There may well be an Equal Protection Clause problem with sex-segregated swimming hours (whether or not equal time is given for men-only swimming). But if the suggestion is that there’s an Establishment Clause problem – apart from the Equal Protection Clause problem – with the fact that the government is implementing a religiously based rule, that seems to me not correct, as McGowan v. Maryland, Harris v. McRae, and Bob Jones Univ. correctly hold.
More broadly, if a state could (and I agree that it’s a big “if”) institute sex-segregated swimming hours to accommodate some women’s secular preferences (as described in the Livingwell case), it seems to me that a state is equally free to institute sex-segregated swimming hours to accommodate some women’s religious preferences. (Nor would there be a problem under the “no religious purpose” prong of Lemon, among other things given that Corp. of Presiding Bishop has made clear that accommodating religious preferences is not an impermissible religious purpose.) Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul Finkelman Sent: Monday, June 06, 2016 9:35 AM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> Subject: Re: Jewish law, women's bodies, and accommodations The last paragraph of Professor Katz's posting below seems to point to why the separate swimming times are unconstitutional: the City of New York (and the Courts) have no business (or competence) to regulate religious behavior or conduct, just as they cannot possibly determine what is kosher and what is not kosher. The City of NY or any government entity can certainly offer reasonable accommodations for religious practice. Hence after Goldman v. Weinberger Congress provided an accommodation for observant Jewish men in the military to keep their heads covered while indoors. One could imagine the City of New York having a rule on swimming clothes that would allow swimmers to wear a wet suit in the pools to conform to their religious views on modesty (assuming there were no health hazards for such suits bring extra bacteria into the pool). But, this is not the same as closing the pool to all men in accordance with the religious preferences of some potential swimmers. Nor would it be permissible to require men or women to all wear wet suits or other special "modest" swimming clothes to accommodate men or women who are offended (because of their religious beliefs) by others swimming in more revealing attire. ****************** Paul Finkelman Ariel F. Sallows Visiting Professor of Human Rights Law College of Law University of Saskatchewan 15 Campus Drive Saskatoon, SK S7N 5A6 CANADA paul.finkel...@yahoo.com<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: Meir Katz <meirka...@gmail.com<mailto:meirka...@gmail.com>> To: religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu> Sent: Monday, June 6, 2016 12:20 PM Subject: Re: Jewish law, women's bodies, and accommodations Hillel's assumption that "Jewish laws relating to sexual modesty have embedded within them, and reinforce, certain [negative] assumptions and norms about women's and girls' bodies [that are contrary to public policy]" is both incorrect and not widely held by those who observe those laws. The laws have a rather different purpose, one certainly not contrary to public policy, that was shared broadly by civil society until the 1950s. I would be interested to learn from where Hillel's assumption derives. In any event, even if Hillel's assumption were arguably correct, it would still be inappropriate, as Eugene inquires, for a judge (or, for that matter, any third-party decision-maker) to use that assumption to bias his decisions. A civil judge cannot be in the position of deciding religious questions or determining the contours of religious law. For one to conclude that "Jewish laws relating to sexual modesty have embedded within them, and reinforce, certain [negative] assumptions," he would need to have a deep and rather sophisticated understanding not just of what those Jewish laws require, but also where they come from, why they exist, and how they impact those who follow them. That inquiry necessarily intrudes deeply into religious thought. Even if a civil judge were able to perform that inquiry properly and reach an accurate conclusion, it is not a proper role for that judge. Moreover, as I intimated in my first paragraph, the assumption that Hillel reaches is contrary to the purpose and objective behind Jewish modesty laws as generally understood by its adherents. As a result, using the assumption to guide judicial decision-making would not merely improperly impose physical burdens on the religious adherents, it would also impose on them an alternative understanding as to what their religious laws actually mean. If the women (and men) who willingly subject themselves to religious modesty laws understand those laws as not as reinforcing norms and assumptions that are contrary to public policy (broadly defined), why should the contrary, and possibly unfounded, assumptions of a judge (or anyone) play any role at all in determining their entitlement to observe that law at state expense? And what authority does a civil judge have to tell them that their laws have some alternative purpose or function? Similarly, false advertising and other claims against kosher certifying agencies and food manufacturers that produce food labeled "kosher," despite not being kosher from the perspective of the plaintiff, fail precisely because civil courts lack the authority to determine how Jewish law operates or whether a given food item is kosher under Jewish law. It certainly follows that courts lack the authority to determine the purpose underlying the laws of kashrut--say, perhaps, to promote hygiene--and then use that assumption to resolve related matters. Indeed, permitting a court to decide the why behind religious law is a greater intrusion into the religious sphere than permitting a court to decide the what. That analysis applies no differently when discussing religious laws governing modesty, regardless of the popularity of those laws in civil society. Meir Katz Message: 1 Date: Sat, 4 Jun 2016 00:50:23 +0000 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> Subject: Jewish law, women's bodies, and accommodations Message-ID: <cy1pr0501mb13231558cb1f1f33875cea3af6...@cy1pr0501mb1323.namprd05.prod.outlook.com><mailto:cy1pr0501mb13231558cb1f1f33875cea3af6...@cy1pr0501mb1323.namprd05.prod.outlook.com> Content-Type: text/plain; charset="utf-8" Hillel Levin writes: My primary opposition to the gender-segregated swim hours is not simply the formal segregation of the sexes and the practical burdens this may pose on people. Rather, it is that the Jewish laws relating to sexual modesty have embedded within them, and reinforce, certain assumptions and norms about women's and girls' bodies. I don't think the law should reflect, reinforce, or send those messages in public spaces. Setting this aside as a basis for political opposition, are courts allowed to consider the underlying assumptions and norms that may be said to be embedded in religious laws? Say that in town J, there are many Orthodox Jews, and many Orthodox women want single-sex swim hours because of Jewish laws that are based on, and ?reinforce? ?certain assumptions and norms about women?s and girls? bodies.? Say that in town W, there are many Wiccan Goddess-worshippers, and many women who belong to that group want single-sex swim hours because they believe women should spend more time celebrating and improving their bodies free of male observation and the self-consciousness and body image problems that it brings. And say that in town S, there are many secular people, and many women in that town like single-sex swim hours for the secular reasons given in the Livingwell case I mentioned before. Could it be that courts might uphold the single-sex pool hours in town W and maybe town S, because the women?s preferences are based on good assumptions and norms about women?s bodied, but reject them in town J because the judges think that Jewish law is based on bad assumptions and preferences? Eugene -------------- next part -------------- An HTML attachment was scrubbed... URL: <http://lists.ucla.edu/pipermail/religionlaw/attachments/20160604/0bc0563a/attachment-0001.html><http://lists.ucla.edu/pipermail/religionlaw/attachments/20160604/0bc0563a/attachment-0001.html> ------------------------------ _______________________________________________ Religionlaw mailing list Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. 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