Is it fair to say that Eugene is presenting a minimum rationality account of the state interest here. No doubt he is correct that there are marginal benefits to feeling confident in water--which I lament that I never have--but that is true also, say, with regard to the benefits of eating broccoli.
I'm all for accommodations that impose no serious costs on non-believers. This doesn't strike me as such a case. I suppose the most serious problem for me involves all the other constraints on open access. If the kids or lap swimmers are treated as special, then why not the religious? A good exam question! Sandy Sent from my iPhone On Jun 3, 2016, at 4:08 AM, Volokh, Eugene <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote: Government interests in people going to the pool are at least of some importance. Pool time helps people learn to swim, which can prevent drownings; further pool time helps them improve their swimming, which can further help prevent drownings (and help people become strong enough swimmers that they can rescue others). Swimming is good exercise, which can improve people’s health. And there is a significant government interest in having people of all religions being able to take advantage of the services that are paid for with their tax dollars. The key question, I think, is what kind of justification is required here. Are single-sex places aimed at protecting privacy and modesty, such as single-sex changing rooms, constitutional only because they pass the usual very demanding Equal Protection Clause scrutiny for sex classifications? Or is it that there is a lesser standard of scrutiny for single-sex programs aimed at protecting privacy and modesty, much as the Court has said that there is a lesser standard for sex classifications that reflect real biological differences (such as the difference in the difficulty of proving paternity versus maternity)? And if there is such a lesser standard, would it extend to programs aimed at protecting privacy and modesty as understood by a minority cultural group, even when that departs from the national majority’s understanding of privacy and modesty? Eugene From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Thursday, June 02, 2016 6:48 PM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Subject: Re: thoughts on constitutionality of single-sex hours for public pool? I strongly suspect Alan's Adventist basketball team example involves discrimination, because no games were scheduled on Sunday. The discrimination is the burden from which relief is deserved. Religious diversity in higher education might well be a compelling interest, so CUNY might want to accommodate religious minorities re: privacy or modesty concerns, though there would remain questions of harm to third parties. Religious diversity in public swimming pools does not seem to present an interest of any importance whatsoever. On Thursday, June 2, 2016, Alan E Brownstein <aebrownst...@ucdavis.edu<mailto:aebrownst...@ucdavis.edu>> wrote: I think it is both reasonable and valid to accommodate religious groups whose members would be unable to enjoy benefits that the majority enjoys because of conflicts with a minority faiths beliefs. No one has to attend the prom or go on discretionary field trips or play in intra mural sports. But these are valued opportunities.I fully appreciate that the cost of accommodations may be too high -- as it often will be if it requires discrimination against third parties. But that is very different than arguing there is no valid interest in providing accommodations in these cases. Years ago I helped out in a case involving an Adventist high school that was barred from playing in a state basketball tournament because they asked for an accommodation so they would not have play on the Sabbath. If their games could be scheduled to avoid playing on the Sabbath at minimal cost to others, why shouldn't their religious beliefs be accommodated? The fact that there is no requirement to play in state basketball tournaments seems to me to be an unpersuasive basis for denying an accommodation in this kind of a case. Alan Sent from my iPhone On Jun 2, 2016, at 7:49 PM, "Ira Lupu" <icl...@law.gwu.edu<javascript:_e(%7B%7D,'cvml','icl...@law.gwu.edu');>> wrote: Paul is raising, among other questions, an entirely appropriate baseline question -- how do sexually integrated public pools burden anyone's religious freedom? No one is coerced to use them. The pools are a constitutionally gratuitous benefit, offered on conventional conditions of no sex discrimination. If there is no burden on religious freedom, then there is no justification for an accommodation. On Thursday, June 2, 2016, Volokh, Eugene <vol...@law.ucla.edu<javascript:_e(%7B%7D,'cvml','vol...@law.ucla.edu');>> wrote: I think Prof. Finkelman and I might be talking past each other here, but I’d love to hear what others think. Eugene From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul Finkelman Sent: Thursday, June 02, 2016 5:37 PM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Subject: Re: thoughts on constitutionality of single-sex hours for public pool? single sex dressing rooms do not discriminate against anyone he way the pool does. I assume the dressing rooms are not arbitrarily closed to only allow one sex to use any dressing room. Eugene, I actually doubt there are any people on this list (or very many on law faculties) or in the US who would think that single sex dressing rooms are unconstitutional. So why raise the analogy. The issue here is whether you deny access because a religious group demand its; given the racial arguments of many religious groups (going back to proslavery religious thought and going to Bob Jones University and beyond) it is not impossible to imagine a single race religious argument. Some religious groups have been making them for 150 years or more. (If you want examples of early versions, see Paul Finkelman, Defending Slavery: Proslavery Thought in the Old South). So, it is not impossible or implausible to make the analogy here. I don't see what the accommodation is. IF you have a university of high school that requires a swimming test to graduate (I knew someone who almost did not graduate from college because she could not pass the swimming test, in 1968), then there might be an accommodation issue. But, short of a requirement that people go swimming in the public pool, what is the accommodation here? Anyone can use the pool any time; anyone can choose not to use the pool any time. No one is required to use the pool ever. What is the accommodation issue? ****************** Paul Finkelman Ariel F. Sallows Visiting Professor of Human Rights Law College of Law University of Saskatchewan 15 Campus Drive Saskatoon, SK S7N 5A6 CANADA paul.finkel...@yahoo.com<mailto:paul.finkel...@yahoo.com> c) 518.605.0296 and Senior Fellow Democracy, Citizenship and Constitutionalism Program University of Pennsylvania Call Send SMS Call from mobile Add to Skype You'll need Skype CreditFree via Skype ________________________________ From: "Volokh, Eugene" <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Sent: Thursday, June 2, 2016 7:45 PM Subject: RE: thoughts on constitutionality of single-sex hours for public pool? I’m not at all sure that this form of sex classification is constitutional. But, as is often the case with analogies between single-sex and single-race, I don’t think the simple sex/race analogy is helpful here. I take it that few of us would think that single-sex dressing rooms are “about as constitutional as single race dressing rooms.” The government can legitimately accommodate some sorts of privacy/modesty concerns, at least when it comes to people seeing each other in a state of undress or near-undress. Then-Professor Ginsburg so wrote in the 1970s in response to criticism of the ERA; Justice Ginsburg so noted in United States v. Virginia; many courts have even said that denial of such privacy (e.g., in prisons, where prisoners are searched by guards of the opposite sex) is a constitutional violation. Perhaps Justice Ginsburg is tantamount to a racial segregationist, but I doubt it. Of course, the exposure of one’s body at a swimming pool isn’t the same as the exposure in a shower or even in a changing room; we know that precisely because our culture generally has mixed-sex swimming pools but single-sex changing rooms. But some cultures, especially some religiously-linked cultures, draw the privacy/modesty line in a somewhat different place – not a vastly different place, but a significantly different place. The question is to what extent government actors (and, under public accommodation laws, private institutions) may accommodate that differently placed line. Categorically equating sex classifications with race classifications, I think, doesn’t really help us answer that question. Eugene From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul Finkelman Sent: Thursday, June 2, 2016 4:03 PM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Subject: Re: thoughts on constitutionality of single-sex hours for public pool? This seems about as constitutional as single race swimming pools. I appreciate the desire of Ultra Orthodox Jews to live the life they want to life. That is what the Constitution protects. But it also protects the rights of everyone else to live their lives. That has to mean equal access to all pools. There is also an interesting glitch. Some of my Orthodox male relatives and friends are uncomfortable around women in "immodest" dress are swimming pools. So they might need single sex pools as well. Then there are all sorts of transgender issues, too complicated to imagine. ****************** Paul Finkelman Ariel F. Sallows Visiting Professor of Human Rights Law College of Law University of Saskatchewan 15 Campus Drive Saskatoon, SK S7N 5A6 CANADA paul.finkel...@yahoo.com<mailto:paul.finkel...@yahoo.com> c) 518.605.0296 and Senior Fellow Democracy, Citizenship and Constitutionalism Program University of Pennsylvania Call Send SMS Call from mobile Add to Skype You'll need Skype CreditFree via Skype ________________________________ From: Marty Lederman <lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>> To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Sent: Thursday, June 2, 2016 6:18 PM Subject: thoughts on constitutionality of single-sex hours for public pool? permissible accommodation? http://www.nytimes.com/2016/06/01/opinion/everybody-into-the-pool.html _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law, Emeritus George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 Co-author (with Professor Robert Tuttle) of "Secular Government, Religious People" ( Wm. B. Eerdmans Pub. Co., 2014)) My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<javascript:_e(%7B%7D,'cvml','Religionlaw@lists.ucla.edu');> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law, Emeritus George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 Co-author (with Professor Robert Tuttle) of "Secular Government, Religious People" ( Wm. B. Eerdmans Pub. Co., 2014)) My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
