RE: Basketball tournaments on the Sabbath

[Alan Brownstein]

Eugene is correct that the more private the program, the less obligation there 
is to accommodate others. But I wasn't focusing on the TAPPS program. I was 
trying to respond to Marci's more general question. The tournament organizers 
in the Oregon case I referenced were state actors. In other cases, state 
institutions may provide much of the funding for tournament events, provide 
access to public venues where games are played and generally facilitate and 
support the tournament. The greater the state involvement in the tournament, 
the more appropriate the basis for a religious liberty argument.  

Even in a private situation, say a commercial context, I think it is fair to 
talk about religious liberty being burdened if employers refuse to hire members 
of a particular faith or motels will not rent them rooms etc. If the employer's 
decision is grounded on his or her own religious beliefs, religious liberty may 
be on both sides. If religious practice and belief are not justifications for a 
refusal to accommodate, but economic or administrative convenience concerns are 
the basis for denying an accommodation, I have no trouble talking about 
religious liberty (or religious equality) being weighed against economic 
liberty or other private interests. 

Alan


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Volokh, Eugene [vol...@law.ucla.edu]
Sent: Sunday, March 04, 2012 2:17 PM
To: Law & Religion issues for Law Academics
Subject: RE: Basketball tournaments on the Sabbath

I wonder whether "religious liberty" is exactly the right term here, where 
we're talking about access to a privately provided program, and one that is 
hardly essential for life or livelihood.  The question isn't just whether 
Orthodox Jews are free to live as good Orthodox Jews, or even are free to get 
broadly available benefits of the welfare state that are important to survival 
(such as unemployment compensation).  Rather, the question is whether other 
private parties should adapt their behavior -- their exercise of their own 
liberty -- to accommodate Orthodox Jews' felt religious obligations.  That's an 
interesting question, and the answer might well be that they should so adapt 
their behavior, if it's a low-cost adaptation, out of hospitality or kindness 
or application of the Golden Rule or some such.  But I think that talk of 
"liberty" here is not very helpful.

Eugene


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Alan Brownstein [aebrownst...@ucdavis.edu]
Sent: Sunday, March 04, 2012 12:33 PM
To: Law & Religion issues for Law Academics
Subject: RE: Basketball tournaments on the Sabbath


I don't view these issues as absolute "Yes" or "No" questions. I think 
tournament organizers should take the religious beliefs of participants into 
account, but there will be situations where the cost to others of particular 
accommodations will be too high for the requested accommodation to be granted.



Some accommodations are relatively low cost. If two semi-final games are going 
to be played Saturday afternoon and evening, why shouldn't the organizers 
accommodate the needs of a religious school's team that observes Saturday as 
the Sabbath and schedule their game for the evening rather the afternoon? Some 
rejections of accommodations create unnecessary burdens for religious schools. 
In the Oregon litigation I referenced earlier, the tournament organizers 
refused to allow the Adventist School's team to play in any tournament games 
unless they would commit to playing every game scheduled even if it fell on the 
Sabbath.



Other harder cases may involve higher costs. Even here, however, sometimes 
there may be creative solutions that mitigate burdens or spread costs. If we 
value religious liberty and are concerned about the exclusion and isolation of 
religious minorities, we should take accommodation problems seriously -- 
although that does not mean that the accommodation will always be granted.



Alan Brownstein
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RE: Basketball tournaments on the Sabbath

[Volokh, Eugene]

I wonder whether "religious liberty" is exactly the right term here, where 
we're talking about access to a privately provided program, and one that is 
hardly essential for life or livelihood.  The question isn't just whether 
Orthodox Jews are free to live as good Orthodox Jews, or even are free to get 
broadly available benefits of the welfare state that are important to survival 
(such as unemployment compensation).  Rather, the question is whether other 
private parties should adapt their behavior -- their exercise of their own 
liberty -- to accommodate Orthodox Jews' felt religious obligations.  That's an 
interesting question, and the answer might well be that they should so adapt 
their behavior, if it's a low-cost adaptation, out of hospitality or kindness 
or application of the Golden Rule or some such.  But I think that talk of 
"liberty" here is not very helpful.

Eugene


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Alan Brownstein [aebrownst...@ucdavis.edu]
Sent: Sunday, March 04, 2012 12:33 PM
To: Law & Religion issues for Law Academics
Subject: RE: Basketball tournaments on the Sabbath


I don't view these issues as absolute "Yes" or "No" questions. I think 
tournament organizers should take the religious beliefs of participants into 
account, but there will be situations where the cost to others of particular 
accommodations will be too high for the requested accommodation to be granted.



Some accommodations are relatively low cost. If two semi-final games are going 
to be played Saturday afternoon and evening, why shouldn't the organizers 
accommodate the needs of a religious school's team that observes Saturday as 
the Sabbath and schedule their game for the evening rather the afternoon? Some 
rejections of accommodations create unnecessary burdens for religious schools. 
In the Oregon litigation I referenced earlier, the tournament organizers 
refused to allow the Adventist School's team to play in any tournament games 
unless they would commit to playing every game scheduled even if it fell on the 
Sabbath.



Other harder cases may involve higher costs. Even here, however, sometimes 
there may be creative solutions that mitigate burdens or spread costs. If we 
value religious liberty and are concerned about the exclusion and isolation of 
religious minorities, we should take accommodation problems seriously -- 
although that does not mean that the accommodation will always be granted.



Alan Brownstein
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Selective Support of Religious Liberty

[Marty Lederman]

Perhaps a topic worthy of its own dedicated thread:  The phenomenon is
hardly unique to the evangelical movement.  Doug is of course correct that
there are many lawyers and others, evangelical or otherwise, who do great
work on behalf of religious liberty "for all."  I am increasingly
concerned, however, that the majority of self-professed religious liberty
allies, who worked so well and sensitively together on matters such as RFRA
and RLUIPA, are distressingly selective when it comes to their solicitude
for the religious liberty (and equality) of nonmajoritarian religious
observers.  I am thinking, in particular, of the rather deafening lack of
objection (on this list and in public), resources, amicus support, etc., in
high-profile cases such as Simpson v. Chesterfield County (as clear a case
of unjustifiable religious discrimination as one can imagine -- and one in
which it was impossible to round up any support for amicus participation);
Summum; Hernandez; most conspicuously and egregiously, the Park51/Cordoba
House controversy; and, I would add, Newdow.  The list could go on.

There are, of course, exceptions -- very important exceptions.  (See, e.g.,
Doug's own superlative brief in Newdow; AJC's amicus support in Hernandez)
 And I realize that every case has its own idiosyncracies and contested
predicates.  Still, I find myself increasingly dubious about whether the
religious liberty "coalition" includes many who are truly dedicated to
religious liberty, broadly speaking.

I realize this is a sensitive and complex topic.  And if it results
primarily in acrimony here, I offer my apology in advance.  But it seems to
have been lurking beneath the surface of many cases discussed on this list
over the past few years, and therefore I thought perhaps it warrants its
own discussion, not least because I would love to be persuaded that my
suspicions and disappointments are unwarranted.

On Sat, Mar 3, 2012 at 11:49 AM, Douglas Laycock wrote:

> Well, I thought the e-mail below was going only to one person. So let me
> provide more context for the comment.
>
> Of course there are many tolerant people in the evangelical movement,
> including lawyers who do great work on behalf of religious liberty for all.
> They understand that religious liberty is not safe for anyone unless it
> protects everyone. But there are many others, whose work is dedicated to
> issues other than religious liberty, who have not thought about these
> issues
> and have not gotten that message. In my 25 years in Texas, I met and worked
> with and read reports of the comments of many evangelicals who were
> comfortable with diversity and tolerant of Jews and Muslims, and of many
> others who were not. And all I meant to say was that folks from the second
> group seem to be in control of the Texas Association of Private and
> Parochial Schools.
>
> Douglas Laycock
> Robert E. Scott Distinguished Professor of Law
> University of Virginia Law School
> 580 Massie Road
> Charlottesville, VA  22903
> 434-243-8546
>
>
> -Original Message-
> From: religionlaw-boun...@lists.ucla.edu
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock
> Sent: Saturday, March 03, 2012 11:26 AM
> To: 'Law & Religion issues for Law Academics'
> Subject: RE: Basketball tournaments on the Sabbath
>
> This morning's story in the Times confirms the unreconstructed Texans
> theory. It looks like the conservative evangelical schools have taken
> control of this organization, and tolerance of diversity has never been one
> of their strengths.
>
> Douglas Laycock
> Robert E. Scott Distinguished Professor of Law University of Virginia Law
> School
> 580 Massie Road
> Charlottesville, VA  22903
> 434-243-8546
>
>
>
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RE: Basketball tournaments on the Sabbath

[Alan Brownstein]

I don't view these issues as absolute "Yes" or "No" questions. I think 
tournament organizers should take the religious beliefs of participants into 
account, but there will be situations where the cost to others of particular 
accommodations will be too high for the requested accommodation to be granted.



Some accommodations are relatively low cost. If two semi-final games are going 
to be played Saturday afternoon and evening, why shouldn't the organizers 
accommodate the needs of a religious school's team that observes Saturday as 
the Sabbath and schedule their game for the evening rather the afternoon? Some 
rejections of accommodations create unnecessary burdens for religious schools. 
In the Oregon litigation I referenced earlier, the tournament organizers 
refused to allow the Adventist School's team to play in any tournament games 
unless they would commit to playing every game scheduled even if it fell on the 
Sabbath.



Other harder cases may involve higher costs. Even here, however, sometimes 
there may be creative solutions that mitigate burdens or spread costs. If we 
value religious liberty and are concerned about the exclusion and isolation of 
religious minorities, we should take accommodation problems seriously -- 
although that does not mean that the accommodation will always be granted.



Alan Brownstein


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Marci Hamilton [hamilto...@aol.com]
Sent: Sunday, March 04, 2012 7:33 AM
To: Law & Religion issues for Law Academics
Cc: Law & Religion issues for Law Academics
Subject: Re: Basketball tournaments on the Sabbath

I agree with Paul here, and with the TAPPs ultimate decision which they should 
have reached earlier.   Rick seemed to imply that I and others might not agree 
with it so I wanted to clarify my comments   As I said originally, I was asking 
the big picture question.  These events have many moving parts

 I don't think common sense is enough of an answer.

I will return to the harder question   Do list participants expect state and/or 
national tournaments to be reorganized according to the religious beliefs of 
some of the teams or players?  My daughter and I are at the National Field 
Hockey Indoor Tournament this weekend.  It is a longstanding annual event.  120 
out of 300 private club teams competitively qualify annually.  And when the 
venue and timing is chosen  no one knows who is going to be attending.   
Families and coaches can attend because a weekend does not conflict w most work 
and school schedules.

Should such an event change its days of operation to avoid religious conflicts? 
   I think the answer has to be noOr should they wait for the ad hoc 
request?   Or should they be able to say to all clubs we can't accommodate 
religious or other requests because of the complexity of the event?  A la Bowen 
v Roy and Lee?

Folks may be tired of this thread at this point but I am interested in any 
thoughts

Marci





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Re: Selective Support of Religious Liberty

[Marc Stern]

Marty is right. but the problem is not limited to the right. The "left" is 
completely unsympathetic to religious liberty claims in equality cases or 
reproductive rights cases. Look at hosanna tabor or christian legal 
society-the-latter struck me as an easy case the court got all wrong. but look 
at the line-up of amici. almost no crossing of lines.
Among the causes are the difficulties in raising funds and rallying the troops 
from the middle-as well as a fundamental divide between those who prefer 
liberty rights to equality and those who think equality always trumps.
Marc

From: Marty Lederman [mailto:lederman.ma...@gmail.com]
Sent: Sunday, March 04, 2012 07:16 AM
To: Law & Religion issues for Law Academics 
Subject: Selective Support of Religious Liberty

Perhaps a topic worthy of its own dedicated thread:  The phenomenon is hardly 
unique to the evangelical movement.  Doug is of course correct that there are 
many lawyers and others, evangelical or otherwise, who do great work on behalf 
of religious liberty "for all."  I am increasingly concerned, however, that the 
majority of self-professed religious liberty allies, who worked so well and 
sensitively together on matters such as RFRA and RLUIPA, are distressingly 
selective when it comes to their solicitude for the religious liberty (and 
equality) of nonmajoritarian religious observers.  I am thinking, in 
particular, of the rather deafening lack of objection (on this list and in 
public), resources, amicus support, etc., in high-profile cases such as Simpson 
v. Chesterfield County (as clear a case of unjustifiable religious 
discrimination as one can imagine -- and one in which it was impossible to 
round up any support for amicus participation); Summum; Hernandez; most 
conspicuously and egregiously, the Park51/Cordoba House controversy; and, I 
would add, Newdow.  The list could go on.

There are, of course, exceptions -- very important exceptions.  (See, e.g., 
Doug's own superlative brief in Newdow; AJC's amicus support in Hernandez)  And 
I realize that every case has its own idiosyncracies and contested predicates.  
Still, I find myself increasingly dubious about whether the religious liberty 
"coalition" includes many who are truly dedicated to religious liberty, broadly 
speaking.

I realize this is a sensitive and complex topic.  And if it results primarily 
in acrimony here, I offer my apology in advance.  But it seems to have been 
lurking beneath the surface of many cases discussed on this list over the past 
few years, and therefore I thought perhaps it warrants its own discussion, not 
least because I would love to be persuaded that my suspicions and 
disappointments are unwarranted.

On Sat, Mar 3, 2012 at 11:49 AM, Douglas Laycock 
mailto:dlayc...@virginia.edu>> wrote:
Well, I thought the e-mail below was going only to one person. So let me
provide more context for the comment.

Of course there are many tolerant people in the evangelical movement,
including lawyers who do great work on behalf of religious liberty for all.
They understand that religious liberty is not safe for anyone unless it
protects everyone. But there are many others, whose work is dedicated to
issues other than religious liberty, who have not thought about these issues
and have not gotten that message. In my 25 years in Texas, I met and worked
with and read reports of the comments of many evangelicals who were
comfortable with diversity and tolerant of Jews and Muslims, and of many
others who were not. And all I meant to say was that folks from the second
group seem to be in control of the Texas Association of Private and
Parochial Schools.

Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA  22903
434-243-8546


-Original Message-
From: 
religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu]
 On Behalf Of Douglas Laycock
Sent: Saturday, March 03, 2012 11:26 AM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Basketball tournaments on the Sabbath

This morning's story in the Times confirms the unreconstructed Texans
theory. It looks like the conservative evangelical schools have taken
control of this organization, and tolerance of diversity has never been one
of their strengths.

Douglas Laycock
Robert E. Scott Distinguished Professor of Law University of Virginia Law
School
580 Massie Road
Charlottesville, VA  22903
434-243-8546


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RE: Basketball tournaments on the Sabbath

[Saperstein, David]

H.. Take off for the Jewish Sabbath and see what you miss - even on the 
religion law listserve.  Must be a good lawsuit in this somewhere, but I leave 
it to Stern to figure out :)

Just an historical footnote Alan: The Puritans observed the Sabbath from 
sundown  Saturday until sundown Sunday.  Don't know if any sabbaterian sects 
still do that.  May be some small ones.
The case Marc Stern alludes to is:  Playcrafters Student Members v Teaneck TP. 
Bd of Ed, 88 NJ 74 (1981) 438 a.2d 543.
Knowing how many rabid sports fans dominate this list:


FORT WORTH, Texas -- An inspired comeback in the fourth quarter fell short 
Saturday night and a state title eluded the Orthodox Jewish high school 
basketball team from Houston.

Robert M. Beren Academy closed a 12-point deficit to two in the final minute, 
but could get no closer in a 46-42 loss to Abilene Christian in the Texas 
Association of Private and Parochial Schools' Class 2A championship game at 
Nolan Catholic High School.

David

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Armstrong
Sent: Saturday, March 03, 2012 4:51 PM
To: Law & Religion issues for Law Academics
Subject: Re: Basketball tournaments on the Sabbath

I think that is not relevant.

I thought the Saturday afternoon/evening mass was for those who could not make 
it to church Sunday morning.

An Orange County Register columnist, Frank Mickadeit, called it the "slakers' 
mass."

Alan

Law Office of Alan Leigh Armstrong
Office 18652 Florida St., Suite 225
Huntington Beach CA 92648-6006
Mail 16835 Algonquin St., Suite 454
Huntington Beach CA 92649-3810
714 375 1147 fax 714 782 6007
a...@alanarmstrong.com
Serving the family and small business since 1984
NOTICE:
 Any tax advice in this e-mail, including attachments, can not be used to
avoid penalties or for the promotion of a tax related matter.








On Mar 3, 2012, at 12:21 PM, Marci Hamilton wrote:


Lots of Catholics go to Saturday evening mass.   Relevant?

On Mar 3, 2012, at 2:55 PM, Alan Armstrong 
mailto:alanarmstrong@verizon.net>> wrote:
My understanding is that Jewish and 7th day adventists consider sabbath as 
going from sundown on Friday to sundown on Saturday. I do not know of any 
christian denominations that use sundown Saturday to sundown on Sunday as the 
Lord's day.Therefore a Saturday night game should be acceptable to all.

A little thought and common sense and we would need fewer lawyers.

Alan

Law Office of Alan Leigh Armstrong
Office 18652 Florida St., Suite 225
Huntington Beach CA 92648-6006
Mail 16835 Algonquin St., Suite 454
Huntington Beach CA 92649-3810
714 375 1147 fax 714 782 6007
a...@alanarmstrong.com
Serving the family and small business since 1984
NOTICE:
 Any tax advice in this e-mail, including attachments, can not be used to
avoid penalties or for the promotion of a tax related matter.








On Mar 2, 2012, at 11:48 AM, Douglas Laycock wrote:


Some of you may have seen the story in the Times the other day about the Beren 
Hebrew Academy in Houston, whose basketball team has reached the state 
semi-finals of the Texas Association of Private and Parochial Schools 
tournament. The semifinal game was scheduled for tonight; the Academy is 
Orthodox and observant, and could not play.  The other school was willing to 
reschedule, but the TAPPS Board voted 8-0 not to allow that. Most TAPPS members 
are church affiliated, and as a matter of policy, it never schedules games on 
Sunday.

Beren parents and students filed a lawsuit this morning in the Northern 
District of Texas, alleging unconstitutional religious discrimination, Texas 
RFRA, and breach of contract (based on a provision in the TAPPS bylaws). The 
complaint's state action theory was that the game was scheduled to be played in 
a public school gym, which is surely not enough. The contract claim looked 
stronger, judging only by the complaint.

Richard Friedman at Michigan tells me that TAPPS caved as soon as the complaint 
was filed, and that the game will begin imminently and will be completed before 
sunset.  If your position is utterly untenable as a matter of public relations, 
it may not matter that the other side's state action theory is very weak. But 
they had to file the lawsuit before common sense could prevail.

Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA  22903
 434-243-8546

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RE: Basketball tournaments on the Sabbath

[Volokh, Eugene]

How would travel concerns affect this?  Since Orthodox Jews 
can't drive on the Sabbath, I assume they would often have to drive out during 
the day Friday and stay over the Sabbath.  Would that be an acceptable burden 
on the students?  Or would this itself be seen as a sufficient burden that it 
should justify rescheduling the game for some other day, when the team won't 
need to have the 24 hours of down time?  These aren't rhetorical questions - I 
don't know the answer to them - but they seem relevant in figuring out how easy 
or difficult such accommodations will tend to be.

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Armstrong
Sent: Saturday, March 03, 2012 11:55 AM
To: Law & Religion issues for Law Academics
Subject: Re: Basketball tournaments on the Sabbath

My understanding is that Jewish and 7th day adventists consider sabbath as 
going from sundown on Friday to sundown on Saturday. I do not know of any 
christian denominations that use sundown Saturday to sundown on Sunday as the 
Lord's day.Therefore a Saturday night game should be acceptable to all.

A little thought and common sense and we would need fewer lawyers.

Alan

Law Office of Alan Leigh Armstrong
Office 18652 Florida St., Suite 225
Huntington Beach CA 92648-6006
Mail 16835 Algonquin St., Suite 454
Huntington Beach CA 92649-3810
714 375 1147 fax 714 782 6007
a...@alanarmstrong.com
Serving the family and small business since 1984
NOTICE:
 Any tax advice in this e-mail, including attachments, can not be used to
avoid penalties or for the promotion of a tax related matter.








On Mar 2, 2012, at 11:48 AM, Douglas Laycock wrote:


Some of you may have seen the story in the Times the other day about the Beren 
Hebrew Academy in Houston, whose basketball team has reached the state 
semi-finals of the Texas Association of Private and Parochial Schools 
tournament. The semifinal game was scheduled for tonight; the Academy is 
Orthodox and observant, and could not play.  The other school was willing to 
reschedule, but the TAPPS Board voted 8-0 not to allow that. Most TAPPS members 
are church affiliated, and as a matter of policy, it never schedules games on 
Sunday.

Beren parents and students filed a lawsuit this morning in the Northern 
District of Texas, alleging unconstitutional religious discrimination, Texas 
RFRA, and breach of contract (based on a provision in the TAPPS bylaws). The 
complaint's state action theory was that the game was scheduled to be played in 
a public school gym, which is surely not enough. The contract claim looked 
stronger, judging only by the complaint.

Richard Friedman at Michigan tells me that TAPPS caved as soon as the complaint 
was filed, and that the game will begin imminently and will be completed before 
sunset.  If your position is utterly untenable as a matter of public relations, 
it may not matter that the other side's state action theory is very weak. But 
they had to file the lawsuit before common sense could prevail.

Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA  22903
 434-243-8546

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Re: Basketball tournaments on the Sabbath

[Marci Hamilton]

That is what happens when I don't review before hitting send.   What goes 
without saying is that I disagree with Rick on this point!   Our positions are 
long known

  Having said that, I clerked the year Smith was decided and I recently 
obtained the Justices' papers on Smith and wrote an article on same.  The 
Justices considered Smith wholly unlike
Sherbert because  the underlying religious conduct was illegal.  Attending  
church on Saturday is legal.  Using peyote was not.   Yoder as considered an 
outlier and by some wrongly decided

I detail this in an article in Cardozo Law Rev last year.  But I also 
highly recommend the foreword to that symposium by the Oregon AG at the time 
who argued Smith.   His insights are critical in coming to a legitimate and 
accurate assessment of Smith

I have been impressed over time by the   
persistence of the unwillingness of some to take the opinion's discussion of 
the "vast majority" of the Court's cases seriously.   Smith and Reynolds are 
not outliers

Marci

On Mar 3, 2012, at 6:48 PM, "Richard D. Friedman"  wrote:

> Say what?  Although I'm a member of this list, I don't follow the law in this 
> area closely, but I know enough that Smith limited Sherbert -- or at least it 
> sure appeared to do so, and Congress sure thought so in purporting to restore 
> religious freedoms after Smith.  I assume Marci has a log-considered take on 
> Smith that is contrary to this widely held perception (shared, e.g., by 
> Wikipedia's article on Smith), but I can't see how that "goes without saying."
> 
> Rich Friedman
> 
> At 06:27 PM 3/3/2012, Marci Hamilton wrote:
>> I'm sure it goes without saying that Rick is 
>> incorrect about Smith.  It did not gut anything
>> It was a case of first impression in the Court's
>> eyes and rightly so.   That is what the 
>> historical record at the Court establishes 
>> clearly.   Folks can dislike Smith but lets 
>> at least nuance the discussion to the point
>> where preferences do not substitute for
>> the actual doctrinal history
>> 
>> Marci
>> 
>> On Mar 3, 2012, at 5:57 PM, "Finkelman, Paul < paul.finkel...@albanylaw.edu 
>> >"< paul.finkel...@albanylaw.edu> wrote:
>> 
>>> Since I have so often -- and often vigorously -- disagreed with Rick, I 
>>> thought it appropriate to endorse his analysis and his use of the Franklin 
>>> analogy.
>>> 
>>> Paul Finkelm
>>> 
>>> Connected by DROID on Verizon Wireless
>>> 
>>> 
>>> -Original message-
>>> From: Rick Duncan < nebraskalawp...@yahoo.com>
>>> To: Law & Religion issues for Law Academics < religionlaw@lists.ucla.edu>
>>> Sent: Sat, Mar 3, 2012 22:47:38 GMT+00:00
>>> Subject: RE: Basketball tournaments on the Sabbath
>>> 
>>> I speak about religious liberty at lots of CLEs for conservative Christian 
>>> lawyers and law students, and I try to tell them that religious liberty is 
>>> a lot like Franklin's view of the American Revolution--"We better all hang 
>>> together, or most assuredly we will all hang separately."
>>> 
>>> The cases in which religious liberty has taken a hit--Reynolds and Smith 
>>> are two of the best examples--are ones involving unpopular religious groups 
>>> or practices. I know a lot of Christians were not to upset about Smith--but 
>>> Smith gutted free exercise for everyone.
>>> 
>>> I know you all know this, but it is worth remembering from time to time.
>>> 
>>> Prof. Rick Duncan (Nebraska Law)
>>> 
>>> See my recent paper on The Tea Party, federalism, and liberty at:
>>>http://ssrn.com/abstract=1984699
>>> 
>>> 
>>> "And against the constitution I have never raised a storm,It's the 
>>> scoundrels who've corrupted it that I want to reform" --Dick Gaughan (from 
>>> the song, Thomas Muir of Huntershill)
>>> 
>>> 
>>> --- On Sat, 3/3/12, Douglas Laycock  wrote:
>>> 
>>> From: Douglas Laycock 
>>> Subject: RE: Basketball tournaments on the Sabbath
>>> To: "'Law & Religion issues for Law Academics'" < 
>>> religionlaw@lists.ucla.edu>
>>> Date: Saturday, March 3, 2012, 8:26 AM
>>> 
>>> This morning's story in the Times confirms the unreconstructed Texans
>>> theory. It looks like the conservative evangelical schools have taken
>>> control of this organization, and tolerance of diversity has never been one
>>> of their strengths. 
>>> 
>>> Douglas Laycock
>>> Robert E. Scott Distinguished Professor of Law
>>> University of Virginia Law School
>>> 580 Massie Road
>>> Charlottesville, VA  22903
>>>  434-243-8546
>>> 
>>> 
>>> -Original Message-
>>> From: religionlaw-boun...@lists.ucla.edu
>>> [ mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Richard D. 
>>> Friedman
>>> Sent: Saturday, March 03, 2012 12:19 AM
>>> To: Law & Religion issues for Law Academics
>>> Subject: Re: Basketball tournaments on the Sabbath
>>> 
>>> The TAPPS website, http://www.tapps.net/, indicates that they agreed to let
>>> Beren play when presented with the papers, before they were actually filed.
>>> But the lawyer who signed the complaint -- wh

RE: Basketball tournaments on the Sabbath

[Rick Duncan]

I speak about religious liberty at lots of CLEs for conservative Christian 
lawyers and law students, and I try to tell them that religious liberty is a 
lot like Franklin's view of the American Revolution--"We better all hang 
together, or most assuredly we will all hang separately."

The cases in which religious liberty has taken a hit--Reynolds and Smith are 
two of the best examples--are ones involving unpopular religious groups or 
practices. I know a lot of Christians were not to upset about Smith--but Smith 
gutted free exercise for everyone.

I know you all know this, but it is worth remembering from time to time.

Prof. Rick Duncan (Nebraska Law)

See my recent paper on The Tea Party, federalism, and liberty at:
   http://ssrn.com/abstract=1984699


"And against the constitution I have never raised a storm,It's the scoundrels 
who've corrupted it that I want to reform" --Dick Gaughan (from the song, 
Thomas Muir of Huntershill)

--- On Sat, 3/3/12, Douglas Laycock  wrote:

From: Douglas Laycock 
Subject: RE: Basketball tournaments on the Sabbath
To: "'Law & Religion issues for Law Academics'" 
Date: Saturday, March 3, 2012, 8:26 AM

This morning's story in the Times confirms the unreconstructed Texans
theory. It looks like the conservative evangelical schools have taken
control of this organization, and tolerance of diversity has never been one
of their strengths. 

Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA  22903
     434-243-8546


-Original Message-
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Richard D. Friedman
Sent: Saturday, March 03, 2012 12:19 AM
To: Law & Religion issues for Law Academics
Subject: Re: Basketball tournaments on the Sabbath

The TAPPS website, http://www.tapps.net/, indicates that they agreed to let
Beren play when presented with the papers, before they were actually filed.
But the lawyer who signed the complaint -- which included the application
for the TRO -- confirmed to me that the papers were indeed filed.  I get the
impression that TAPPS, while saying adamantly that they were going to adhere
to their schedule, decided they would fold quickly if sued; I think someone
there finally realized that they were not casting themselves in a favorable
light.

Rich Friedman

At 07:19 PM 3/2/2012, you wrote:
>It would look less like a discrimination claim and more like an 
>exemption claim. Judges tend to naively assume that the calendar is a 
>neutral set of rules, and the sharply different treatment of Sunday and 
>Saturday here would make it more obvious than usual that that just 
>isn't true.
>
>By the way, I was confused about chronology. The complaint was filed, 
>and TAPPS caved, yesterday. There was another story in the Times this 
>morning. Haven't heard the score of the game.
>
>On Fri, 2 Mar 2012 23:11:44 +
>  "Finkelman, Paul 
> "       
wrote:
> >I am guessing that the leaders of this organization never dreamed
> of a Jewish basketball team going to the finals.  They never heard of 
> Dolph Shayes or Nancy Lieberman.
> >
> >
> >
> >More seriously:  If the organization (which includes many
> Christian schools) played games on Sundays, would the Hebrew high 
> school be in a weaker position?
> >
> >
> >
> >
> >
> >*
> >Paul Finkelman, Ph.D.
> >President William McKinley Distinguished Professor of Law Albany Law 
> >School
> >80 New Scotland Avenue
> >Albany, NY 12208
> >
> >518-445-3386 (p)
> >518-445-3363 (f)
> >
> >paul.finkel...@albanylaw.edu
> >www.paulfinkelman.com
> >*
> >
> >
> >From: religionlaw-boun...@lists.ucla.edu
> [religionlaw-boun...@lists.ucla.edu] on behalf of Ira Lupu 
> [icl...@law.gwu.edu]
> >Sent: Friday, March 02, 2012 6:03 PM
> >To: Law & Religion issues for Law Academics
> >Subject: Re: Basketball tournaments on the Sabbath
> >
> >Today's first semi-final: Houston Beren 58, Dallas Covenant 46 --
> final is after sundown tomorrow evening.
> >
> >Thanks, Doug.
> >
> >On Fri, Mar 2, 2012 at 5:48 PM, Ed Darrell
> mailto:edarr...@sbcglobal.net>> wrote:
> >If your position is utterly untenable as a matter of public
> relations, it may not matter that the other side's state action theory 
> is very weak. But they had to file the lawsuit before common sense 
> could prevail.
> >
> >One more demonstration of the value of lawyers.  Good news that
> they've scheduled the game to fit it in.  Good, good news.
> >
> >Ed Darrell
> >Dallas
> >
> >
> >From: Alan Brownstein
> mailto:aebrownst...@ucdavis.edu>>
> >To: Law & Religion issues for Law Academics
> mailto:religionlaw@lists.ucla.edu>>
> >Sent: Fri, March 2, 2012 3:35:05 PM
> >Subject: RE: Basketball tournaments on the Sabbath
> 

Re: Basketball tournaments on the Sabbath

[Marci Hamilton]

Thanks Rick for your viewpoint.   It does not answer
my constitutional or public policy question.   

Marci

On Mar 3, 2012, at 2:02 PM, Rick Duncan  wrote:

> 
> This was clearly the right thing to do. An association of private religious 
> schools should be eager to recognize religious liberty for everyone.
> 
> Prof. Rick Duncan (Nebraska Law)
> 
> See my recent paper on The Tea Party, federalism, and liberty at:
>http://ssrn.com/abstract=1984699
> 
> 
> "And against the constitution I have never raised a storm,It's the scoundrels 
> who've corrupted it that I want to reform" --Dick Gaughan (from the song, 
> Thomas Muir of Huntershill)
> 
> 
> --- On Fri, 3/2/12, Richard D. Friedman  wrote:
> 
> From: Richard D. Friedman 
> Subject: Re: Basketball tournaments on the Sabbath
> To: "Law & Religion issues for Law Academics" 
> Date: Friday, March 2, 2012, 9:19 PM
> 
> The TAPPS website, http://www.tapps.net/, indicates that they agreed to let 
> Beren play when presented with the papers, before they were actually filed.  
> But the lawyer who signed the complaint -- which included the application for 
> the TRO -- confirmed to me that the papers were indeed filed.  I get the 
> impression that TAPPS, while saying adamantly that they were going to adhere 
> to their schedule, decided they would fold quickly if sued; I think someone 
> there finally realized that they were not casting themselves in a favorable 
> light.
> 
> Rich Friedman
> 
> At 07:19 PM 3/2/2012, you wrote:
> > It would look less like a discrimination claim and more like an exemption 
> > claim. Judges tend to naively assume that the calendar is a neutral set of 
> > rules, and the sharply different treatment of Sunday and Saturday here 
> > would make it more obvious than usual that that just isn't true.
> > 
> > By the way, I was confused about chronology. The complaint was filed, and 
> > TAPPS caved, yesterday. There was another story in the Times this morning. 
> > Haven't heard the score of the game.
> > 
> > On Fri, 2 Mar 2012 23:11:44 +
> >  "Finkelman, Paul "   
> >  wrote:
> > >I am guessing that the leaders of this organization never dreamed of a 
> > >Jewish basketball team going to the finals.  They never heard of Dolph 
> > >Shayes or Nancy Lieberman.
> > >
> > >
> > >
> > >More seriously:  If the organization (which includes many Christian 
> > >schools) played games on Sundays, would the Hebrew high school be in a 
> > >weaker position?
> > >
> > >
> > >
> > >
> > >
> > >*
> > >Paul Finkelman, Ph.D.
> > >President William McKinley Distinguished Professor of Law
> > >Albany Law School
> > >80 New Scotland Avenue
> > >Albany, NY 12208
> > >
> > >518-445-3386 (p)
> > >518-445-3363 (f)
> > >
> > >paul.finkel...@albanylaw.edu
> > >www.paulfinkelman.com
> > >*
> > >
> > >
> > >From: religionlaw-boun...@lists.ucla.edu 
> > >[religionlaw-boun...@lists.ucla.edu] on behalf of Ira Lupu 
> > >[icl...@law.gwu.edu]
> > >Sent: Friday, March 02, 2012 6:03 PM
> > >To: Law & Religion issues for Law Academics
> > >Subject: Re: Basketball tournaments on the Sabbath
> > >
> > >Today's first semi-final: Houston Beren 58, Dallas Covenant 46 -- final is 
> > >after sundown tomorrow evening.
> > >
> > >Thanks, Doug.
> > >
> > >On Fri, Mar 2, 2012 at 5:48 PM, Ed Darrell 
> > >mailto:edarr...@sbcglobal.net>> wrote:
> > >If your position is utterly untenable as a matter of public relations, it 
> > >may not matter that the other side's state action theory is very weak. But 
> > >they had to file the lawsuit before common sense could prevail.
> > >
> > >One more demonstration of the value of lawyers.  Good news that they've 
> > >scheduled the game to fit it in.  Good, good news.
> > >
> > >Ed Darrell
> > >Dallas
> > >
> > >
> > >From: Alan Brownstein 
> > >mailto:aebrownst...@ucdavis.edu>>
> > >To: Law & Religion issues for Law Academics 
> > >mailto:religionlaw@lists.ucla.edu>>
> > >Sent: Fri, March 2, 2012 3:35:05 PM
> > >Subject: RE: Basketball tournaments on the Sabbath
> > >
> > >A somewhat  similar lawsuit was litigated by students attending the 
> > >Portland Adventist Academy (and their parents) against the Oregon State 
> > >Activities Association which is a state actor. After 8 years of 
> > >litigation, the students succeeded in their state anti-discrimination 
> > >claims. See Nakashima v. Bd. Of Educ., 334 Or. 487 (2008)
> > >
> > >Alan Brownstein
> > >
> > >
> > >
> > >From: 
> > >religionlaw-boun...@lists.ucla.edu
> > > 
> > >[mailto:religionlaw-boun...@lists.ucla.edu]
> > > On Behalf Of Douglas Laycock
> > >Sent: Friday, March 02, 2012 11:48 AM
> > >To: 'Law & Religion issues for Law Academics'
> > >Subject: Basket

Re: Basketball tournaments on the Sabbath

[Paul Horwitz]

I agree generally with Eugene's point--which I would generalize to just 
about every situation--that "common sense," like many other such phrases 
(certainly including "respect," or "the rule of law") is too capacious a term 
to resolve most disputes. In this case, one would have to both understand and 
expand the context sufficiently to help one reach a reasonable resolution of 
the dispute, and even then there would be more than one such resolution. In 
this case, it seems to me that the road to a reasonable resolution of the 
problem lies in the fact that TAPPS opened itself to a situation in which it 
welcomed the possibility of sporting events involving others whose religious 
needs might require accommodation. If the league had remained solely devoted to 
Christian schools and, in effect, had valued Christian community over sports or 
all-state intramural play itself, then refusing to change its schedule would a) 
be reasonable and b) not be much of a problem, since the issue would be 
unlikely ever to arise. Once it took the step of opening play to 
non-Christians, however, including those with an equally thick set of religious 
commitments, then common sense, if not simply being a good host, would suggest 
that the league ought to anticipate and accommodate the religious needs of its 
guests. But certainly the work here is not done by invoking "common sense" 
alone.

I do, though, think it's worth taking slight issue with the view that 
common sense "tells us that there is real value to following rules with no 
exceptions." I appreciate that this phrase leaves open room for ambiguity and 
charitable interpretation; not least, Eugene says "real value," not "absolute 
value." But I still think its worth emphasizing that I can think of few if any 
conditions in which a regime intended for application to human affairs would 
common-sensically lead to a belief in following rules with no exceptions -- 
except perhaps, in situations where the rules themselves are already drawn up 
in such a way that the exceptions are either implicit or explicit. Of course, 
it is indeed true of rules generally that they contain explicit or implicit 
exceptions. Even Smith, read common-sensically, is not a rule meant to be 
followed with no exceptions: it contains both implicit and explicit exceptions. 
Even the military, a realm in which more people would be likely to agree that 
rules should be followed with not exceptions, either tailors its rules 
carefully so that they already contain exceptions or, in some quite crucial 
cases, insists that there are situations where one must disobey a command. 

I appreciate that it was just a minor point along the way to a broader 
conclusion that I generally share. Still, at least in an audience of lawyers, I 
think it is always worth emphasizing that no sound system of rules could 
possibly insist on complete obedience, and that any understanding of the rule 
of law that does not make allowance, either implicitly or explicitly, for 
ignoring, avoiding, disobeying, or violating rules resembles madness more 
closely than it does common sense.

Best to all, 
Paul Horwitz 
University of Alabama School of Law

On Mar 3, 2012, at 5:41 PM, "Volokh, Eugene"  wrote:

> The trouble with “common sense” is that it often points in 
> different directions.  Common sense tells us there is real value to following 
> rules with no exceptions, so that one doesn’t have to later deal with 
> questions of “you accommodated them, why don’t you accommodate” us (even when 
> the future request for accommodation might be different from the current 
> one), and also to having a schedule that is predictable, especially given 
> that team members and others related to the team may often plan their 
> schedules around the preannounced playing schedule.  Common sense also tells 
> us that there is real value to being flexible, 
___
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Please note that messages sent to this large list cannot be viewed as private.  
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Re: Basketball tournaments on the Sabbath

[Finkelman, Paul]

The "common sense" is what is often lacking and with a sense of fairness and 
toleration.  Apparently for the leaders of the TAPP "common sense" means 
everyone is a Christian and all people have a Sunday sabbath.  The lawyers 
serve as educator to teach common sense and respect for other religions.

Connected by DROID on Verizon Wireless


-Original message-
From: Alan Armstrong 
To: Law & Religion issues for Law Academics 
Sent: Sat, Mar 3, 2012 19:56:56 GMT+00:00
Subject: Re: Basketball tournaments on the Sabbath

My understanding is that Jewish and 7th day adventists consider sabbath as 
going from sundown on Friday to sundown on Saturday. I do not know of any 
christian denominations that use sundown Saturday to sundown on Sunday as the 
Lord's day.Therefore a Saturday night game should be acceptable to all.

A little thought and common sense and we would need fewer lawyers.

Alan

Law Office of Alan Leigh Armstrong
Office 18652 Florida St., Suite 225
Huntington Beach CA 92648-6006
Mail 16835 Algonquin St., Suite 454
Huntington Beach CA 92649-3810
714 375 1147 fax 714 782 6007
a...@alanarmstrong.com
Serving the family and small business since 1984
NOTICE:
 Any tax advice in this e-mail, including attachments, can not be used to
avoid penalties or for the promotion of a tax related matter.








On Mar 2, 2012, at 11:48 AM, Douglas Laycock wrote:

Some of you may have seen the story in the Times the other day about the Beren 
Hebrew Academy in Houston, whose basketball team has reached the state 
semi-finals of the Texas Association of Private and Parochial Schools 
tournament. The semifinal game was scheduled for tonight; the Academy is 
Orthodox and observant, and could not play.  The other school was willing to 
reschedule, but the TAPPS Board voted 8-0 not to allow that. Most TAPPS members 
are church affiliated, and as a matter of policy, it never schedules games on 
Sunday.

Beren parents and students filed a lawsuit this morning in the Northern 
District of Texas, alleging unconstitutional religious discrimination, Texas 
RFRA, and breach of contract (based on a provision in the TAPPS bylaws). The 
complaint’s state action theory was that the game was scheduled to be played in 
a public school gym, which is surely not enough. The contract claim looked 
stronger, judging only by the complaint.

Richard Friedman at Michigan tells me that TAPPS caved as soon as the complaint 
was filed, and that the game will begin imminently and will be completed before 
sunset.  If your position is utterly untenable as a matter of public relations, 
it may not matter that the other side’s state action theory is very weak. But 
they had to file the lawsuit before common sense could prevail.

Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
___
To post, send message to Religionlaw@lists.ucla.edu
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.

RE: Basketball tournaments on the Sabbath

[Finkelman, Paul]

Since I have so often -- and often vigorously -- disagreed with Rick, I thought 
it appropriate to endorse his analysis and his use of the Franklin analogy.

Paul Finkelm

Connected by DROID on Verizon Wireless


-Original message-
From: Rick Duncan 
To: Law & Religion issues for Law Academics 
Sent: Sat, Mar 3, 2012 22:47:38 GMT+00:00
Subject: RE: Basketball tournaments on the Sabbath

I speak about religious liberty at lots of CLEs for conservative Christian 
lawyers and law students, and I try to tell them that religious liberty is a 
lot like Franklin's view of the American Revolution--"We better all hang 
together, or most assuredly we will all hang separately."

The cases in which religious liberty has taken a hit--Reynolds and Smith are 
two of the best examples--are ones involving unpopular religious groups or 
practices. I know a lot of Christians were not to upset about Smith--but Smith 
gutted free exercise for everyone.

I know you all know this, but it is worth remembering from time to time.

Prof. Rick Duncan (Nebraska Law)

See my recent paper on The Tea Party, federalism, and liberty at:
   http://ssrn.com/abstract=1984699


"And against the constitution I have never raised a storm,It's the scoundrels 
who've corrupted it that I want to reform" --Dick Gaughan (from the song, 
Thomas Muir of Huntershill)


--- On Sat, 3/3/12, Douglas Laycock  wrote:

From: Douglas Laycock 
Subject: RE: Basketball tournaments on the Sabbath
To: "'Law & Religion issues for Law Academics'" 
Date: Saturday, March 3, 2012, 8:26 AM

This morning's story in the Times confirms the unreconstructed Texans
theory. It looks like the conservative evangelical schools have taken
control of this organization, and tolerance of diversity has never been one
of their strengths.

Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA  22903
 434-243-8546


-Original Message-
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Richard D. Friedman
Sent: Saturday, March 03, 2012 12:19 AM
To: Law & Religion issues for Law Academics
Subject: Re: Basketball tournaments on the Sabbath

The TAPPS website, http://www.tapps.net/, indicates that they agreed to let
Beren play when presented with the papers, before they were actually filed.
But the lawyer who signed the complaint -- which included the application
for the TRO -- confirmed to me that the papers were indeed filed.  I get the
impression that TAPPS, while saying adamantly that they were going to adhere
to their schedule, decided they would fold quickly if sued; I think someone
there finally realized that they were not casting themselves in a favorable
light.

Rich Friedman

At 07:19 PM 3/2/2012, you wrote:
>It would look less like a discrimination claim and more like an
>exemption claim. Judges tend to naively assume that the calendar is a
>neutral set of rules, and the sharply different treatment of Sunday and
>Saturday here would make it more obvious than usual that that just
>isn't true.
>
>By the way, I was confused about chronology. The complaint was filed,
>and TAPPS caved, yesterday. There was another story in the Times this
>morning. Haven't heard the score of the game.
>
>On Fri, 2 Mar 2012 23:11:44 +
>  "Finkelman, Paul
> "   
wrote:
> >I am guessing that the leaders of this organization never dreamed
> of a Jewish basketball team going to the finals.  They never heard of
> Dolph Shayes or Nancy Lieberman.
> >
> >
> >
> >More seriously:  If the organization (which includes many
> Christian schools) played games on Sundays, would the Hebrew high
> school be in a weaker position?
> >
> >
> >
> >
> >
> >*
> >Paul Finkelman, Ph.D.
> >President William McKinley Distinguished Professor of Law Albany Law
> >School
> >80 New Scotland Avenue
> >Albany, NY 12208
> >
> >518-445-3386 (p)
> >518-445-3363 (f)
> >
> >paul.finkel...@albanylaw.edu
> >www.paulfinkelman.com
> >*
> >
> >
> >From: religionlaw-boun...@lists.ucla.edu
> [religionlaw-boun...@lists.ucla.edu] on behalf of Ira Lupu
> [icl...@law.gwu.edu]
> >Sent: Friday, March 02, 2012 6:03 PM
> >To: Law & Religion issues for Law Academics
> >Subject: Re: Basketball tournaments on the Sabbath
> >
> >Today's first semi-final: Houston Beren 58, Dallas Covenant 46 --
> final is after sundown tomorrow evening.
> >
> >Thanks, Doug.
> >
> >On Fri, Mar 2, 2012 at 5:48 PM, Ed Darrell
> mailto:edarr...@sbcglobal.net>> wrote:
> >If your position is utterly untenable as a matter of public
> relations, it may not matter that the other side's state action theory
> is very weak. But they had to file the lawsuit before common sense
> could prevail.
> >
> >One more demonstration of the value of lawyers.  

RE: Basketball tournaments on the Sabbath

[Scarberry, Mark]

It seems clear that the TAPP leaders should have agreed to this scheduling 
change when the problem was brought to their attention.

I wonder what the common sense solution is for football season, during which 
the different levels of football may create a problem. High school games 
typically are scheduled for Friday nights, while college games typically are 
scheduled for Saturday afternoons and evenings, and NFL games typically are 
scheduled for Sundays. (I know, I know, there is “Monday Night Football,” which 
usually is on Monday nights but which at one time also was occasionally on 
Thursday nights and called if I remember correctly, “Monday Night Football on 
Thursday Night.”) No one wants to compete with another level, and I doubt that 
high schools want to schedule games on school nights.

With regard to the state action issue, lots of NFL games (and other 
professional sporting events) are played on Sundays in publicly owned 
facilities.

I suppose list members will all remember a popular movie that explored 
Christian Sunday Sabbath observance (and also upper-crust British 
anti-Semitism): Chariots of Fire, set in a time when some Christians took 
Sabbath observance a lot more seriously than most do now. Perhaps that last 
comment is too harsh in suggesting that Christians do not practice what they 
believe their faith requires. Chariots of Fire was set in a time when more 
Christians thought a particular kind of Sunday Sabbath observance was rigidly 
required; now many sincere and devout Christians who worship on Sundays do not 
think such rigid observance is required by their faith. Cf. Tim Tebow.

A Jerusalem Post story on the Beren Academy/TAPP matter says that the court 
issued a TRO before TAPP agreed to change the schedule. The story also says 
that TAPP previously changed the schedule for a game to allow a Seventh-Day 
Adventist school to compete.

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Finkelman, Paul 

Sent: Saturday, March 03, 2012 12:32 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Basketball tournaments on the Sabbath

The "common sense" is what is often lacking and with a sense of fairness and 
toleration.  Apparently for the leaders of the TAPP "common sense" means 
everyone is a Christian and all people have a Sunday sabbath.  The lawyers 
serve as educator to teach common sense and respect for other religions.

Connected by DROID on Verizon Wireless


-Original message-
From: Alan Armstrong 
mailto:alanarmstrong@verizon.net>>
To: Law & Religion issues for Law Academics 
mailto:religionlaw@lists.ucla.edu>>
Sent: Sat, Mar 3, 2012 19:56:56 GMT+00:00
Subject: Re: Basketball tournaments on the Sabbath
My understanding is that Jewish and 7th day adventists consider sabbath as 
going from sundown on Friday to sundown on Saturday. I do not know of any 
christian denominations that use sundown Saturday to sundown on Sunday as the 
Lord's day.Therefore a Saturday night game should be acceptable to all.

A little thought and common sense and we would need fewer lawyers.

Alan

Law Office of Alan Leigh Armstrong
Office 18652 Florida St., Suite 225
Huntington Beach CA 92648-6006
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On Mar 2, 2012, at 11:48 AM, Douglas Laycock wrote:


Some of you may have seen the story in the Times the other day about the Beren 
Hebrew Academy in Houston, whose basketball team has reached the state 
semi-finals of the Texas Association of Private and Parochial Schools 
tournament. The semifinal game was scheduled for tonight; the Academy is 
Orthodox and observant, and could not play.  The other school was willing to 
reschedule, but the TAPPS Board voted 8-0 not to allow that. Most TAPPS members 
are church affiliated, and as a matter of policy, it never schedules games on 
Sunday.

Beren parents and students filed a lawsuit this morning in the Northern 
District of Texas, alleging unconstitutional religious discrimination, Texas 
RFRA, and breach of contract (based on a provision in the TAPPS bylaws). The 
complaint’s state action theory was that the game was scheduled to be played in 
a public school gym, which is surely not enough. The contract claim looked 
stronger, judging only by the complaint.

Richard Friedman at Michigan tells me that TAPPS caved as soon as the complaint 
was filed, and that the game will begin imminently and will be completed before 
sunset.  If your position is utterly untenable as a matter of public relations, 
it may not matter that the other side’s state action theory is very weak. But 
they had to f

Re: Basketball tournaments on the Sabbath

[Rick Duncan]

This was clearly the right thing to do. An association of private religious 
schools should be eager to recognize religious liberty for everyone.

Prof. Rick Duncan (Nebraska Law)

See my recent paper on The Tea Party, federalism, and liberty at:
   http://ssrn.com/abstract=1984699


"And against the constitution I have never raised a storm,It's the scoundrels 
who've corrupted it that I want to reform" --Dick Gaughan (from the song, 
Thomas Muir of Huntershill)

--- On Fri, 3/2/12, Richard D. Friedman  wrote:

From: Richard D. Friedman 
Subject: Re: Basketball tournaments on the
 Sabbath
To: "Law & Religion issues for Law Academics" 
Date: Friday, March 2, 2012, 9:19 PM

The TAPPS website, http://www.tapps.net/, indicates that they agreed to let 
Beren play when presented with the papers, before they were actually filed.  
But the lawyer who signed the complaint -- which included the application for 
the TRO -- confirmed to me that the papers were indeed filed.  I get the 
impression that TAPPS, while saying adamantly that they were going to adhere to 
their schedule, decided they would fold quickly if sued; I think someone there 
finally realized that they were not casting themselves in a favorable light.

Rich Friedman

At 07:19 PM 3/2/2012, you wrote:
> It would look less like a discrimination claim and more like an exemption 
> claim. Judges tend to naively assume that the calendar
 is a neutral set of rules, and the sharply different treatment of Sunday and 
Saturday here would make it more obvious than usual that that just isn't true.
> 
> By the way, I was confused about chronology. The complaint was filed, and 
> TAPPS caved, yesterday. There was another story in the Times this morning. 
> Haven't heard the score of the game.
> 
> On Fri, 2 Mar 2012 23:11:44 +
>  "Finkelman, Paul "       
> wrote:
> >I am guessing that the leaders of this organization never dreamed of a 
> >Jewish basketball team going to the finals.  They never heard of Dolph 
> >Shayes or Nancy Lieberman.
>
 >
> >
> >
> >More seriously:  If the organization (which includes many Christian schools) 
> >played games on Sundays, would the Hebrew high school be in a weaker 
> >position?
> >
> >
> >
> >
> >
> >*
> >Paul Finkelman, Ph.D.
> >President William McKinley Distinguished Professor of Law
> >Albany Law School
> >80 New Scotland Avenue
> >Albany, NY 12208
> >
> >518-445-3386 (p)
> >518-445-3363 (f)
> >
> >paul.finkel...@albanylaw.edu
> >www.paulfinkelman.com
> >*
> >
> >
> >From: religionlaw-boun...@lists.ucla.edu 
> >[religionlaw-boun...@lists.ucla.edu] on behalf of Ira Lupu 
> >[icl...@law.gwu.edu]
> >Sent: Friday, March 02, 2012 6:03 PM
> >To: Law & Religion issues for Law Academics
> >Subject: Re: Basketball tournaments on the Sabbath
> >
> >Today's first semi-final: Houston Beren 58, Dallas Covenant 46 -- final is 
> >after sundown tomorrow
 evening.
> >
> >Thanks, Doug.
> >
> >On Fri, Mar 2, 2012 at 5:48 PM, Ed Darrell 
> >mailto:edarr...@sbcglobal.net>> wrote:
> >If your position is utterly untenable as a matter of public relations, it 
> >may not matter that the other side's state action theory is very weak. But 
> >they had to file the lawsuit before common sense could prevail.
> >
> >One more demonstration of the value of lawyers.  Good news that they've 
> >scheduled the game to fit it in.  Good, good news.
> >
> >Ed Darrell
> >Dallas
> >
> >
> >From: Alan Brownstein 
> >mailto:aebrownst...@ucdavis.edu>>
> >To: Law & Religion issues for Law Academics 
> >mailto:religionlaw@lists.ucla.edu>>
> >Sent: Fri, March 2, 2012 3:35:05 PM
> >Subject: RE: Basketball tournaments on the Sabbath
> >
> >A somewhat  similar lawsuit was litigated by students attending the Portland 
> >Adventist Academy (and their parents) against the Oregon State Activities 
> >Association which is a state actor. After 8 years of litigation, the 
> >students succeeded in their state anti-discrimination
 claims. See Nakashima v. Bd. Of Educ., 334 Or. 487 (2008)
> >
> >Alan Brownstein
> >
> >
> >
> >From: 
> >religionlaw-boun...@lists.ucla.edu
> > 
> >[mailto:religionlaw-boun...@lists.ucla.edu]
> > On Behalf Of Douglas Laycock
> >Sent: Friday, March 02, 2012 11:48 AM
> >To: 'Law & Religion issues for Law Academics'
> >Subject:
 Basketball tournaments on the Sabbath
> >
> >Some of you may have seen the story in the Times the other day about the 
> >Beren Hebrew Academy in Houston, whose basketball team has reached the state 
> >semi-finals of the Texas Association of Private and Parochial Schools 
> >tournament. The semifinal game was scheduled for tonight; the Academy is 
> >Orthodox and observant, and could not play.  The other school was w