Criticism quickly worked its way back to the Times. Over at Tablet, Yair Rosenberg highlighted a similar case of accommodation for Muslim American swimmers in Minnesota in 2013, which had then ignited a spasm of panic about a “creeping Sharia law” from predictable quarters. Rosenberg placed the paper in the unenviable company of anti-Muslim siren Pamela Geller. Others pointed out that, earlier this year, a rapturous Times feature on a Toronto neighborhood’s efforts to integrate Muslim immigrants led with a scene of a Somali woman enjoying a swim in a public pool during a women-only session.
Of course, how The New York Times negotiates its international features and local editorials isn’t the question here. Navigating the constitutionality of religious accommodation and human rights in New York City is complicated business. Ambassador Norman Eisen, a visiting fellow at the Brookings Institution and a former ethics czar under President Obama, saw no problem with the accommodation in general, but did push back against the pool’s proposed Sunday afternoon hours.
“That might not meet the reasonable accommodation test under the First Amendment,” he said in a phone call on Thursday. “Freedom of religion has two components in our system: the freedom from having other peoples’ religion imposed upon you, but also the freedom to exercise your own religion. The way we balance these two aspects is to have reasonable accommodation.”
Eisen also noted the existence of “hundred of thousands” examples of such accommodation in the United States, including allowing beards and religious head coverings in the military for Jews and Sikhs and others, just one situation of many “where potentially there are more life or death consequences than in a swimming pool.” Others argue that the women-only decree isn’t meant to simply accommodate Jewish women in the community.
“The City of New York is not establishing religion by accommodating women for swimming hours any more than suspending alternate side of the street parking on Rosh Hashanah or Good Friday or any other religious holiday is legally establishing religion,” said Nathan Diament, the executive director for the Orthodox Union Advocacy Center. He added that it would be different if this were a city-wide policy. “It’s dealing with a specific community in a specific neighborhood in a very appropriate and balanced way,” he said.
Nevertheless, for absolutists, any instance in which a taxpayer is kept from using a public facility for a religious consideration is a non-starter. Given that the pool is situated on the very same avenue where a public bike lane was controversially removed in 2009 in an appeal to the community’s concerns over modesty, it’s easy to see why this issue plays so divisively on dry land.
If there is any solace for the enraged, it’s that this issue goes both ways. Back in 2013, the pool at the Metropolitan Recreation Center engendered more muted controversy when, in deference to the First Amendment rights of its staff, the parks department wouldn’t commit to providing a female lifeguard there during women-only swim time. Ultimately, a solution was found.