The Constitution protects women-only swim hours for Orthodox Jewish women (and others)

The following was co-authored with Stephanie Phillips and appeared in the New York Daily News and NYDailyNews.com on July 26, 2016.

Just off Bedford Ave. in Brooklyn stands the Metropolitan Recreation Center. Built in 1922, the Department of Public Works hoped its indoor pool would help promote public health and serve the entire Williamsburg community — a community heavily populated with members of the Orthodox Jewish faith.

Orthodox Jewish women believe that swimming with men violates their faith. So, for decades, the pool has adjusted its operating hours to accommodate such beliefs, allowing women time to swim alone for a few hours each week. It was just one of the ways the recreation center sets aside time for a wide variety of people to access the public pool, including young swimmers, lap swimmers, water polo players, and more.

Then one person complained — calling in the New York City Human Rights Commission, which briefly ordered the women out of the pool, then pulled back after a backlash. Finally, in early July, the city’s Parks Department announced a compromise: As of this fall, the women-only times will be reduced from six to four hours a week.

Critics of the pool’s policy assert that religious beliefs should not be accommodated and, thus, Orthodox Jewish women should not be allowed to use the pool. To these critics, it is more important to make sure that men have access to the pool at all times than that Orthodox women have a few hours where they can swim without violating their beliefs.

Others have gone as far as to suggest that the women find their own, private place to swim — not so subtly implying that the only permissible expression of religion is religion expressed in private, at home, or in a place of worship. The New York Times editorial board, for example, condemned what it calls the "strong odor of religious intrusion into a secular space" and "a theocratic view of government services."

The Supreme Court of the United States disagrees. In the 1952 Zorach vs. Clauson ruling, the Court explained, "When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs."

Assemblyman Dov Hikind seems to understand the importance of government "adjusting the schedule of public events to sectarian needs," and he has been instrumental in helping the New York City Human Rights Commission maintain a reasonable accommodation of this public service to the spiritual needs of this community.

But for those intent on depriving any religious minority of their right to freely exercise their religious beliefs, the Supreme Court has an answer: "[W]e find no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence."

These women — and the beliefs they bring to the public arena — are important to the community of Williamsburg, the borough of Brooklyn, the city of New York and the country as a whole. We echo the sentiments of our Supreme Court when it says of our country's commitment to religious liberty, "We make room for as wide a variety of beliefs and creeds as the spiritual needs of man deem necessary."

Our country has historically rejected any hostile ideology that banishes religious minorities from public view or treats them with contempt. America tolerates religious pluralism because in that diversity we find unity as a nation. We are a better country — and New York is a freer city — when we respect our religious neighbors and provide them equal access to the public square.

Dys is senior counsel for Liberty Institute, a non-profit law firm dedicated to defending religious freedom for all. Phillips is a Judicial Fellow for First Liberty Institute and a graduate of Harvard Law School.