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)" 
<mj...@virginia.edu<mailto:mj...@virginia.edu>>
 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" 
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>>
 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> 
[mailto:religionlaw-boun...@lists.ucla.edu<mailto: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 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
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" 
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>>
 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

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" 
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>>
 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> 
[mailto:religionlaw-boun...@lists.ucla.edu<mailto: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 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
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" 
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>>
 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

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 <religionlaw@lists.ucla.edu>
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" 
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>>
 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> 
[mailto:religionlaw-boun...@lists.ucla.edu<mailto: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 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
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

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" <vol...@law.ucla.edu>
>  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 <religionlaw@lists.ucla.edu>
> *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 <vol...@law.ucla.edu> 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 re

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" 
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>>
 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> 
[mailto:religionlaw-boun...@lists.ucla.edu<mailto: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 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
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 
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> 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 gerrymand

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 <religionlaw@lists.ucla.edu>
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> 
[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> 
[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 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
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

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 <religionlaw@lists.ucla.edu>
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 
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> 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> 
[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 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
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

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> 
[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 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
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" 
<icl...@law.gwu.edu<mailto:icl...@law.gwu.edu>> wrote:
I agree that it's not for the state to arbitrate between Hillel's and Meir's 
view about what is embedded i

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