours would pose an Establishment Clause problem.  They violate the Equal 
Protection Clause, but not the Establishment Clause.  Likewise, single-religion 
swimming hours would violate the religious discrimination prohibition, see 
Larson v. Valente, and not some other Religion Clauses principle (such as one 
that people are trying to bring in here via Estate of Thornton v. Caldor).  If 
the objection is about discrimination, whether based on sex, race, or religion, 
that is a matter for the Equal Protection Clause (or the similar doctrine of 
Larson, when it comes to religious discrimination), not for Thornton.

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Schwartzman, Micah 
Jacob (mjs4d)
Sent: Monday, June 06, 2016 4:33 PM
To: Law & Religion issues for Law Academics 
Subject: Re: Facially neutral accommodations motivated by some objectors' 
religious beliefs

What if we modify your last example in this way:

   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 [co-religionist or single-race] swimming hours?  
(Again, I set aside the question whether this violates the Equal Protection 
Clause, quite apart from the religious questions.)

Still no Establishment Clause problem?



On Jun 6, 2016, at 6:48 PM, Volokh, Eugene 
> wrote:
   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: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan E Brownstein
Sent: Monday, June 06, 2016 2:21 PM
To: Law & Religion issues for Law Academics 
>
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 

RE: Facially neutral accommodations motivated by some objectors' religious beliefs

[Alan E Brownstein]

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: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] 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: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan E Brownstein
Sent: Monday, June 06, 2016 2:21 PM
To: Law & Religion issues for Law Academics 
>
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" 
> 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 

Re: Facially neutral accommodations motivated by some objectors' religious beliefs

[Schwartzman, Micah Jacob (mjs4d)]

What if we modify your last example in this way:

   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 [co-religionist or single-race] swimming hours?  
(Again, I set aside the question whether this violates the Equal Protection 
Clause, quite apart from the religious questions.)

Still no Establishment Clause problem?



On Jun 6, 2016, at 6:48 PM, Volokh, Eugene 
> wrote:

   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: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan E Brownstein
Sent: Monday, June 06, 2016 2:21 PM
To: Law & Religion issues for Law Academics 
>
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" 
> 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 

Facially neutral accommodations motivated by some objectors' religious beliefs

[Volokh, Eugene]

   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: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan E Brownstein
Sent: Monday, June 06, 2016 2:21 PM
To: Law & Religion issues for Law Academics 
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" 
> 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 
> 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 

Re: Jewish law, women's bodies, and accommodations

[Alan E Brownstein]

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" 
> 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 
> 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 

RE: Jewish law, women's bodies, and accommodations

[Conkle, Daniel O.]

It certainly doesn’t answer Chip’s particular questions about the judicial role 
in the situation here, but the Supreme Court’s decision in Amos, or at least 
Justice Brennan’s opinion in that case, can be read to support a balancing 
inquiry in addressing the issue of third-party harms.  Decided two years after 
Caldor, the Court upheld Title VII’s religious-organization exception to the 
statute’s ban on religious discrimination in employment, finding the 
accommodation permissible even though it obviously imposes a burden on the 
livelihood - and the religious freedom - of employees and employment applicants 
(even for nonreligious jobs)  who do not conform to the employer’s religion.  
In his opinion concurring in the judgment, Brennan endorsed a balancing 
inquiry, concluding that the free exercise interest of religious 
organizations—“an interest in autonomy in ordering their internal affairs” [cf. 
Hosanna-Tabor]—was sufficiently important to override the burden on third 
parties, permitting the Title VII exemption because it “appropriately balances 
these competing concerns.”

Dan

Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University Maurer School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail con...@indiana.edu


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Monday, June 06, 2016 12:50 PM
To: Law & Religion issues for Law Academics
Subject: Re: Jewish law, women's bodies, and accommodations

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 
> 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 

Re: Jewish law, women's bodies, and accommodations

[Ira Lupu]

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

RE: Jewish law, women's bodies, and accommodations

[Volokh, Eugene]

   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 
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
c) 518.605.0296
and
Senior Fellow
Democracy, Citizenship and Constitutionalism Program

University of Pennsylvania





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From: Meir Katz >
To: 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 

Re: Jewish law, women's bodies, and accommodations

[Meir Katz]

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

Subject: Jewish law, women's bodies, and accommodations
Message-ID:



Content-Type: text/plain; charset="utf-8"

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