In reading about this dispute, it seems that this entire situation exposes
the fatal flaw in the thinking in Employment Division v. Smith. It's clear
that the rules regarding the mock trial schedule are generally applicable
and neutral on their face. However, the end result was discriminatory. The
Jewish students' choices were a) choose a different religion that wouldn't
place the same requirements on them, b) violate the tenets of their faith,
or c) forfeit the competition. The National High School Mock Trial
Championship's board could have chosen to accomodate their faith. Their
decision not to accomodate, although not intended to be discriminatory, had
nonetheless an unmistakably discriminatory effect.
They were, however, using the same principles that undergird Smith. Did the
schedule cover all the competing teams? Yes, it was generally applicable.
Did they single out the Jewish faith (or any other faith) for differing
treatment? No, it was neutral on its face. Prior to having their hand
forced by the judge, were they a governing body who had the opportunity to
choose to accomodate and chose not to? Yes.
Now let's take what I wrote above and recast it according to Employment
Division v. Smith.
Smith's choices were a) choose a different religion that wouldn't place the
same requirements on him, b) violate the tenets of his faith, or c) forfeit
his unemployment benefits. The Oregon state legislature could have chosen
to accomodate his faith. Their decision not to accomodate, although not
intended to be discriminatory, had nonetheless an unmistakably
discriminatory effect.
This is what the First Amendment, as our guarantor of religious freedom, is
suppose to prevent. The fact that the logic of Employment Division v. Smith
precludes it from offering the protection it is supposed to speaks volumes.
The situation with the mock trial competition is helpful in exposing that
weakness in the real world.
Brad Pardee
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