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Theleekycauldron/Menora v. Illinois High School Association
CourtUnited States Court of Appeals for the Seventh Circuit
Full case name Moshe Menora et al. v. Illinois High School Association
DecidedJune 30, 1982 (1982-06-30)
Court membership
Judges sitting
Case opinions
MajorityPosner, joined by Eschbach
DissentCudahy

Menora v. Illinois High School Association, 683 F.2d 1030 (7th Cir. 1982), is a case decided by the United States Court of Appeals for the Seventh Circuit blah blah blah

Background

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Case

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According to halakha, the body of Jewish law, Jewish men are required to wear a head-covering when they pray or when they say a blessing over food. The head-covering commonly worn by Jewish men is known as a kippah (pl. kippot), but no law requires that the head-covering be a kippah. Throughout the early 20th century, religiously observant Jewish men in America usually only wore a kippah when the law required, but by the 1950s and '60s, the kippah had become a more widespread religious symbol, and they began to wear the distinctive head-coverings whenever possible, including in public.[1] The shift has been attributed to multiple causes, but the change itself signaled that Jews were adopting a more religious lifestyle and doing so openly, combining their Jewish and American identities. Some Orthodox Jewish schools shifted with the culture, requiring as an interpretation of halakha that students wear kippot as often as possible.[2]

In February 1981, two rival Orthodox Jewish schools in Chicagoland, Ida Crown Jewish Academy and Yeshiva High School,[a] were slated to compete in the Illinois high school men's basketball tournament; it would be the Yeshiva's first time competing in the tournament, having only been a conference member for a few years.[5] The tournament was governed by the Illinois High School Association (IHSA), a private organization that regulates sporting competition between all high schools in the U.S. state of Illinois. Nearly all high schools in the state, whether public or private, are members.[6] For safety reasons, IHSA rules prohibit headgear from being worn on the court with a few limited exceptions.[7][8] Many other state leagues had the same rule, since it was derived from a model code published by the National Federation of State High School Associations (NFSH).[9] However, the students had been wearing kippot while playing basketball for years, fastening them with bobby pins[10] – the two schools played a cumulative total of 1,300 basketball games in the IHSA, all with kippot.[11]

As the tournament approached, the IHSA held (supported by an NFHS interpretation) that kippot were barred by the rules and that players could not wear them, despite lobbying from people associated with the Ida Crown and the Yeshiva that kippot were entirely safe; the Yeshiva's first opponent, the top-seeded Harvard High School, also had no issue with students competing with kippot. Unwilling to participate under these conditions, students from the two Jewish schools (along with their parents and the schools themselves[12]) sued the IHSA in the U.S. District Court for the Northern District of Illinois, claiming that their freedom of religion was being violated.[7]

  • do we wanna cover the barrettes somewhere

Free Exercise Clause

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The Free Exercise Clause of the First Amendment to the United States Constitution guarantees that "Congress shall make no law ... prohibiting the free exercise [of religion]". In Cantwell v. Connecticut (1940), the Supreme Court ruled that the text applies to the state governments as well under the Due Process Clause of the Fourteenth Amendment.[13][14] For much of the Supreme Court's history, it held that the government's interests justified restricting the freedom of religion, but that a law restricting the freedom of religion could still be invalidated if violated both freedom of religion and some other constitutional right, like freedom of speech. That changed with Sherbert v. Verner (1963), in which the Court laid out a balancing test based solely on the Free Exercise Clause. To justify impeding the freedom of religion, the government would have to show that it had a compelling reason to do so, that the law it was enforcing was concretely connected to that reason, and that there was no less intrusive way to achieve its interests.[15]

Sherbert marked a significant expansion of the Free Exercise Clause's scope and power, and a turning point that was followed by several more decisions expanding religious liberty. In Wisconsin v. Yoder (1972), the Court held that "only [government] interests of the highest order ... can over-balance legitimate claims to the free exercise of religion", and applied the Free Exercise Clause to government-run schools. In Thomas v. Review Board (1981), the Court reiterated the balancing test created in Sherbert and held that a person's interpretation of their own religious obligations is protected under the Free Exercise Clause even if that interpretation is not widely shared by other adherents to the same religion.[16]

However, the Sherbert test leaves open several questions, like whether and how rigorously to question the sincerity of a plaintiff's beliefs, or whether factual evidence should be required to demonstrate that a law actually succeeds at furthering the government's interest. Lower courts split on how to handle those questions, creating an inconsistent overall approach.[17] Some interested in alternatives to the Sherbert test argued for adapting a method developed by Professor Brainerd Currie for other areas of law, intended to resolve conflicts of laws. Called the "false conflict" approach, Currie advocated for trying to resolve conflicts of laws by rigorously defining the purposes and interests behind each law; in some cases, Currie argued, laying out the competing interests might reveal that there actually is no conflict between them, or that an approach can be found that easily satisfies both. Some have argued for extending this approach to Free Exercise cases.[18]

Court proceedings

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District court

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Judge Milton Shadur in 1980

The students, represented by attorneys for the American Jewish Congress,[19] asked for an injunction and declaratory judgment allowing them to compete with their kippot on. They contended that wearing a kippah was required by their faith, a position the IHSA did not dispute,[20] and argued that the IHSA's ruling improperly forced them to compromise either their religious adherence or tournament participation. They also disputed the effectiveness of the ruling, arguing that wearing kippot did not pose safety risks and that the IHSA's ruling was therefore both unnecessary and discriminatory. The IHSA defended its holding as a reasonable safety measure, arguing that the possibility of a kippah falling off a player's head and causing another player to slip necessitated the ban.[21][22] They also argued that, as a private organization, they should not be bound by First Amendment restrictions.[8][23]

The case was first heard by Judge Milton Shadur in the District Court for Northern District of Illinois, who quickly granted a temporary injunction allowing the students to compete in the upcoming tournament on February 23. The judge promised both sides that he would hold a speedy hearing if the teams advanced in the playoffs, but both teams were knocked out in the first round: the Yeshiva was routed by Harvard High School, 99–54, and Ida Crown lost to St. Gregory the Great High School, 79–51.[24][25]

Following the injunction, Rabbi Oscar Z. Fasman of the Yeshiva lobbied the IHSA to add a permanent exception to their rule, citing the religious significance of kippot to Jews. This was unsuccessful, and the IHSA in fact strengthened their rule by removing some previously available exceptions. The IHSA also asked Shadur to recuse himself, citing his Judaism and a previous connection to the American Jewish Congress; he refused, viewing both the request and the IHSA's rule change negatively.[26][12]

In November 1981, the district court ruled in favor of the students, holding that the IHSA violated their First Amendment rights. Shadur ruled that the IHSA was bound by the First Amendment despite its status as a private organization; the majority of its members were public schools and no other statewide basketball league existed in Illinois.[8][23] He stressed the religious importance of the kippah to the Jewish players, writing that their beliefs "stem from the ancient Talmud".[23] Shadur concluded that the IHSA was hindering the student's freedom of religion by forcing them to abstain from playing basketball for doing so, and in applying the Sherbert test, he found that the safety risks posed by kippot were "totally speculative" and thus that the IHSA did not have a compelling state interest in regulating them.[23][27] The IHSA appealed the ruling to the Court of Appeals for the Seventh Circuit.[19]

Appeals court

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Judge Richard Posner in 2018

In June 1982, the Seventh Circuit Court of Appeals vacated the district court's judgement in a 2–1 decision,[28] holding that the Court did not need to apply the Sherbert test because no conflict actually existed between the parties. Judge Richard Posner, writing for the majority, took the false conflict approach and first defined the interests of the parties: the IHSA's interest was in maximizing player safety, and the students' interest, he said, was the opportunity to play basketball in accordance with their religious beliefs. He concluded that the IHSA's interest in safety was reasonable and that, while the players' religious interests were also valid, they were only required by their religion to wear a head-covering; choosing a kippah, he said, was a matter of custom.

Posner, reasoning that the court did not need to decide which interest was more important if an approach could be found that satisfied both parties, held that the students could satisfy the IHSA's safety interest and maintain their own religious beliefs by designing a head-covering with less risk of falling off of their heads during play. Without that step, he ruled, the plaintiffs had not actually proven that the IHSA was infringing their First Amendment rights. He remarked for the Court that "we put the burden of proposing an alternative, more secure method of covering the head on the plaintiffs rather than on the defendants because the plaintiffs know so much about Jewish law"; however, he warned, if the students successfully designed a more secure head-covering and the IHSA still refused to budge, the IHSA would be standing on "constitutional quicksand". (primarily Feuerschwenger and Carpenter. quote decision)

Judge Richard Dickson Cudahy wrote a solo dissent that mostly agreed with the district court's analysis, arguing that the majority opinion made a mistake by putting the burden on the students rather than the IHSA. He sided with the district court's position that the ISHA's safety concerns were only hypothetical, and opposed the court's remedy because he felt it should have asked the IHSA to revise its rules instead of asking the students to design a new head-covering.

  • . "By putting the plaintiffs to a choice between 'the exercise of a first amendment right and participation in an otherwise public program,' IHSA's no-headwear rule has imposed a significant, albeit indirect, burden on religion." Id. at 1037 (Cudahy, J., dissenting) (quoting, in part, Thomas, 450 U.S. at 716).


The Seventh Circuit remanded the case back to the district court.[citation needed] On January 17, 1983, the Supreme Court voted against hearing the case, with Justices Harry Blackmun and Thurgood Marshall dissenting.[29]

Return to the district court

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By July, Judge Shadur declared the case resolved; the IHSA agreed to allow players to wear kippot with sewn-in metal clips that attach to their heads.[30]

Reaction, analysis, and impact

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As of 2013, Menora v. Illinois High School Association is the only case heard in a federal appellate court on the topic of religious headwear in schools.[31]

Legal scholars reviewing Menora largely aligned with the district court's approach under the Sherbert test, rather than the appeals court's false-conflict method. Scholars particularly criticized Posner's assertion that the students were being denied the right to play basketball, instead of the right to follow their religion while playing basketball.

The Supreme Court weakened the Sherbert test in 1990, ruling in Employment Division v. Smith that the test does not apply to generally applicable laws that do not single out religious conduct.[32] Scott Idleman wrote in the Marquette Sports Law Review that Smith would most likely have undercut Sherbert's applicability to the case; however, he also argued that since public headwear is expressive conduct, the plaintiffs could still have paired their freedom of religion claim with a freedom of speech claim under pre-Sherbert case law. If that failed, the students would have had to show that the headgear ban failed rational basis review, which Idleman wrote would be "a difficult task indeed".[33]

Notes and references

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Notes

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  1. ^ Yeshiva High School was renamed "Fasman Yeshiva High School" in 1981 after Rabbi Oscar Z. Fasman; it is a division of Hebrew Theological College in Skokie, Illinois,[3] the named plaintiff along with Ida Crown.[4] Chicago Tribune 1981 and Eleff 2020 both refer to the school as "Yeshiva High School"; this article retains that usage for consistency throughout.

Citations

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  1. ^ Eleff 2020, PDF pp. 79–81, 97; Feuerschwenger 1983, pp. 446, fn. 80.
  2. ^ Eleff 2020, PDF pp. 82–83.
  3. ^ Hebrew Theological College.
  4. ^ Menora at 1030.
  5. ^ Eleff 2020, PDF pp. 79, 90.
  6. ^ Feuerschwenger 1983, p. 444.
  7. ^ a b Eleff 2020, PDF pp. 90–91.
  8. ^ a b c Nemani 2013, p. 67.
  9. ^ Hensley 2024, p. 36.
  10. ^ Carpenter 1987–1988, p. 610.
  11. ^ Feuerschwenger 1983, p. 450.
  12. ^ a b Chicago Tribune 1981.
  13. ^ Mills 1983, pp. 1489, fn. 16. Quoting U.S. Const. amend. I.
  14. ^ Cantwell v. Connecticut, 310 U.S. 296 (1940).
  15. ^ Feuerschwenger 1983, p. 437–438, fn. 22.
  16. ^ Feuerschwenger 1983, pp. 438–439; Mills 1983, pp. 1490–1491. Quoting Yoder at 215.
  17. ^ Feuerschwenger 1983, pp. 441–442.
  18. ^ Feuerschwenger 1983, p. 443; Carpenter 1987–1988, fn. 65.
  19. ^ a b Wisconsin Jewish Chronicle 1982.
  20. ^ Eleff 2020, PDF pp. 84, 91.
  21. ^ Eleff 2020, PDF p. 92.
  22. ^ Feuerschwenger 1983, pp. 444–445.
  23. ^ a b c d Eleff 2020, PDF p. 95.
  24. ^ Eleff 2020, PDF pp. 92–93.
  25. ^ Evansville Press 1981.
  26. ^ Eleff 2020, PDF pp. 93–95.
  27. ^ Feuerschwenger 1983, p. 445.
  28. ^ Mills 1983, p. 1487; Eleff 2020, PDF p. 96.
  29. ^ The Dispatch 1983.
  30. ^ Los Angeles Times 1983.
  31. ^ Nemani 2013, fn. 101.
  32. ^ Idleman 2001, pp. 306–307.
  33. ^ Idleman 2001, pp. 334–335.

Academic sources

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News sources

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Other sources

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  • Text of Menora v. Illinois High School Association, 527 F. Supp. 637 (N.D. Ill. 1981) is available from: Justia
  • Text of Menora v. Illinois High School Association, 683 F.2d 1030 (7th Cir. 1982) is available from: Justia

Category:United States Court of Appeals for the Seventh Circuit cases Category:1982 in United States case law Category:United States free exercise of religion case law Category:Sports in Illinois

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