RE: Basketball tournaments on the Sabbath
Rick, Smith did not gut free exercise for any one. Rather, it recognized that equality, rather than privilege, is the core American value. To accommodate one group (or person) typically results in inconveniencing others. The proper solution under the First Amendment, it seems to me, is to schedule ALL basketball games without regard to religion. In such a regime, government neither advances religion nor is hostile towards it. Reynolds is an interesting situation, particularly in view of individual liberty in Lawrence v. Texas, the gay marriage movement, Loving v. Virginia, Griswold v. Connecticut, etc. However, rather than accommodating Mormons under free exercise, any consenting adults should be able to marry under the equal protection clause. Whether tax and employee benefits extend to all spouses or are pro rated is a subject for another day. Bob Robert V. Ritter Jefferson Madison Center for Religious Liberty Falls Church, VA On March 3, 2012 at 5:46 PM Rick Duncan nebraskalawp...@yahoo.com wrote: 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 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 dlayc...@virginia.edu wrote: From: Douglas Laycock dlayc...@virginia.edu 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 /mc/compose?to=religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu /mc/compose?to=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/ 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 paul.finkel...@albanylaw.edu /mc/compose?to=paul.finkel...@albanylaw.edu paul.finkel...@albanylaw.edu /mc/compose?to=paul.finkel...@albanylaw.edu 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
Re: Basketball tournaments on the Sabbath
So only those practices that are mandatory are relevant? Isn't that a centrality requirement? Marci On Mar 3, 2012, at 4:50 PM, Alan Armstrong alanarmstrong@verizon.net wrote: 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 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 ___ 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. ___ 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. ___ 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
Frankly, common sense or at least a full evaluation of all of the non religious interests seems lacking on the side of those claims accommodation. On Mar 3, 2012, at 6:41 PM, Volokh, Eugene vol...@law.ucla.edu 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, especially for what could be a once-in-a-lifetime event for the kids in whose interest the league is supposed to be operating. Likewise, respect for others sometimes includes changing your plans for others – and sometimes not insisting that others change their plans for you. On balance, I’m pleased with TAPPS’ ultimate decision to accommodate the Jewish team, but I’m not sure that “common sense” and “respect” by themselves resolve this question. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Finkelman, Paul paul.finkel...@albanylaw.edu 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 alanarmstrong@verizon.net To: Law Religion issues for Law Academics 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 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 = div= ___ 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
RE: Basketball tournaments on the Sabbath
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.edumailto:paul.finkel...@albanylaw.edu www.paulfinkelman.comhttp://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 edarr...@sbcglobal.netmailto: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 aebrownst...@ucdavis.edumailto:aebrownst...@ucdavis.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto: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.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edumailto: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 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 434-243-8546tel:434-243-8546 ___ To post, send message to Religionlaw@lists.ucla.edumailto: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. -- Ira C. Lupu F. Elwood Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe
RE: Basketball tournaments on the Sabbath
I agree with Paul's point, and realize that I should make my statement more precise. Common sense tells us there is real value to following rules with a minimum number of exceptions, and especially exceptions that are limited to truly extraordinary situations. Indeed, if a tornado knocks out the arena where a game is to be played, you can't very well play the game that day. Likewise, if one of the tournament teams' buses crashes the day before, and most of the team is killed, it makes sense that all the other teams might postpone their games out of grief and respect for the dead. But common sense tells us that there is still value for reserving exceptions for such extraordinary cases. Now, as I said, there is also value for allowing exceptions even outside extraordinary cases; it may well be that an exception ought to be made. My point -- on which Paul and I agree -- is simply that common sense doesn't generally resolve this sort of tension. Eugene From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul Horwitz [phorw...@hotmail.com] Sent: Saturday, March 03, 2012 7:42 PM To: Law Religion issues for Law Academics Subject: Re: Basketball tournaments on the Sabbath 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 vol...@law.ucla.edumailto:vol...@law.ucla.edu 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
Re: Basketball tournaments on the Sabbath
There is significant precedent for one-religion sporting events, which I assume everyone agrees is fine.Catholic Leagues exist in numerous cities And the Maccabiah Games feature only Jewish athletes. TAPPs' first mistake appears to have been opening itself up to religious organizations with different religious needs and demands. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY. 10003 (212) 790-0215 On Mar 4, 2012, at 9:51 PM, Paul Horwitz phorw...@hotmail.com wrote: I agree that the word liberty may be problematic here. Of course it depends on the circumstances: some set of facts, or some particular state law regime, might involve a public sports league, or some set of religious rights of non-discrimination in a place of public accommodation. (Although, even if a public accommodation law were involved, that doesn't seem to me, a supporter of BSA v. Dale, to answer the question whether a largely religious sporting association would be obliged to accommodate others.) I didn't do very much research on this, but I didn't immediately spot relevant laws in Texas on this subject, and TAPPS is a private league. So liberty is not the best word here. Pluralism, on the other hand, goes some of the way, given the facts, especially as it relates to the word hospitality, which Eugene uses. Groups might choose to stay small and insular in order to avoid these kinds of scheduling problems and other conflicts. If, on the other hand, they are interested in expanding their reach, for a variety of reasons (among others, pre-collegiate athletics, including interleague exhibition and championship play, is becoming an increasingly profitable and organized activity across the country; the New Yorker recently ran an interesting story on that subject), then they ought to know at some point that doing so will bring them in contact with other religious groups and individuals with other needs. As long as they are interested in hosting such play, they ought to think in a forward-looking and, I hope, accommodating way about these issues, and anticipate them rather than stumble into them. As to the questionnaire to Muslim schools, I honestly don't know enough about the facts to do anything other than wonder what they were thinking. I should add that I'm quoted in yesterday's Times story, and the quote is accurate enough, but in light of this exchange I must emphasize that the primary point I made in talking to the reporter was not one about the law, but about the increasing likelihood that more leagues will deal with more issues of religious conflict or accommodation as they grow larger, the need for those leagues to figure out how much their own sectarianism matters to them and how much having a broader field of members and competitors does, and in either case the need to think through their mission first and act accordingly. Of course there are law-and-religion issues and overtones here, but we are better off thinking through what pluralism demands in any event, whether the law is at issue or not. The answer won't always be that pluralism demands accommodation, at least by private actors; but it may be that private actors of this kind that are interested in interacting with other groups, including inviting other teams with other beliefs to compete in play, are indeed obliged to accommodate, or at least to try to. Best, Paul Horwitz University of Alabama School of Law From: vol...@law.ucla.edu To: religionlaw@lists.ucla.edu Date: Sun, 4 Mar 2012 14:17:32 -0800 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 ___ 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
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 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 ___ 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. ___ 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. ___ 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. ___ 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
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 On Mar 3, 2012, at 10:42 PM, Paul Horwitz phorw...@hotmail.com wrote: 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 vol...@law.ucla.edu 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
Re: Basketball tournaments on the Sabbath
Seventh day Adventists keep Saturday sabbath like Jews do, sundown to sundown. Or did when I counted myself among their numbers 35 years ago. On Mar 4, 2012, at 4:55 AM, Saperstein, David dsaperst...@rac.org wrote: 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 J 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 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 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options
RE: Basketball tournaments on the Sabbath
I agree that the word liberty may be problematic here. Of course it depends on the circumstances: some set of facts, or some particular state law regime, might involve a public sports league, or some set of religious rights of non-discrimination in a place of public accommodation. (Although, even if a public accommodation law were involved, that doesn't seem to me, a supporter of BSA v. Dale, to answer the question whether a largely religious sporting association would be obliged to accommodate others.) I didn't do very much research on this, but I didn't immediately spot relevant laws in Texas on this subject, and TAPPS is a private league. So liberty is not the best word here. Pluralism, on the other hand, goes some of the way, given the facts, especially as it relates to the word hospitality, which Eugene uses. Groups might choose to stay small and insular in order to avoid these kinds of scheduling problems and other conflicts. If, on the other hand, they are interested in expanding their reach, for a variety of reasons (among others, pre-collegiate athletics, including interleague exhibition and championship play, is becoming an increasingly profitable and organized activity across the country; the New Yorker recently ran an interesting story on that subject), then they ought to know at some point that doing so will bring them in contact with other religious groups and individuals with other needs. As long as they are interested in hosting such play, they ought to think in a forward-looking and, I hope, accommodating way about these issues, and anticipate them rather than stumble into them. As to the questionnaire to Muslim schools, I honestly don't know enough about the facts to do anything other than wonder what they were thinking. I should add that I'm quoted in yesterday's Times story, and the quote is accurate enough, but in light of this exchange I must emphasize that the primary point I made in talking to the reporter was not one about the law, but about the increasing likelihood that more leagues will deal with more issues of religious conflict or accommodation as they grow larger, the need for those leagues to figure out how much their own sectarianism matters to them and how much having a broader field of members and competitors does, and in either case the need to think through their mission first and act accordingly. Of course there are law-and-religion issues and overtones here, but we are better off thinking through what pluralism demands in any event, whether the law is at issue or not. The answer won't always be that pluralism demands accommodation, at least by private actors; but it may be that private actors of this kind that are interested in interacting with other groups, including inviting other teams with other beliefs to compete in play, are indeed obliged to accommodate, or at least to try to. Best, Paul HorwitzUniversity of Alabama School of Law From: vol...@law.ucla.edu To: religionlaw@lists.ucla.edu Date: Sun, 4 Mar 2012 14:17:32 -0800 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 ___ 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
Here is a general question to take us back to the bigger picture. What should the rule for sports associations be in the future? Schedule tournaments and finals only Mon through Sunday with attention to the religious schedule? How can you schedule such a tournament in light of the apparently shared assumptions on this listserv that sporting events should be rearranged for the religious practices of particular teams? This is a serious question. I would be interested in serious answers that do not assume discrimination. Thanks---Marci On Mar 3, 2012, at 11:49 AM, Douglas Laycock 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 -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 paul.finkel...@albanylaw.edu paul.finkel...@albanylaw.edu 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.edumailto:paul.finkel...@albanylaw.edu www.paulfinkelman.comhttp://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
Re: Basketball tournaments on the Sabbath
I don't have access to the cite, but some time in the 1980's the Jersey Supreme Court decided a case called playcrafters upholding against an establishment clause challenge a school rule banning non sport extra curricular activities from(as I recall)Friday night through Sunday noon. the rationale was to allow students to avoid religious conflicts. Marc Stern. . - Original Message - From: Marci Hamilton [mailto:hamilto...@aol.com] Sent: Saturday, March 03, 2012 12:25 PM To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Cc: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Subject: Re: Basketball tournaments on the Sabbath Here is a general question to take us back to the bigger picture. What should the rule for sports associations be in the future? Schedule tournaments and finals only Mon through Sunday with attention to the religious schedule? How can you schedule such a tournament in light of the apparently shared assumptions on this listserv that sporting events should be rearranged for the religious practices of particular teams? This is a serious question. I would be interested in serious answers that do not assume discrimination. Thanks---Marci On Mar 3, 2012, at 11:49 AM, Douglas Laycock 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 -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 paul.finkel...@albanylaw.edu paul.finkel...@albanylaw.edu 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
Re: Basketball tournaments on the Sabbath
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 rdfrd...@umich.edu wrote: From: Richard D. Friedman rdfrd...@umich.edu Subject: Re: Basketball tournaments on the Sabbath To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu 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 paul.finkel...@albanylaw.edu paul.finkel...@albanylaw.edu 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.edumailto:paul.finkel...@albanylaw.edu www.paulfinkelman.comhttp://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 edarr...@sbcglobal.netmailto: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 aebrownst...@ucdavis.edumailto:aebrownst...@ucdavis.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto: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.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edumailto: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 willing
RE: Basketball tournaments on the Sabbath
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 paul.finkel...@albanylaw.edu 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 alanarmstrong@verizon.netmailto:alanarmstrong@verizon.net To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto: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 Mail 16835 Algonquin St., Suite 454 Huntington Beach CA 92649-3810 714 375 1147 fax 714 782 6007 a...@alanarmstrong.commailto: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
RE: Basketball tournaments on the Sabbath
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 dlayc...@virginia.edu wrote: From: Douglas Laycock dlayc...@virginia.edu 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 -- 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 paul.finkel...@albanylaw.edu paul.finkel...@albanylaw.edu 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.edumailto:paul.finkel...@albanylaw.edu www.paulfinkelman.comhttp://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 edarr...@sbcglobal.netmailto: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
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 alanarmstrong@verizon.net To: Law Religion issues for Law Academics 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 Mail 16835 Algonquin St., Suite 454 Huntington Beach CA 92649-3810 714 375 1147 fax 714 782 6007 a...@alanarmstrong.commailto: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
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 vol...@law.ucla.edu 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, ___ 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
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 nebraskalawp...@yahoo.com 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 rdfrd...@umich.edu wrote: From: Richard D. Friedman rdfrd...@umich.edu Subject: Re: Basketball tournaments on the Sabbath To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu 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 paul.finkel...@albanylaw.edu paul.finkel...@albanylaw.edu 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.edumailto:paul.finkel...@albanylaw.edu www.paulfinkelman.comhttp://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 edarr...@sbcglobal.netmailto: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 aebrownst...@ucdavis.edumailto:aebrownst...@ucdavis.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto: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.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edumailto: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
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 dlayc...@virginia.edu wrote: From: Douglas Laycock dlayc...@virginia.edu 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 -- 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 paul.finkel...@albanylaw.edu paul.finkel...@albanylaw.edu 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.edumailto:paul.finkel...@albanylaw.edu www.paulfinkelman.comhttp://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 edarr...@sbcglobal.netmailto: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 aebrownst...@ucdavis.edumailto:aebrownst...@ucdavis.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Sent: Fri, March 2, 2012 3:35:05 PM
Re: Basketball tournaments on the Sabbath
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 rdfrd...@umich.edu 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 dlayc...@virginia.edu wrote: From: Douglas Laycock dlayc...@virginia.edu 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 -- 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
RE: Basketball tournaments on the Sabbath
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.commailto: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 ___ To post, send message to Religionlaw@lists.ucla.edumailto: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. ___ 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
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.commailto: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 alanarmstrong@verizon.netmailto: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.commailto: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 ___ To post, send message to Religionlaw@lists.ucla.edumailto: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
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 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 ___ 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
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 ___ 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
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 ___ 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. ___ 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
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 paul.finkel...@albanylaw.edu paul.finkel...@albanylaw.edu 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.edumailto:paul.finkel...@albanylaw.edu www.paulfinkelman.comhttp://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 edarr...@sbcglobal.netmailto: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 aebrownst...@ucdavis.edumailto:aebrownst...@ucdavis.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto: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.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edumailto: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 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
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 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 ___ 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
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 paul.finkel...@albanylaw.edu paul.finkel...@albanylaw.edu 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.edumailto:paul.finkel...@albanylaw.edu www.paulfinkelman.comhttp://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 edarr...@sbcglobal.netmailto: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 aebrownst...@ucdavis.edumailto:aebrownst...@ucdavis.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto: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.edumailto:religionlaw-boun...@lists.uc la.edu [mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-bounces@ 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 willing to reschedule, but the TAPPS Board voted 8-0 not to allow that. Most TAPPS members
Re: Basketball tournaments on the Sabbath
Lots of Catholics go to Saturday evening mass. Relevant? On Mar 3, 2012, at 2:55 PM, Alan Armstrong 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 ___ 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. ___ 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. ___ 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
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, especially for what could be a once-in-a-lifetime event for the kids in whose interest the league is supposed to be operating. Likewise, respect for others sometimes includes changing your plans for others – and sometimes not insisting that others change their plans for you. On balance, I’m pleased with TAPPS’ ultimate decision to accommodate the Jewish team, but I’m not sure that “common sense” and “respect” by themselves resolve this question. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Finkelman, Paul paul.finkel...@albanylaw.edu 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 alanarmstrong@verizon.net To: Law Religion issues for Law Academics 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 Mail 16835 Algonquin St., Suite 454 Huntington Beach CA 92649-3810 714 375 1147 fax 714 782 6007 a...@alanarmstrong.commailto: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 = div= ___ 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
If only common sense -- and an accommodating spirit, respect for religious liberty, a tolerance and even appreciation for diversity and pluralism -- of the kind that seems to have won the day with the TAPP, and that most on this list are (rightly) celebrating, were playing a similar role in the halls of the HHS! Here's hoping . . . [insert emoticon here] Best, Rick Richard W. Garnett Professor of Law Associate Dean Notre Dame Law School P.O. Box 780 Notre Dame, IN 46556-0780 574-631-6981 (office) 574-631-4197 (fax) From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Finkelman, Paul paul.finkel...@albanylaw.edu [paul.finkel...@albanylaw.edu] Sent: Saturday, March 03, 2012 3:31 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 alanarmstrong@verizon.net To: Law Religion issues for Law Academics 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 Mail 16835 Algonquin St., Suite 454 Huntington Beach CA 92649-3810 714 375 1147 fax 714 782 6007 a...@alanarmstrong.commailto: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
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.edupaul.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 dlayc...@virginia.edu wrote: From: Douglas Laycock dlayc...@virginia.edu 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 -- 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 paul.finkel...@albanylaw.edu paul.finkel...@albanylaw.edu 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.edumailto:paul.finkel...@albanylaw.edu www.paulfinkelman.comhttp://www.paulfinkelman.com/ * From: religionlaw-boun...@lists.ucla.edu
Re: Basketball tournaments on the Sabbath
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 mailto:paul.finkel...@albanylaw.edupaul.finkel...@albanylaw.edumailto:paul.finkel...@albanylaw.edupaul.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 mailto:nebraskalawp...@yahoo.comnebraskalawp...@yahoo.com To: Law Religion issues for Law Academics mailto:religionlaw@lists.ucla.edureligionlaw@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=1984699http://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 mailto:dlayc...@virginia.edudlayc...@virginia.edu wrote: From: Douglas Laycock mailto:dlayc...@virginia.edudlayc...@virginia.edu Subject: RE: Basketball tournaments on the Sabbath To: 'Law Religion issues for Law Academics' mailto:religionlaw@lists.ucla.edureligionlaw@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/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 paul.finkel...@albanylaw.edu paul.finkel...@albanylaw.edu 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
RE: Basketball tournaments on the Sabbath
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 -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 paul.finkel...@albanylaw.edu paul.finkel...@albanylaw.edu 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.edumailto:paul.finkel...@albanylaw.edu www.paulfinkelman.comhttp://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 edarr...@sbcglobal.netmailto: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 aebrownst...@ucdavis.edumailto:aebrownst...@ucdavis.edu To: Law Religion issues for Law Academics religionlaw
Re: Basketball tournaments on the Sabbath
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 paul.finkel...@albanylaw.edu paul.finkel...@albanylaw.edu 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.edumailto:paul.finkel...@albanylaw.edu www.paulfinkelman.comhttp://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 edarr...@sbcglobal.netmailto: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 aebrownst...@ucdavis.edumailto:aebrownst...@ucdavis.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto: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.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edumailto: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 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 434-243-8546tel:434-243-8546 ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note
Re: Basketball tournaments on the Sabbath
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 aebrownst...@ucdavis.edu To: Law Religion issues for Law Academics 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 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___ 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.
