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
>
>
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