I appreciate Mr. Decinque's explanation of the costs that might be incurred if the Mock Trial Competition accommodated religious teams that are prohibited by their religion from participating in the competition on Saturday, their Sabbath. But I'm unpersuaded by his argument in support of the Smith regime for several reasons.
First, individuals and/or the public often incur costs as the price for protecting fundamental rights. Certainly, this is true for freedom of speech. Of course, at some point the costs of protecting a right may be too expensive and the exercise of the right has to be abridged. But the price here does not seem that high when one compares it to the price both individuals and communities have to pay as a result of the protection we routinely provide to hurtful or unpopular speech. Second, Mr. Decinque seems to assume that the cost of accommodating a religious school's team must fall exclusively on the particular team against which they were scheduled to compete. But there are lots of ways to spread or mitigate those costs. If the Mock Trial Competition solicited donations to create a fund to mitigate the additional expenses incurred when religious accommodations required the rescheduling of matches, they might find that many individuals and institutions were willing to offer financial support for religious accommodations in the tournament. Or the cost could be spread among all the competitors. The easiest answer to a request for a religious accommodation is always to say no. But that doesn't mean that there aren't alternative approaches available to avoid any teams being seriously disadvantaged. Third, Mr. Decinque concedes that The Mock Trial Board should reschedule competition dates when it is feasible to do so. But the Smith regime, which he apparently supports, doesn't require feasible accommodation. It gives decision makers the discretion to refuse accommodations even when it is feasible to provide them. Still, the Mock Trial Competition isn't the worst offender in this area. I consulted on a dispute a few years ago involving a basketball tournament in Oregon. A Seventh-day Adventist school's team asked the Athletic Association managing the tournament to accommodate their religious obligations by trying not to schedule their games on Friday night or Saturday. The Adventist team indicated that if an accommodation was really impractical they would be willing to forfeit a game scheduled on their Sabbath. The Athletic Association responded that in order for the Adventist school's team to play any games in the tournament, they would have to promise to play all of the games on their schedule. That is, they would have to be willing to commit to playing on the Sabbath, if a game was scheduled on Saturday, in order to be allowed to play games scheduled for the other days of the week. Under Smith, it would be hard to challenge this rule as well since a requirement that all teams play all scheduled games is a neutral law of general applicability. I don't agree with Brad very often on this list. But I do on this issue. Alan Brownstein From: [email protected] [[email protected]] On Behalf Of Anthony Decinque [[email protected]] Sent: Saturday, May 09, 2009 8:20 AM To: Law & Religion issues for Law Academics Subject: Re: Law.com - Religious Accommodation Dispute Over Mock Trial ScheduleResolved But as someone who has participated in many mock trial tournaments, including the National (College) Tournament, the board's decision seems like the best thing. Teams travel from around the country to attend the tournament. The fund-raising that is required to attend is a massive undertaking - as captain of my team, I remember spending hours pleading with the University and with donors. We put on "exhibition" trials and tried anything else we could think of to raise money. High school and college students also miss school to attend. To go through that trouble and then find out that, because of the religious beliefs of another team, your team has to either (1) come back another weekend, or (2) change hotels/flights and stay an extra day, is unreasonable. No one can claim that they were surprised that the the tournament extends to the sabbath. That has been the schedule for decades. I feel sorry for the students that had to forfeit. I remember facing a team who told us that they would have to forfeit if they beat us because they couldn't compete on the sabbath. (We solved that problem by beating them.) But I don't think that this has much to do with Smith because I think the decision is correct under a pre-Smith regime as well. If anything, it supports Smith because now we know that a judge is not going to second-guess the decision of the people who have managed this tournament for decades. I'm afraid that your a-b-c formula below is just a fact of life. We should avoid the situation when we can--the board should change the date if it's feasible, for example--but the situation can't be avoided without giving every religious belief veto power. Anthony _______________________________________________ To post, send message to [email protected] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
