RE: Jewish law, women's bodies, and accommodations
1. Like Meir, I interpreted Hillel’s post as suggesting that the assumptions he attributes to Jewish modesty laws are “negative.” Hillel wrote, “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.” I assume that there would be little problem with the law reflecting or reinforcing positive messages about women’s and girls’ bodies; indeed, the government tries to send such messages often. Indeed, consider Hillel’s followup post about my Wiccan hypothetical. I hypothesized a town where “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.” Hillel suggested that it might be different from the Orthodox Jewish example, because “the history and social context may be different enough to matter.” But this difference, in my hypo, is simply that the assumptions about women’s and girl’s bodies embedded in Wiccan views would be positive, rather than negative. Maybe I misunderstood the message Hillel was trying to send, but I wanted to explain why I think Meir shouldn’t be faulted for understanding an implicit “[negative]” in Hillel’s post. 2. But more broadly, as to judges’ considering “history and social context” in determining and evaluating the “assumptions and norms” that an accommodation would “reflect” or “reinforce,” wouldn’t that itself pose far more of an endorsement problem that it would solve? (I agree, by the way, with the recent post that said that the endorsement test shouldn’t apply to government accommodations, but let’s set that aside for a moment.) Courts would have to decide, as a matter of constitutional law, just what are the assumptions and norms on which a religious law is based – a matter that members of the religion might bitterly disagree on. And a judgment that, for instance, the Wiccan assumptions are something that government actions may reflect or reinforce, but that the Orthodox Jewish assumptions are something that government actions may not reflect or reinforce, seems very likely to be understood as endorsement of Wiccan theology (as being founded on good assumptions) and disapproval of Orthodox Jewish theology (as being founded on bad ones). Can that be right? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin Sent: Tuesday, June 07, 2016 4:17 AM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> Subject: Re: Jewish law, women's bodies, and accommodations I confess I'm stymied by the objection Meir has articulated to my offending paragraph. Jewish laws regarding modesty surely must reflect certain assumptions about women's bodies . Why else would there be a religious law concerning mixed swimming (or women singing in front of men, or showing their elbows or knees, or in the case of married women, their hair, and so forth?). You'll note that Meir added a key word in brackets--that the assumptions I attribute to the law are "negative"--that was not present in my original. Is it good form to criticize someone for things s/ he did not say? I was taught not. I made no claim as to what those assumptions are, and this may well be open to debate. But that there are assumptions underlying this religious principle is, indeed, beyond dispute. Incidentally, I was taught in my roughly 20 years in various yeshivot that these assumptions 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). Even in saying that, I am still not making a value-laden claim about the assumption--true, false, positive, negative, or otherwise. In any event, I have no objection to a co-religionist (or anyone else) challenging this account of the underlying assumption or framing it otherwise . I continue to think, as a normative matter at least ( I guess what Eugene means by "as a basis for political opposition"), that assumptions --whatever they are , and whether their source is religious or not -- about women's bodies in particular that relate to sexual modesty should not be reflected in and reinforced by the law. To be sure, this does not respond to the question both Eugene and Meir raise: should judges take into account an underlying , embedded assumptio
Re: Jewish law, women's bodies, and accommodations
s 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 + > 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: > > <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 secul
Re: Jewish law, women's bodies, and accommodations
ertising 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 +
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
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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
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Religi
RE: Jewish law, women's bodies, and accommodations
It certainly doesn’t answer Chip’s particular questions about the judicial role in the situation here, but the Supreme Court’s decision in Amos, or at least Justice Brennan’s opinion in that case, can be read to support a balancing inquiry in addressing the issue of third-party harms. Decided two years after Caldor, the Court upheld Title VII’s religious-organization exception to the statute’s ban on religious discrimination in employment, finding the accommodation permissible even though it obviously imposes a burden on the livelihood - and the religious freedom - of employees and employment applicants (even for nonreligious jobs) who do not conform to the employer’s religion. In his opinion concurring in the judgment, Brennan endorsed a balancing inquiry, concluding that the free exercise interest of religious organizations—“an interest in autonomy in ordering their internal affairs” [cf. Hosanna-Tabor]—was sufficiently important to override the burden on third parties, permitting the Title VII exemption because it “appropriately balances these competing concerns.” 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: Monday, June 06, 2016 12:50 PM To: Law & Religion issues for Law Academics Subject: Re: Jewish law, women's bodies, and accommodations I agree that it's not for the state to arbitrate between Hillel's and Meir's view about what is embedded in Jewish law with respect to women's bodies. But I want to go back to Eugene's earlier argument that 3rd party harms are not relevant to the Establishment Clause problem because the accommodation is not religion-specific -- that is, the hours are "women only," not "Jewish women only." True enough, but there is still a gerrymander here -- this is not a City wide policy. It applies only to this one neighborhood pool, in a neighborhood with a strong Orthodox Jewish presence. (If the policy were city-wide, it would help all women who want female-only swimming hours, for whatever reason. The sex discrimination problem would remain.) In light of the conspicuous religious gerrymander, perhaps we need to add Kiryas Joel to the mix of relevant cases. When the policy is 1) motivated by religion specific concerns, and 2) geographically limited to reflect those concerns, perhaps the Caldor problem of harms to third parties (men, who want those hours to swim, and the weekday hours may be just as important to some of them as the Sunday hours) remains. If so, I repeat the question -- is the relevant test one of "balancing" religious accommodations against inconvenience to others? How would we do that, with or without interrogating religious reasoning? On Mon, Jun 6, 2016 at 12:20 PM, Meir Katz <meirka...@gmail.com<mailto:meirka...@gmail.com>> wrote: 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 adherent
Re: Jewish law, women's bodies, and accommodations
; Message: 1 > Date: Sat, 4 Jun 2016 00:50:23 + > From: "Volokh, Eugene" <vol...@law.ucla.edu> <vol...@law.ucla.edu> > To: Law & Religion issues for Law Academics > <religionlaw@lists.ucla.edu> <religionlaw@lists.ucla.edu> > Subject: Jewish law, women's bodies, and accommodations > Message-ID: > > <cy1pr0501mb13231558cb1f1f33875cea3af6...@cy1pr0501mb1323.namprd05.prod.outlook.com> > > <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 > listreligion...@lists.ucla.eduhttp://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. > > End of Religionlaw Digest, Vol 147, Issue 4 > *** > > > > ___ > 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. > -- 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.
RE: Jewish law, women's bodies, and accommodations
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 adherent
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 +
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:
<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 singl
Jewish law, women's bodies, and accommodations
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 ___ 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.
