Law.com - Religious Accommodation Dispute Over Mock Trial ScheduleResolved

[Anthony Decinque]

But as someone who has participated in many mock trial tournaments,
including the National (College) Tournament, the board's decision seems like
the best thing.  Teams travel from around the country to attend the
tournament.  The fund-raising that is required to attend is a massive
undertaking - as captain of my team, I remember spending hours pleading with
the University and with donors.  We put on "exhibition" trials and tried
anything else we could think of to raise money.  High school and college
students also miss school to attend.

To go through that trouble and then find out that, because of the religious
beliefs of another team, your team has to either (1) come back another
weekend, or (2) change hotels/flights and stay an extra day, is
unreasonable.

No one can claim that they were surprised that the the tournament extends to
the sabbath.  That has been the schedule for decades.

I feel sorry for the students that had to forfeit.  I remember facing a team
who told us that they would have to forfeit if they beat us because they
couldn't compete on the sabbath.  (We solved that problem by beating them.)

But I don't think that this has much to do with *Smith* because I think the
decision is correct under a pre-*Smith* regime as well.  If anything, it
supports *Smith* because now we know that a judge is not going to
second-guess the decision of the people who have managed this tournament for
decades.  I'm afraid that your a-b-c formula below is just a fact of life.
We should avoid the situation when we can--the board should change the date
if it's feasible, for example--but the situation can't be avoided without
giving every religious belief veto power.

Anthony



On Sat, May 9, 2009 at 12:08 AM, Brad Pardee <bp51414 at windstream.net> wrote:

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