Law.com - Religious Accommodation Dispute Over Mock Trial ScheduleResolved

[Brad Pardee]

In reading about this dispute, it seems that this entire situation exposes 
the fatal flaw in the thinking in Employment Division v. Smith.  It's clear 
that the rules regarding the mock trial schedule are generally applicable 
and neutral on their face.  However, the end result was discriminatory.  The 
Jewish students' choices were a) choose a different religion that wouldn't 
place the same requirements on them, b) violate the tenets of their faith, 
or c) forfeit the competition.  The National High School Mock Trial 
Championship's board could have chosen to accomodate their faith.  Their 
decision not to accomodate, although not intended to be discriminatory, had 
nonetheless an unmistakably discriminatory effect.

They were, however, using the same principles that undergird Smith.  Did the 
schedule cover all the competing teams?  Yes, it was generally applicable. 
Did they single out the Jewish faith (or any other faith) for differing 
treatment?  No, it was neutral on its face.  Prior to having their hand 
forced by the judge, were they a governing body who had the opportunity to 
choose to accomodate and chose not to?  Yes.

Now let's take what I wrote above and recast it according to Employment 
Division v. Smith.

Smith's choices were a) choose a different religion that wouldn't place the 
same requirements on him, b) violate the tenets of his faith, or c) forfeit 
his unemployment benefits.  The Oregon state legislature could have chosen 
to accomodate his faith.  Their decision not to accomodate, although not 
intended to be discriminatory, had nonetheless an unmistakably 
discriminatory effect.

This is what the First Amendment, as our guarantor of religious freedom, is 
suppose to prevent.  The fact that the logic of Employment Division v. Smith 
precludes it from offering the protection it is supposed to speaks volumes. 
The situation with the mock trial competition is helpful in exposing that 
weakness in the real world.

Brad Pardee