"Once it took the step of opening play to non-Christians"
dlaycock at virginia.edu
Thu Mar 8 09:06:05 PST 2012
For what it's worth, TAPPS does not define itself as a sectarian
organization. See its constitution here:
It's definition of private and parochial schools includes any school not
principally supported by a government. Its stated purposes are all about
"academic, athletic, and fine arts programs," and not about religion.
It obviously could change its purpose, and some of those in its governing
structure seem to have a different sense of the organization than what is
written down in its bylaws. But the nature of its activities, its governing
documents, and the way it has held itself out all suggest an organization
for interscholastic competition among all private schools, with religious
observances left to the individual members.
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Paul Horwitz
Sent: Thursday, March 08, 2012 11:45 AM
To: Law & Religion issues for Law Academics
Subject: RE: "Once it took the step of opening play to non-Christians"
I won't extend the conversation too much, but I appreciate the points Eugene
makes. I'm not sure they change my mind entirely, although I do very much
think one should be sensitive to these counter-arguments. I suppose the
reason I take the position I do, notwithstanding what Eugene says about
incentives for and against ecumenicalism, is that I don't treat
ecumenicalism as an unqualified good. It depends for me in part on the
group's own sense of its mission and what it demands. The more ecumenical
its own sense of itself is, the more its ecumenicalism suggests a need to
try and accommodate others, at least in the demographic universe it is
seeking to inhabit; the more sectarian its sense of itself, the less I think
it should be obliged to make shift to meet others' needs. That it might face
public criticism is a possibility, but, if it was open about wanting to live
out a specifically sectarian mission, I would probably not be among the
critics. I should add that I'm speaking more in civic terms than legal ones.
I tend to think that 1) the Court was right in both BSA and Hosanna-Tabor,
2) that doesn't mean that those groups should be immune from public
criticism for their views and decisions; sometimes they will hold fast
despite that criticism, and sometimes their own sense of mission may change
as a result of both public criticism and internal debate; and 3) in any
event, groups that are or ought to be entitled to some legal protection qua
groups should engage in serious reflection about their mission and what it
requires, even if the courts themselves are obliged to defer to them for the
most part about that mission.
Best to all,
From: VOLOKH at law.ucla.edu
To: religionlaw at lists.ucla.edu
Date: Sun, 4 Mar 2012 16:26:06 -0800
Subject: "Once it took the step of opening play to non-Christians"
I think I understand Paul's point, and the arguments in favor
it, but I wonder whether it might get things backward. TAPPS could likely
have focused itself on Christian private schools with little difficulty for
it. (It might have benefited from including secular schools, but it likely
could have survived just as well limited to Christian schools.) On the
other hand, my sense is that in such situations it's a great benefit to
minority schools - both secular schools and especially Jewish schools - to
be able to join such an association, since otherwise there might be very few
schools for them to play against. In many places, an all-Orthodox-Jewish
league would have very few teams, and very long travel times to games.
So TAPPS generally did Jewish schools a good turn by letting
them participate. And if it hadn't let them participate, I suspect many
would have faulted them for being unfairly exclusionary, with the argument
being "What's it to you that the school is Jewish?" But now TAPPS is being
told that by being somewhat more open, it now incurs this extra obligation.
That strikes me as both creating perverse incentives, and being a poor
reward for TAPPS' moderate ecumenicalism, because it demands that this
moderate ecumenicalism lead to considerably more demanding ecumenicalism.
As to the guest/host analogy, I would think that this too cuts
the opposite direction at least as much as in the direction suggested below
(and perhaps more). If I invite someone to my home, or into my private
association, I surely would feel some impulse to accommodate him; if someone
comes for dinner but says that he can't eat pork (and doesn't otherwise
demand a kosher kitchen), I'll probably try to give him a non-pork option
even if the main course is ham. But I would hope that he would feel an even
stronger impulse not to reward my hospitality with excessive demands, or
with repeating his demands after I say no (even if I'm being not as
hospitable as I might be in saying so) - and I would certainly hope that he
wouldn't reward my hospitality with a lawsuit.
Paul Horwitz writes:
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.
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