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 legislatures will seldom be willing to expand exemptions in this way -- but when they do, the EC problem (generally) disappears. 3. This does not mean, however, that the religious impetus for the exemption is necessarily irrelevant to constitutional analysis. For one thing, as Chip emphasizes, this might be a *de facto *religious exemption, gerrymandered so that almost all of the benefited women are orthodox Jews. (NYC does not provide single-sex hours to all the other millions of women in the city.) In which case, we'd need to "apply" *Kiryas Joel*. Which is complicated. 4. More provocatively, perhaps, I think that the religious impetus for even a non-religion-specific "women-only" exemption might have a bearing on the *Equal Protection *question. Let's assume, *arguendo*, that Eugene is correct that it would be constitutional for NYC to provide single-sex swimming hours for *both *sexes. (I'm dubious, but willing to concede the point for the sake of argument.) Even so, I think even Eugene would agree that providing such a benefit only to women, and not to men--as NYC has done here--is *much *more difficult to justify, because it is so manifestly based upon, and propagates, the sort of "women have more of a need for modesty" stereotypes that are constitutionally problematic (at best). NYC's *justification*, in response to the EPC claim, would presumably be "we don't have any particular view about women's distinct needs for modesty; but we were doing this to accommodate an Orthodox Jewish community's particular views about the proper sex roles of women." Wouldn't that justification be inadmissible, even if NYC vociferously (and truthfully) denied that it shared or endorsed the views of the orthodox community? To be clear: I'm not suggesting that such a justification would be inadmissible *because *the community's objection is religious, but instead because "accommodating religious views that are off-limits to the state itself" is not an adequate justification for the state's own sex-based discrimination. Does that sound right?
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