RE: The Bedford pool exemption--a collection of reactions

[Kwall, Roberta]

Ira invited Hillel to say a bit more about the relevant assumptions underlying 
Jewish law's views of women's bodies.  As a Jewish female with "Conservadox" 
leanings, I would like to add my two cents on this particular issue.

As a general matter, the entire area of modesty (which applies to both men and 
women according to Jewish law but in different ways) is part of a larger 
question of appropriate sexual conduct.  Earlier this year, there was an 
incident on an El Al flight in which a flight attendant requested that an 
elderly woman change her seat in response to a request by an ultra-Orthodox man 
who was seated next to her.  I wrote an OpEd on this issue that was published 
in The Forward that provides both my reaction to this particular incident and 
some general education on Jewish law in this area  (caveat: the Forward picked 
the title of my piece--I would not have used that one)

http://forward.com/opinion/334978/men-who-make-women-switch-seats-dont-understand-torah/

To me, the issue of segregated swimming has a different feel from the airline 
incident. Although I appreciate the perspective of those who find some of the 
modesty laws to contain negative assumptions (see, e.g., the modern Orthodox 
scholar Tova Hartman's chapter on modesty in her book Feminism Encounters 
Traditional Judaism), I have great sympathy for the value of a reasonable 
application of the laws of modesty.  As you can see, I do not think the seat 
switching is such an application; the pool issue may be different (I am 
speaking here about Jewish law and not US constitutional law).

Finally,  I believe cultural assumptions are definitely embedded in Jewish law 
(both concerning gender and otherwise).  With respect to sexual conduct, the 
rabbis in the early Talmudic period were clearly familiar with the sexual 
excesses in their environments and tried to channel sexual activity into what 
they saw as appropriate venues (as I discuss in my Oped).  This summer I toured 
the ruins of Pompeii and got quite an education as to the nature of some of 
these excesses~!

Whether these socio-legal factors should be taken into account in the 
application of Jewish law is hotly debated by Jewish lawmakers from different 
movements (those who are Orthodox tend not to consider these factors in their 
decisional processes whereas lawmakers in the Conservative movement do).  In 
fact, in this regard, the Conservative movement was heavily influenced by 
Benjamin Cardozo's work, The Nature of the Judicial Process.

One final comment concerning the swimming issue.  In many communities, 
segregated swimming hours are offered by the local Jewish community centers.  
Without knowing more about this particular community, I was curious whether 
this is an option open to women in this area.

Of course, others on this list may see Jewish law differently, and wish to 
provide the list with their own perspectives here.

Bobbi





Roberta Rosenthal Kwall
Raymond P. Niro Professor
Founding Director, DePaul University College of Law
Center for Intellectual Property Law & Information Technology

Author of The Myth of the Cultural Jew: Culture and Law in Jewish Tradition
http://amzn.to/15f7bLH

 You can view my papers on the Social Science Research Network (SSRN) at the 
following
URL:  http://ssrn.com/author=345249



From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Ira Lupu [icl...@law.gwu.edu]
Sent: Tuesday, June 07, 2016 10:17 AM
To: Law & Religion issues for Law Academics
Subject: Re: The Bedford pool exemption--a collection of reactions

A few more thoughts:

1.  Are there any women participating on this listserv?  It seems remarkable 
that we have talking about this gender based policy for days and (unless I 
missed something, and please forgive me if that is the case) all the 
participants are men.

2.  The Kiryas Joel problem is not about third party harms; it's about 
sectarian discrimination.  Would any other religious minority in NYC (Muslims, 
for example) be able to get women only pool hours in their neighborhood?  I 
understand there may be problems of proof if they have never tried, and the 
case may turn on the role of the City in tolerating a sex-based policy, in this 
neighborhood, that the City would not tolerate elsewhere.  But there are 
questions here, to which Alan Brownstein alluded when he asked if this were 
Lukumi reversed -- an intentionally sect-based benefit, not available to others.

3.  The endorsement test, FWIW, applies only to government acknowledgments of 
religion (e.g., publicly supported Christmas Creches and Chanukah Menorahs; 
Crosses at war memorials; Ten Commandments displays).  The endorsement does not 
apply to accommodations -- relief of government-imposed burdens on religious 
practice.  The U.S. government does not endorse the content of religious 
symbols that members of the Armed Forces put on jewelry; or on their 
gravestones 

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

[Volokh, Eugene]

   1.  Like Meir, I interpreted Hillel’s post as suggesting that 
the assumptions he attributes to Jewish modesty laws are “negative.”  Hillel 
wrote, “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.”

I assume that there would be little problem with the law reflecting or 
reinforcing positive messages about women’s and girls’ bodies; indeed, the 
government tries to send such messages often.  Indeed, consider Hillel’s 
followup post about my Wiccan hypothetical.  I hypothesized a town where “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.”  Hillel suggested 
that it might be different from the Orthodox Jewish example, because “the 
history and social context may be different enough to matter.”  But this 
difference, in my hypo, is simply that the assumptions about women’s and girl’s 
bodies embedded in Wiccan views would be positive, rather than negative.

Maybe I misunderstood the message Hillel was trying to send, but I wanted to 
explain why I think Meir shouldn’t be faulted for understanding an implicit 
“[negative]” in Hillel’s post.

   2.  But more broadly, as to judges’ considering “history and 
social context” in determining and evaluating the “assumptions and norms” that 
an accommodation would “reflect” or “reinforce,” wouldn’t that itself pose far 
more of an endorsement problem that it would solve?  (I agree, by the way, with 
the recent post that said that the endorsement test shouldn’t apply to 
government accommodations, but let’s set that aside for a moment.)  Courts 
would have to decide, as a matter of constitutional law, just what are the 
assumptions and norms on which a religious law is based – a matter that members 
of the religion might bitterly disagree on.  And a judgment that, for instance, 
the Wiccan assumptions are something that government actions may reflect or 
reinforce, but that the Orthodox Jewish assumptions are something that 
government actions may not reflect or reinforce, seems very likely to be 
understood as endorsement of Wiccan theology (as being founded on good 
assumptions) and disapproval of Orthodox Jewish theology (as being founded on 
bad ones).  Can that be right?

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin
Sent: Tuesday, June 07, 2016 4:17 AM
To: Law & Religion issues for Law Academics 
Subject: Re: Jewish law, women's bodies, and accommodations

I confess I'm stymied by the objection Meir has articulated to my
​offending
 paragraph. Jewish laws regarding modesty
​surely must
 reflect certain assumptions about women's bodies
​. Why else would there be a religious law concerning mixed swimming (or women 
singing in front of men, or showing their elbows or knees, or in the case of 
married women, their hair, and so forth?). You'll note that Meir added a key 
word in brackets--that the assumptions I attribute to the law are 
"negative"--that was not present in my original. Is it good form to criticize 
someone for things
​s/​
he did not say? I was taught not.

I made no claim as to what those assumptions are, and this may well be open to 
debate. But that there are assumptions underlying this religious principle is, 
indeed, beyond dispute.

Incidentally, I was taught in my roughly 20 years in various yeshivot that 
these assumptions relate to women's bodies being sexual,
 and therefore
​that they ​
​should
 be covered when men are present
​ (except in the case of a spouse, and then only sometimes). Even in saying 
that, I am still not making a value-laden claim about the assumption--true, 
false, positive, negative, or otherwise. In any event, I have no objection to a 
co-religionist (or anyone else) challenging this account of the underlying 
assumption or framing it otherwise​
. I continue to think, as a normative matter
​ at least (
I guess what Eugene means by "as a basis for ​political opposition"), that 
assumptions
​
--whatever they are
​, and whether their source is religious or not​
-- about women's bodies
​ in particular that relate to sexual modesty
should not be reflected
​ in and reinforced​
​by
 the law.

To be sure, this does not respond to the question both Eugene and Meir raise: 
should judges take into account
​an
 underlying
​, embedded​
​assumption/message
?

I'm not sure what the 

RE: The Bedford pool exemption--a collection of reactions

[Volokh, Eugene]

   I agree entirely with Marty’s astute analysis in items 1 and 2, 
and with Marty’s conclusion that women-only swimming hours without 
corresponding men-only hours are unconstitutional; more shortly on the 
“gerrymander” question.

I should say, though, that I’m not sure whether the Equal Protection Clause 
would allow single-sex swimming hours both for men and women; I think that’s a 
hard question, which turns on whether the tolerance for same-sex shower rooms, 
restrooms, dorm room assignments, etc. should also extend to other situations 
that are relatively similar, but different enough that the national majority 
doesn’t see a sufficient privacy/modesty interest there.  Livingwell suggests 
that sex is a permissible bona fide qualification in such cases, where state 
laws that apply to private businesses are involved.  I’m not sure whether the 
Equal Protection Clause should likewise allow single-sex exercise programs, 
swimming pools, etc. when it comes to government organizations.

 Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Tuesday, June 07, 2016 5:34 AM
To: Law & Religion issues for Law Academics 
Subject: The Bedford pool exemption--a collection of reactions

Well, I'm sure glad I asked about this case -- this has been a wonderfully 
provocative and informative thread, thanks!

A few reactions and further questions:

1.  I'll start with the Establishment Clause.  First, let's assume for the sake 
of argument (and to clarify our analysis) a counterfactual, namely, that this 
were a classic religious exemption:  On Mondays, Wednesdays and Fridays from 
9:15 to 11 a.m., and on Sunday afternoons from 2:45 to 4:45, the Bedford pool 
is open only to women who have religious objections to co-ed swimming.  Would 
that violate the Establishment Clause?

Most of the discussion here has focused on harm to those who would not be able 
to use the pool during those eight hours of the week.  But that's putting the 
cart before the horse.  Under governing doctrine, a religion-only accommodation 
is ok only if it alleviates a significant state-imposed burden on religious 
exercise.  Are the orthodox women significantly burdened by the city's general 
rule that its pools are open to the public at large?

Of course, that's a classic baselines dilemma.  On the one hand, one might say: 
 Yes, because their access to a very valuable and universally available public 
benefit is conditioned on their willingness to violate a religious injunction.  
Cf. Sherbert.  On the other hand, a city does not have to offer free swimming 
pools in the first instance, and such a gratuitous "benefit" is a whole lot 
less important than the unemployment benefits at issue in Sherbert.  Many 
people can and do fail to take advantage of public pools, and their lives are 
not dramatically diminished as a result.  Unlike in Sherbert, the offer of this 
benefit is very unlikely to induce anyone to violate religious injunctions.  
Or, to put it slightly differently, the "benefit" itself is access to a public 
pool (akin to a public park or other place of public accommodation); orthodox 
women simply wish that the city were also offering a different benefit, i.e., 
access to women-only pools; and the failure of the state to offer that 
alternative benefit cannot be viewed as a significant state-imposed burden on 
religious exercise.

If the "correct" answer is "yes, opening the pool to the public at large does 
significantly burden orthodox women's religion," then we would need to 
address--to weigh--the harm to the other NYC residents who are excluded during 
the eight hours.  But here's the interesting point (to me, anyway):  It's 
difficult to disaggregate the two assessments of "harm" on either side of the 
balance.  If you think that there is no significant harm to the orthodox women 
in not being able to use the pool at all, then, almost by definition, there 
wouldn't be any significant harm to the excluded residents in being closed off 
from swimming for eight hours a week.  The exemption might still be 
unconstitutional in such a case, because of the absence of state-imposed harm 
to religion; but that wouldn't be because of harm to third parties.  If, by 
contrast, you think that the rest of the Bedford residents are materially 
harmed by being excluded for eight hours, then wouldn't you have to concede 
that the state has harmed the orthodox women by imposing a condition that makes 
them unable to enjoy the pool at all?  In the latter case, with harm on both 
sides, the harm to the women if the exemption is denied would appear to be 
greater.  And therefore if a "balance" of harms were relevant to the EC 
equation (concededly a contested, and complicated, assumption, and one I am not 
necessarily endorsing here), the harm to the women presumably would outweigh 
the harm to other residents.

2.  OK, 

Accommodations and "sectarian discrimination"

[Volokh, Eugene]

   I appreciate Chip’s concerns, but I wonder how far they can go.  
A cafeteria at a government-run institution decides to offer kosher options, 
because there happen to be quite a few observant Jewish patrons or employees 
who eat there.  The decision is a local one, made by the local manager, without 
any overarching government policy.  Should that be rejected because we can’t 
have complete confidence that the government would likewise offer halal meals 
if at some point some similar institution ends up having quite a few observant 
Muslim patrons or employees?

   Or say that a school in a heavily Jewish area closes for Rosh 
Hashanah and Yom Kippur.  Should that be found unconstitutional because we 
can’t have complete confidence that a different school in the same district (or 
for that matter, a whole different school district) would do the same for 
Muslim holidays in heavily Muslim areas?

   Or say that a government employer accommodates an employee’s 
religious concerns, even beyond what is required by Title VII.  Say, for 
instance, that there is a more de minimis burden for the employer in exempting 
an employee from, say, handling alcohol, or in allowing the employee three 
weeks off to go on a pilgrimage to Mecca.  Should that be found 
unconstitutional because we can’t have complete confidence that the government 
employer would similarly accommodate other religious objectors who have 
similarly burdensome accommodation requests?

   I would think the answer to all these questions is “no,” 
especially when the accommodation don’t require the government to decide who 
belongs to a particular religion and who doesn’t.  (The Mecca pilgrimage / 
alcohol handling example may actually be harder in this respect, but the first 
two, and the single-sex hours example, don’t pose this problem.)  Requiring 
executive agencies that deal with customer and employee needs to accommodate 
through general rule, or not at all, would lead to many fewer accommodations.   
And I don’t think the single-sex swimming hours situation is any different.

And the concern about discrimination, I take it, would usually be dealt with by 
offering later applicants an opportunity to demand equal treatment with the 
applicants whose objections were granted (enforceable with a lawsuit and an 
injunction if necessary), assuming that the accommodation is indeed comparably 
inexpensive.  In Kiryas Joel, which involved a special statute, such a claim 
might not have been easily available.  But when it comes to executive action, 
the notion that courts can compel the government to treat employees and patrons 
equally, and to give benefits to similarly situated people without regard to 
religion, seems pretty familiar.

   Eugene

Chip Lupu writes:

2.  The Kiryas Joel problem is not about third party harms; it's about 
sectarian discrimination.  Would any other religious minority in NYC (Muslims, 
for example) be able to get women only pool hours in their neighborhood?  I 
understand there may be problems of proof if they have never tried, and the 
case may turn on the role of the City in tolerating a sex-based policy, in this 
neighborhood, that the City would not tolerate elsewhere.  But there are 
questions here, to which Alan Brownstein alluded when he asked if this were 
Lukumi reversed -- an intentionally sect-based benefit, not available to others.

___
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RE: The Bedford pool exemption--a collection of reactions

[Conkle, Daniel O.]

As a conceptual matter, I would describe Chip’s point about justification in 
slightly different terms:  if the government is indeed accommodating in a 
permissible way, by removing a significant or substantial burden on religious 
exercise, it is acting to promote or protect *religious freedom*, not religion 
as such, and this should be treated as a secular justification.  In other 
words, the government in these circumstances is endorsing *religious freedom*, 
not religion.  The endorsement test is not inapplicable; instead, the test is 
satisfied.  If the accommodation goes too far, e.g., by ignoring third-party 
harms, that might suggest a constitutionally improper justification, one of 
promoting or endorsing religion as such, rather than the religious freedom of 
those who are being accommodated.

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: Tuesday, June 07, 2016 11:18 AM
To: Law & Religion issues for Law Academics
Subject: Re: The Bedford pool exemption--a collection of reactions

A few more thoughts:

1.  Are there any women participating on this listserv?  It seems remarkable 
that we have talking about this gender based policy for days and (unless I 
missed something, and please forgive me if that is the case) all the 
participants are men.

2.  The Kiryas Joel problem is not about third party harms; it's about 
sectarian discrimination.  Would any other religious minority in NYC (Muslims, 
for example) be able to get women only pool hours in their neighborhood?  I 
understand there may be problems of proof if they have never tried, and the 
case may turn on the role of the City in tolerating a sex-based policy, in this 
neighborhood, that the City would not tolerate elsewhere.  But there are 
questions here, to which Alan Brownstein alluded when he asked if this were 
Lukumi reversed -- an intentionally sect-based benefit, not available to others.

3.  The endorsement test, FWIW, applies only to government acknowledgments of 
religion (e.g., publicly supported Christmas Creches and Chanukah Menorahs; 
Crosses at war memorials; Ten Commandments displays).  The endorsement does not 
apply to accommodations -- relief of government-imposed burdens on religious 
practice.  The U.S. government does not endorse the content of religious 
symbols that members of the Armed Forces put on jewelry; or on their 
gravestones when they are buried in a military cemetery; or the meaning of 
religious headgear, like yarmulkes or turbans, that soldiers or even prison 
inmates, may be allowed to wear.

If Hillel wants to say more about the relevant Jewish law assumptions that "
relate to women's bodies being sexual,
 and therefore
​that they ​
​should
 be covered when men are present
​ (except in the case of a spouse, and then only sometimes)," we all might 
learn something about the Orthodox Jewish treatment of women.  I would welcome 
that lesson.  But what we learn can't possibly determine the outcome of a 
constitutional challenge to the accommodation.  Suppose, pre-Yoder, a state 
agreed voluntarily (and contrary to state compulsory education law) to permit 
Amish parents to home school beginning at age 14.  The state authorities know 
that the Amish will rear their boys to be farmers and their girls to be 
housewives.  Is the accommodation now suspect because the religious community, 
left to its own norms, will act in sexist ways? Similarly, the ministerial 
exception involves effective permission for an all-male (or all female) 
priesthood, and everyone knows that.  Endorsement has nothing to do with this 
set of problems.

On Tue, Jun 7, 2016 at 8:34 AM, Marty Lederman 
> wrote:
Well, I'm sure glad I asked about this case -- this has been a wonderfully 
provocative and informative thread, thanks!

A few reactions and further questions:

1.  I'll start with the Establishment Clause.  First, let's assume for the sake 
of argument (and to clarify our analysis) a counterfactual, namely, that this 
were a classic religious exemption:  On Mondays, Wednesdays and Fridays from 
9:15 to 11 a.m., and on Sunday afternoons from 2:45 to 4:45, the Bedford pool 
is open only to women who have religious objections to co-ed swimming.  Would 
that violate the Establishment Clause?

Most of the discussion here has focused on harm to those who would not be able 
to use the pool during those eight hours of the week.  But that's putting the 
cart before the horse.  Under governing doctrine, a religion-only accommodation 
is ok only if it alleviates a significant state-imposed burden on religious 

Re: The Bedford pool exemption--a collection of reactions

[Ira Lupu]

Some national attention now --
http://bigstory.ap.org/article/3259421f36124a34be17b68654a7bf4e/no-men-allowed-women-only-pool-hours-draw-complaints-nyc
.

Note the references to Seattle and a Minneapolis suburb, and the ambiguous
position of city wide authorities in NYC (relevant in light of Kiryas Joel,
where the state legislature was the relevant accommodating actor).

On Tue, Jun 7, 2016 at 8:34 AM, Marty Lederman 
wrote:

> Well, I'm sure glad I asked about this case -- this has been a wonderfully
> provocative and informative thread, thanks!
>
> A few reactions and further questions:
>
> 1.  I'll start with the Establishment Clause.  First, let's assume for the
> sake of argument (and to clarify our analysis) a counterfactual, namely,
> that this were a classic religious exemption:  On Mondays, Wednesdays and
> Fridays from 9:15 to 11 a.m., and on Sunday afternoons from 2:45 to 4:45,
> the Bedford pool is open only to women who have *religious *objections to
> co-ed swimming.  Would that violate the Establishment Clause?
>
> Most of the discussion here has focused on harm to those who would not be
> able to use the pool during those eight hours of the week.  But that's
> putting the cart before the horse.  Under governing doctrine, a
> religion-only accommodation is ok only if it alleviates a significant
> state-imposed burden on religious exercise.  Are the orthodox women
> significantly burdened by the city's general rule that its pools are open
> to the public at large?
>
> Of course, that's a classic baselines dilemma.  On the one hand, one might
> say:  Yes, because their access to a very valuable and universally
> available public benefit is conditioned on their willingness to violate a
> religious injunction.  Cf. *Sherbert*.  On the other hand, a city does
> not *have to *offer free swimming pools in the first instance, and such a
> gratuitous "benefit" is a whole lot less important than the unemployment
> benefits at issue in *Sherbert*.  Many people can and do fail to take
> advantage of public pools, and their lives are not dramatically diminished
> as a result.  Unlike in *Sherbert*, the offer of this benefit is very
> unlikely to induce anyone to violate religious injunctions.  Or, to put
> it slightly differently, the "benefit" itself is access to a *public *pool
> (akin to a public park or other place of public accommodation); orthodox
> women simply wish that the city were also offering a *different *benefit,
> i.e., access to *women-only *pools; and the failure of the state to offer
> that alternative benefit cannot be viewed as a significant state-imposed 
> *burden
> *on religious exercise.
>
> *If *the "correct" answer is "yes, opening the pool to the public at
> large does significantly burden orthodox women's religion," *then *we
> would need to address--to weigh--the harm to the other NYC residents who
> are excluded during the eight hours.  But here's the interesting point (to
> me, anyway):  It's difficult to disaggregate the two assessments of "harm"
> on either side of the balance.  If you think that there is no significant
> harm to the orthodox women in not being able to use the pool *at all*,
> then, almost by definition, there wouldn't be any significant harm to the
> excluded residents in being closed off from swimming for eight hours a
> week.  The exemption might still be unconstitutional in such a case,
> because of the absence of state-imposed harm to religion; but that wouldn't
> be because of harm to third parties.  If, by contrast, you think that the
> rest of the Bedford residents are materially harmed by being excluded for
> eight hours, then wouldn't you have to concede that the state has harmed
> the orthodox women by imposing a condition that makes them unable to enjoy
> the pool at all?  In the latter case, with harm on both sides, the harm to
> the women if the exemption is denied would appear to be greater.  And
> therefore *if *a "balance" of harms were relevant to the EC equation
> (concededly a contested, and complicated, assumption, and one I am not
> necessarily endorsing here), the harm to the women presumably would
> outweigh the harm to other residents.
>
> 2.  OK, but, as several of you have noted, Bedford isn't the classic
> accommodation case.  The exemption in question is not religion-specific --
> on its face it benefits all women, whether they have a religious objection
> or not.  Because of this, I agree there's a strong presumption that there's
> no Establishment Clause problem, regardless of third-party harms.  Indeed,
> expanding exemptions so that they are not religion-specific has long been
> viewed as a way to *avoid *EC problems, even though such expansions
> increase the harm to third parties.  Think of Justice Harlan's explanation
> of the tax exemption in *Walz*; or the Court's expansion of the
> conscientious exemption law in *Welsh *to avoid EC concerns.  The most
> common example of this in recent 

Re: The Bedford pool exemption--a collection of reactions

[Ira Lupu]

A few more thoughts:

1.  Are there any women participating on this listserv?  It seems
remarkable that we have talking about this gender based policy for days and
(unless I missed something, and please forgive me if that is the case) all
the participants are men.

2.  The Kiryas Joel problem is not about third party harms; it's about
sectarian discrimination.  Would any other religious minority in NYC
(Muslims, for example) be able to get women only pool hours in their
neighborhood?  I understand there may be problems of proof if they have
never tried, and the case may turn on the role of the City in tolerating a
sex-based policy, in this neighborhood, that the City would not tolerate
elsewhere.  But there are questions here, to which Alan Brownstein alluded
when he asked if this were Lukumi reversed -- an intentionally sect-based
benefit, not available to others.

3.  The endorsement test, FWIW, applies only to government acknowledgments
of religion (e.g., publicly supported Christmas Creches and Chanukah
Menorahs; Crosses at war memorials; Ten Commandments displays).  The
endorsement does not apply to accommodations -- relief of
government-imposed burdens on religious practice.  The U.S. government does
not endorse the content of religious symbols that members of the Armed
Forces put on jewelry; or on their gravestones when they are buried in a
military cemetery; or the meaning of religious headgear, like yarmulkes or
turbans, that soldiers or even prison inmates, may be allowed to wear.

If Hillel wants to say more about the relevant Jewish law assumptions that "
relate to women's bodies being sexual,
 and therefore
​that they ​
​should
 be covered when men are present
​ (except in the case of a spouse, and then only sometimes)," we all might
learn something about the Orthodox Jewish treatment of women.  I would
welcome that lesson.  But what we learn can't possibly determine the
outcome of a constitutional challenge to the accommodation.  Suppose,
pre-Yoder, a state agreed voluntarily (and contrary to state compulsory
education law) to permit Amish parents to home school beginning at age 14.
The state authorities know that the Amish will rear their boys to be
farmers and their girls to be housewives.  Is the accommodation now suspect
because the religious community, left to its own norms, will act in sexist
ways? Similarly, the ministerial exception involves effective permission
for an all-male (or all female) priesthood, and everyone knows that.
Endorsement has nothing to do with this set of problems.

On Tue, Jun 7, 2016 at 8:34 AM, Marty Lederman 
wrote:

> Well, I'm sure glad I asked about this case -- this has been a wonderfully
> provocative and informative thread, thanks!
>
> A few reactions and further questions:
>
> 1.  I'll start with the Establishment Clause.  First, let's assume for the
> sake of argument (and to clarify our analysis) a counterfactual, namely,
> that this were a classic religious exemption:  On Mondays, Wednesdays and
> Fridays from 9:15 to 11 a.m., and on Sunday afternoons from 2:45 to 4:45,
> the Bedford pool is open only to women who have *religious *objections to
> co-ed swimming.  Would that violate the Establishment Clause?
>
> Most of the discussion here has focused on harm to those who would not be
> able to use the pool during those eight hours of the week.  But that's
> putting the cart before the horse.  Under governing doctrine, a
> religion-only accommodation is ok only if it alleviates a significant
> state-imposed burden on religious exercise.  Are the orthodox women
> significantly burdened by the city's general rule that its pools are open
> to the public at large?
>
> Of course, that's a classic baselines dilemma.  On the one hand, one might
> say:  Yes, because their access to a very valuable and universally
> available public benefit is conditioned on their willingness to violate a
> religious injunction.  Cf. *Sherbert*.  On the other hand, a city does
> not *have to *offer free swimming pools in the first instance, and such a
> gratuitous "benefit" is a whole lot less important than the unemployment
> benefits at issue in *Sherbert*.  Many people can and do fail to take
> advantage of public pools, and their lives are not dramatically diminished
> as a result.  Unlike in *Sherbert*, the offer of this benefit is very
> unlikely to induce anyone to violate religious injunctions.  Or, to put
> it slightly differently, the "benefit" itself is access to a *public *pool
> (akin to a public park or other place of public accommodation); orthodox
> women simply wish that the city were also offering a *different *benefit,
> i.e., access to *women-only *pools; and the failure of the state to offer
> that alternative benefit cannot be viewed as a significant state-imposed 
> *burden
> *on religious exercise.
>
> *If *the "correct" answer is "yes, opening the pool to the public at
> large does significantly burden orthodox women's 

The Bedford pool exemption--a collection of reactions

[Marty Lederman]

Well, I'm sure glad I asked about this case -- this has been a wonderfully
provocative and informative thread, thanks!

A few reactions and further questions:

1.  I'll start with the Establishment Clause.  First, let's assume for the
sake of argument (and to clarify our analysis) a counterfactual, namely,
that this were a classic religious exemption:  On Mondays, Wednesdays and
Fridays from 9:15 to 11 a.m., and on Sunday afternoons from 2:45 to 4:45,
the Bedford pool is open only to women who have *religious *objections to
co-ed swimming.  Would that violate the Establishment Clause?

Most of the discussion here has focused on harm to those who would not be
able to use the pool during those eight hours of the week.  But that's
putting the cart before the horse.  Under governing doctrine, a
religion-only accommodation is ok only if it alleviates a significant
state-imposed burden on religious exercise.  Are the orthodox women
significantly burdened by the city's general rule that its pools are open
to the public at large?

Of course, that's a classic baselines dilemma.  On the one hand, one might
say:  Yes, because their access to a very valuable and universally
available public benefit is conditioned on their willingness to violate a
religious injunction.  Cf. *Sherbert*.  On the other hand, a city does
not *have
to *offer free swimming pools in the first instance, and such a gratuitous
"benefit" is a whole lot less important than the unemployment benefits at
issue in *Sherbert*.  Many people can and do fail to take advantage of
public pools, and their lives are not dramatically diminished as a result.
Unlike in *Sherbert*, the offer of this benefit is very unlikely to induce
anyone to violate religious injunctions.  Or, to put it slightly
differently, the "benefit" itself is access to a *public *pool (akin to a
public park or other place of public accommodation); orthodox women simply
wish that the city were also offering a *different *benefit, i.e., access
to *women-only *pools; and the failure of the state to offer that
alternative benefit cannot be viewed as a significant state-imposed *burden
*on religious exercise.

*If *the "correct" answer is "yes, opening the pool to the public at large
does significantly burden orthodox women's religion," *then *we would need
to address--to weigh--the harm to the other NYC residents who are excluded
during the eight hours.  But here's the interesting point (to me, anyway):
 It's difficult to disaggregate the two assessments of "harm" on either
side of the balance.  If you think that there is no significant harm to the
orthodox women in not being able to use the pool *at all*, then, almost by
definition, there wouldn't be any significant harm to the excluded
residents in being closed off from swimming for eight hours a week.  The
exemption might still be unconstitutional in such a case, because of the
absence of state-imposed harm to religion; but that wouldn't be because of
harm to third parties.  If, by contrast, you think that the rest of the
Bedford residents are materially harmed by being excluded for eight hours,
then wouldn't you have to concede that the state has harmed the orthodox
women by imposing a condition that makes them unable to enjoy the pool at
all?  In the latter case, with harm on both sides, the harm to the women if
the exemption is denied would appear to be greater.  And therefore *if *a
"balance" of harms were relevant to the EC equation (concededly a
contested, and complicated, assumption, and one I am not necessarily
endorsing here), the harm to the women presumably would outweigh the harm
to other residents.

2.  OK, but, as several of you have noted, Bedford isn't the classic
accommodation case.  The exemption in question is not religion-specific --
on its face it benefits all women, whether they have a religious objection
or not.  Because of this, I agree there's a strong presumption that there's
no Establishment Clause problem, regardless of third-party harms.  Indeed,
expanding exemptions so that they are not religion-specific has long been
viewed as a way to *avoid *EC problems, even though such expansions
increase the harm to third parties.  Think of Justice Harlan's explanation
of the tax exemption in *Walz*; or the Court's expansion of the
conscientious exemption law in *Welsh *to avoid EC concerns.  The most
common example of this in recent years is vaccination laws:  Whereas a
purely religious exemption would likely violate the EC, most states allow
exemptions to any parents who have religious *or other *objections, and
that eliminates the constitutional problem, even as it increases the harm
(and idiocy) of the exemption.  Other examples:  Texas could have cured the
EC problem in *Texas Monthly *by expanding the exemption to secular
magazines.  Most abortion "conscience clauses" (e.g., affording physicians
the right to refuse involvement) also are not limited to religious
objections.  Etc.  This makes sense, because 

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

[Hillel Y. Levin]

I confess I'm stymied by the objection Meir has articulated to my
​offending
 paragraph. Jewish laws regarding modesty
​surely *must*
 reflect certain assumptions about women's bodies
​. Why else would there be a religious law concerning mixed swimming (or
women singing in front of men, or showing their elbows or knees, or in the
case of married women, their hair, and so forth?). You'll note that Meir
added a key word in brackets--that the assumptions I attribute to the law
are "negative"--that was not present in my original. Is it good form to
criticize someone for things
​s/​
he did not say? I was taught not.

I made no claim as to what those assumptions are, and this may well be open
to debate. But *that* there are assumptions underlying this religious
principle is, indeed, beyond dispute.

Incidentally, I was taught in my roughly 20 years in various yeshivot that
these assumptions relate to women's bodies being sexual,
 and therefore
​that they ​
​should
 be covered when men are present
​ (except in the case of a spouse, and then only sometimes). Even in saying
that, I am *still *not making a value-laden claim about the
assumption--true, false, positive, negative, or otherwise. In any event, I
have no objection to a co-religionist (or anyone else) challenging this
account of the underlying assumption or framing it otherwise​
. I continue to think, as a normative matter
​ at least (
I guess what Eugene means by "as a basis for ​political opposition"), that
assumptions
​
--whatever they are
​, and whether their source is religious or not​
-- about women's bodies
​ in particular that relate to sexual modesty
should not be reflected
​ in and reinforced​
​by
 the law.

To be sure, this does not respond to the question both Eugene and Meir
raise: should judges take into account
​an
 underlying
​, embedded​
​assumption/message
?

I'm not sure what the answer to that question is, but at the very least we
do know that judges
​do
 take into account in estab clause cases the question of what a reasonable
observer would likely understand
​--​
how s/he would interpret the gov action. To get at that question, judges
consider history
​ and
 social context. That might distinguish this case from Eugene's Wiccan
example
​--the history and social context may be different enough to matter​
. In the end, though, I'm not sure how this issue cuts in this case
​, and I don't have religion on the question.​

In any event, I'm not
​convinced
 there's an
​Establishment Clause
problem here under the third party harms analysis. Random men (and women,
​boys, ​
girls
​. . . .​
) are excluded from the pool for all kinds of reasons at many times of the
day, as Chris pointed out
​--to accommodate water polo, those learning to swim, learners with
disabilities, ​adult lap swimmers, seniors, etc
. Exclusion from the pool
​for the sake of others ​
is just one of those things that this society has accepted for itself.
​ ​At the very least, it suggests that the third party harm here is minimal
indeed, since this society apparently tolerates that harm (exclusion from
the pool) in spades. Recall that the problem with the statute in *Thornton
v Caldor*, was that *only* religious people were permitted to impose on
third parties; had the law allowed *everyone* to take off on the day of
their choosing, or perhaps had it even allowed religious accommodations
among a menu of other accommodations--it would not have violated the
Establishment Clause. This is true even though a particular person choosing
to take off a particular day--and thus imposing on someone else--may well
be motivated by religious beliefs.

​As several have noted or implied, the swimming pool case presents obvious
Equal Protection problems, more so than it does Establishment Clause issues
(though I do not discount the possibility of an EC violation).

Indeed, the fact that there are no "men's only" hours makes this an *easy* EP
case. "Separate but equal" may be acceptable in some gender segregation
cases under EP. Separate-gender bathrooms are presumptively permissible
under EP; separate gendered schools may be tolerated in some circumstances.
But offering *only* women's bathrooms or *only* boys' schools ​isn't an
option, right? If they added men's only swim hours, the EP case becomes
more difficult. My instinct (and it is only that) is that it would still be
unconstitutional; but at a minimum the EP clause requires *at least* formal
equality.






On Monday, June 6, 2016, 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