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,
Paul
From: vol...@law.ucla.edu
To: religionlaw@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. Eugene 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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