What's the baseline?

The New York Times has an article about several universities in Michigan and elsewhere installing footbaths for the use of Muslim students, whose religion dictates that prior to their quince-daily prayers, they must wash their feet. It seems that some students had been washing their feet in the sinks in the bathrooms, resulting in wet floors and sinks pulling away from the walls.

The question being raised by conservative bloggers and others is whether the expenditures by the public universities (some of the units cost $25,000 each) constitutes an unconstitutional (no pun intended) establishment of religion.

On its face, the answer to this question seems to be "of course." The state, through its agents, is building fixtures specifically for the use of a single religious group (statements about lacrosse players washing their feet and janitors filling buckets notwithstanding). But as usual, this question is much more interesting.

Some Muslims have raised a valid point that the schedule of every public school makes accommodations for Christmas, by definition a Christian holiday. So any thoughts of the state's non-intervention into religious activities are illusory.

I'm not suggesting a radical re-scheduling of school calendars nationwide. I think it's pretty obvious that the schedules as they are work to the benefit of Christians, but by this point, after 200+ years of dependence on such schedules, changing them would do more harm than good. It's important though, to realize that the current status quo does support an establishment of religion. Since we can't change at this point, let's accept it as the current baseline.

If that's the baseline, then any additional accommodations for a particular religion are unconstitutional. That's not to say that government cannot make changes to get out of the way of religious practices; it must allow citizens to practice their religions unencumbered. It may not prohibit individual citizens (or groups of them) from exercising their religious views. It may not prohibit girls and women from wearing the hijab; it may not prevent students from holding prayer meetings.

But it may not go out of its way, above and beyond the established baseline, to support a particular religion. It may not erect monuments to the Ten Commandments on public property, and it may not build facilities to aid any particular religious practice. In other words, no publicly-funded footbaths.

So then. Must universities let students wash their feet in the sink? Maybe. They certainly can't prevent students from washing their feet, if that's what their religion requires. Obviously there's the potential for a slippery slope here (what if my worship of the Flying Spaghetti Monster dictates that I play Four Square in a study lounge? Must a university let me practice my religion?), but let's table them for the time being. It's not clear, though, that they must allow students to wash their feet in sinks not designed for that purpose, especially if doing so creates a legitimate public danger (it's no stretch to imagine someone clipping and breaking their neck washing their feet in a sink; is the school liable?). Can the students wash their feet in any other manner? Can they, for example, use the showers without too much trouble? If so, then there's no reason the school can't forbid them from using the sink, simply for their own safety. If not, then there's an argument for building the footbaths.

But seriously: $25,000? That's the cost of several full scholarships at most state schools.