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Should There Be Different Rules for Jews and Muslims at Public Pools?

The New York Times opposes women-only swimming hours for Orthodox Jews, but the paper has been silent on the same accommodations for Muslim women

Yair Rosenberg
June 02, 2016
(Shutterstock)New York Times
(Shutterstock)(Shutterstock)New York Times
(Shutterstock)New York Times
(Shutterstock)(Shutterstock)New York Times

In October 2013, the government-funded YMCA of St. Paul, Minnesota, in partnership with the St. Paul Police Department, launched exclusive pool hours for young Muslim women ages 5-17 to learn the basics of swimming. The goal, reported the Star Tribune, was to enable each of these women to “have the privacy she needed to enjoy the water while still adhering to her family’s cultural and religious beliefs.” The article cited the police chief who had brokered the arrangement, and explained how it worked in detail:

Special considerations have to be made to address modesty concerns so that the Muslim girls can swim and not reveal too much of themselves.

During the hourlong swim practice, all other swimmers are cleared out of the pool. The men’s locker room is locked. Female life guards are brought in…

The police department helps provide transportation for the girls to the YMCA.

While celebrated locally, the program was quickly denounced as “creeping sharia” by anti-Islam writers on the far-right. “Should we not instead be teaching these young girls that America is a land of equality of opportunity,” wrote the editor-in-chief of the website of former conservative Congressman Allen West. “Why is it that America must accept this cultural norm and the Somali community not accept ours?” The article was titled “Sharia Law: Coming to a Swimming Pool Near You.” In a piece headlined “Sharia in Minnesota,” notorious anti-Islam bigot Pamela Geller proclaimed, “There are are thousands of Islamic centers across the country—sharia swim belongs there, not in our public pools.”

Meanwhile, the program was defended by ThinkProgress, which mocked an alarmist segment by Fox News’s Heather Nauert about it. “Nauert doesn’t exactly explain why this is a problem,” wrote Travis Waldron, “other than making it seem that we should all be outraged about a pool making special accommodations to a religious minority for an entire hour.”

On Wednesday, however, Geller and company seemed to receive support from an unexpected quarter: the editorial board of The New York Times. In a piece entitled “Everybody into the Pool,” the paper denounced women-only swim hours in Brooklyn for Orthodox Jews in remarkably similar terms as the anti-Islam brigade, calling the practice “unmoored from the laws of New York City and the Constitution, and commonly held principles of fairness and equal access.” The women’s swim time, asserted the Times board, evinced a “strong odor of religious intrusion into a secular space.” Echoing Geller, the Times closed by saying, “Let those who cannot abide public, secular rules at a public, secular pool find their own private place to swim when and with whom they see fit.”

Astonishingly, the editorial nowhere mentioned or addressed the fact that Muslim women have been receiving such accommodations for years, not just in Minnesota, but everywhere from San Diego to Seattle. And that’s just at public or publicly-funded facilities. Private institutions like Harvard, Princeton, and George Washington University—not typically understood as bastions of illiberal theocracy—have also established separate swim or gym hours for Muslim women, and would seem to be implicated by the Times‘s argument as well, since it claims such practices are, on principle, “unmoored from … commonly held principles of fairness and equal access,” regardless of the law.

Yet when the Times itself reported on the controversy over Harvard’s separate gym hours for Muslim women in 2008, the editorial board did not weigh in to denounce the adoption of the practice by America’s most prestigious university. And the board has remained silent at the many junctures since then when the issue has resurfaced nationally. Indeed, it is exceedingly odd that the national paper of record only excoriated the practice of sex-segregated swimming when it became aware of religious Jews engaging in it, and even then, omitted the identical practices of religious Muslims.

To be charitable, perhaps this particular editorial was written by the local New York subdivision of the board, whose members were unaware of similar national accommodations made for Muslim communities for many years, and did not carefully research the subject. In any case, regardless of whether one opposes or supports such religious accommodations, the singling out of Jews for them is striking and discomforting, and certainly avoids a full reckoning with the implications of eliminating them.

But what of the merits of the argument against women-only swimming itself? The Times editorial, while full of assertions about the illegality of the practice, did not cite a single legal scholar. So I talked to two of the top experts in the field of the First Amendment and religious accommodation: Noah Feldman of Harvard and Eugene Volokh of UCLA, the former a noted progressive and the latter a prominent libertarian. While they differed on the merits of the Times‘s argument, they both agreed on one thing: if correct, the editorial’s claims applied just as equally to long-standing accommodations for Muslims.

So, do the women-only hours indeed violate “the laws of New York City and the Constitution”? “No,” said Feldman. “The laws are a constitutional accommodation of religion. And the NYC Human Rights law also allows for public policy accommodations; this qualifies.” (Feldman hopes to write in detail on this subject for his column at Bloomberg View.) I asked Feldman if the Times‘s argument was correct on the merits, would it also implicate Muslims with the same accommodations? “Yes,” he said.

Volokh, by contrast, was less sanguine about the practice. Though there is “a plausible case” to be made for the legality of sex-segregated swimming, he said, “this is a kind of religious accommodation that ends up benefiting some at the expense of others, and those are the kinds that are considered especially troublesome, especially when they involve presumptively forbidden forms of discrimination.” As such, he continued, “on balance, I think The New York Times is probably right as to the result although I think its rhetoric may be a bit overheated.” But, Volokh added, “surely the answer must be the same for Muslims.”

Personally, I come down on Feldman’s side. Given that both traditionalist Muslims and Jews support these public facilities with their tax money, it seems unfair to deny them just a few hours when they can actually use them comfortably in areas where they constitute a significant proportion of the population. Moreover, at a time when Republican presidential nominee Donald Trump and his supporters are actively working to make both Muslims and Jews feel unwelcome in America, liberals ought to be especially sensitive to moves that would exacerbate this dynamic.

But while the merits of the pool policy are certainly debatable, the merits of the Times pinning it on the Jews—when such controversies have swirled around Muslims for years—should not be. If the Times opposes such accommodations for Muslims, it ought to say so explicitly and own the implications for the integration of Muslims into American life. And if it doesn’t, it ought to reconsider its selective opprobrium for religious Jews engaging in the same practice. After all, unfairly singling out one minority for criticism in an article premised on the paramount importance of equal treatment doesn’t exactly bolster its case.

Yair Rosenberg is a senior writer at Tablet. Subscribe to his newsletter, listen to his music, and follow him on Twitter and Facebook.

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