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>
To: Law & Religion issues for Law Academics
<religionlaw@lists.ucla.edu>
Subject: Jewish law, women's bodies, and accommodations
Message-ID:
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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
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