“It’s not a violation of the separation of church and state, it’s not promoting any religion, even in the most expansive definition of that constitutional prohibition,” Mark told CNA.
“The flip side is I don’t think anybody’s freedom of religion entitles them to such an accommodation, but I think it’s probably the right thing for the local government to do that seems perfectly appropriate,” he added.
Swimming pool staffers told the AP they announced that the women-only hours would discontinue in June, but they received so many complaints that they decided to keep the schedule while the policy was under review.
Mark said unless the policy was putting an extreme burden on other municipal resources, the pool is likely not violating the establishment clause in the United States Constitution.
“To make room for people to enjoy, on an equal basis, a state or local amenity is certainly not a promotion of that religion,” he said.
“It’s not that they’re entitled to it, probably, but assuming that it’s not a great burden on the fellow citizens and assuming that the other fellow citizens are people of goodwill, then I think we should all be very glad to (accommodate them).”
Such reasonable accommodations exist in other areas of civic life, Mark noted. For example, many public parks that advertise specific hours for children accompanied by adults, during which adults without children are not allowed to be at the park. Some playgrounds do not allow for adults without children to be there at all, for the safety of children.
“You can say of course that’s a burden on adults who happen to be free during the day and want to enjoy the park recreationally at that time, but it’s something that we as a society think is a good way to accommodate our fellow citizens with different needs,” he said.
“Not everybody has kids, not everybody cares about this, but it’s just reasonable.”
Furthermore, it’s not just Hasidic Jewish women who are allowed swim during the women-only hours. The pool staff told the AP that Muslim women also take advantage of the hours, and it’s likely that women who would just prefer not to swim with men also enjoy the policy, Mark said.
“If it’s overwhelmed the schedule to the point where your average American family can’t get time at the pool because everything is special hours for x, special hours for y, special hours for z, then it would be a problem,” he said.
Mark also noted that the critics cite two different possible complaints - separation of church and state and sex discrimination - making it unclear who exactly was unduly burdened by the policy to the point that they felt it necessary to complain.
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“What is your complaint here? Or do you just not like these people because they’re religious and you’re just kind of grasping at straws looking for anything that you can say that will get them out of the pool?” he said.
“We would all be better off living in society looking at how we could make room for each other, instead of looking at how we can crowd each other out by claiming that the behavior that we don’t prefer is a violation of our rights.”