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<mailto: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 <lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>> 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 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? _______________________________________________ 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 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.
