User:Theleekycauldron/Menora v. Illinois High School Association

According to {{lang|he-LATN|halakha}}, the body of Jewish law, Jewish men are required to wear a head covering known as a {{lang|he-LATN|kippah}} ({{Plural form|{{Lang|he-LATN|kippot}}}}) when they pray or when they say a blessing over food. Throughout the early 20th century, the norm for religiously observant Jewish men in America was to follow the plain language of the law, but by the 1950s and '60s, the {{Lang|he-LATN|kippah}} had become a more widespread religious symbol, and they began to wear the distinctive head coverings whenever possible, including in public.{{sfn|Eleff|2020|loc=PDF pp. 79–81}} 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 under {{lang|he-LATN|halakha}} that students wear {{Lang|he-LATN|kippot}} as often as possible.{{sfn|Eleff|2020|loc=PDF pp. 82–83}}

In February 1981, two rival Orthodox Jewish schools in Chicagoland, Ida Crown Jewish Academy and Yeshiva High School,{{Efn|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,{{sfn|Hebrew Theological College}} the named plaintiff along with Ida Crown.{{Cite court |litigants=Menora v. Illinois High School Association |year=1982 |vol=683|reporter=F.2d |opinion=1030}} {{harvnb|Chicago Tribune|1981}} and {{harvnb|Eleff|2020}} both refer to the school as "Yeshiva High School"; this article retains that usage for consistency throughout.}} 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.{{sfn|Eleff|2020|loc=PDF pp. 79, 90}} 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.{{sfn|Feuerschwenger|1983|p=444}} For safety reasons, IHSA rules prohibit headgear from being worn on the court with a few limited exceptions.{{sfn|Eleff|2020|loc=PDF pp. 90–91}}{{sfn|Nemani|2013|p=67}} As the tournament approached, the IHSA held that {{Lang|he-LATN|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 {{Lang|he-LATN|kippot}} were entirely safe; the Yeshiva's first opponent, the top-seeded Harvard High School, also had no issue with students competing with {{Lang|he-LATN|kippot}}. Unwilling to participate under these conditions, students from the two schools (along with their parents and the schools themselves{{Sfn|Chicago Tribune|1981}}) sued the IHSA in the U.S. District Court for the Northern District of Illinois, claiming that their freedom of religion was being violated.{{sfn|Eleff|2020|loc=PDF pp. 90–91}}

The Free Exercise Clause of the First Amendment to the United States Constitution guarantees the freedom of religion, providing 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.{{sfn|Mills|1983|pp=1489, fn. 16|ps=. Quoting U.S. Const. amend. I.}}{{Cite court|litigants=Cantwell v. Connecticut|vol=310|reporter=U.S.|opinion=296|date=1940}}

For much of the Supreme Court's history, it held that the government's interests justified restricting the freedom of religion, but that a freedom of religion claim could still be valid if paired with a claim under another 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.{{sfn|Feuerschwenger|1983|p=437–438, fn. 22}}

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.{{harvnb|Feuerschwenger|1983|pp=438–439}}; {{harvnb|Mills|1983|pp=1490–1491}}. Quoting {{cite court|litigants=Wisconsin v. Yoder|vol=406|reporter=U.S.|opinion=205|pinpoint=215|year=1972}}

File:Milton Irving Shadur.jpg

The students, represented by attorneys for the American Jewish Congress,{{Sfn|Wisconsin Jewish Chronicle|1982}} sought an injunction and declaratory judgment allowing them to compete with their {{Lang|he-LATN|kippot}} on. They contended that wearing a {{Lang|he-LATN|kippah}} was required by their faith, a position the IHSA did not dispute,{{sfn|Eleff|2020|loc=PDF pp. 84, 91}} 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 {{Lang|he-LATN|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 {{Lang|he-LATN|kippah}} falling off a player's head and causing another player to slip necessitated the ban.{{sfn|Eleff|2020|loc=PDF p. 92}}{{sfn|Feuerschwenger|1983|pp=444–445}} They also argued that, as a private organization, they should not be bound by First Amendment restrictions.{{sfn|Nemani|2013|p=67}}{{sfn|Eleff|2020|loc=PDF p. 95}}

The case was 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: Harvard High School routed the Yeshiva, 99–54, and Ida Crown lost to St. Gregory the Great High School, 79–51.{{sfn|Eleff|2020|loc=PDF pp. 92–93}}{{sfn|Evansville Press|1981}}

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 {{Lang|he-LATN|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.{{sfn|Eleff|2020|loc=PDF pp. 93–95}}{{sfn|Chicago Tribune|1981}}

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.{{sfn|Nemani|2013|p=67}}{{sfn|Eleff|2020|loc=PDF p. 95}} He stressed the religious importance of the {{Lang|he-LATN|kippah}} to the Jewish players, writing that their beliefs "stem from the ancient Talmud".{{sfn|Eleff|2020|loc=PDF p. 95}} 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 {{Lang|he-LATN|kippot}} were "totally speculative" and thus that the IHSA did not have a compelling state interest in regulating them.{{sfn|Eleff|2020|loc=PDF p. 95}}{{Sfn|Feuerschwenger|1983|p=445}} The IHSA appealed the ruling to the Court of Appeals for the Seventh Circuit.{{Sfn|Wisconsin Jewish Chronicle|1982}}

File:Richard Posner at Harvard University.jpg

On January 17, 1983, the Supreme Court voted against hearing the case, with Justices Harry Blackmun and Thurgood Marshall dissenting.{{sfn|The Dispatch|1983}} 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.{{sfn|Los Angeles Times|1983}}

{{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.{{sfn|Nemani|2013|loc=fn. 101}}

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.

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.{{Sfn|Idleman|2001|pp=306–307}} 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".{{Sfn|Idleman|2001|pp=334–335}}

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{{reflist}}

{{refbegin}}

• {{Cite journal |last=Feuerschwenger |first=Kurt H. |date=1983 |title=Inconsistent judicial protection of religious conduct: The Seventh Circuit contributes to the confusion in Menora v. Illinois State High School Association |volume=32 |work=DePaul Law Review |issue=2 |pages=433–456 |url=https://via.library.depaul.edu/cgi/viewcontent.cgi?article=2273&context=law-review |access-date=November 9, 2024}}
• {{Cite journal |last=Mills |first=Judith M. |date=1983 |title=Menora v. Illinois High School Association: Basketball players' Free Exercise rights compromised – technical foul |volume=1983 |work=Wisconsin Law Review |issue=6 |pages=1487–1504 |url=https://repository-dev.law.wisc.edu/s/uwlaw/media/35392 |access-date=November 9, 2024}}
• {{Cite journal |last=Idleman |first=Scott C. |date=2001 |title=Religious freedom and the interscholastic athlete |volume=12 |work=Marquette Sports Law Review |issue=1 |pages=295–346 |url=https://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=1160&context=facpub |access-date=November 9, 2024}}
• {{Cite journal |last=Ali |first=Farida |date=2013 |title=Students' religious liberty: Religious attire and symbols in American public schools |volume=15 |work=Rutgers Journal of Law & Religion |issue=1 |pages=1–46 |url=https://sites.camden.rutgers.edu/wp-content/uploads/sites/4/2017/03/Students-Religiouns-Ali.pdf |access-date=November 9, 2024}}
• {{Cite journal |last=Nemani |first=Priti |date=2013 |title=Piercing politics: Religious garb and secularism in public schools |volume=30 |work=Asian American Law Journal |issue=1 |pages=53–82 |url=https://lawcat.berkeley.edu/record/1125557?v=pdf |access-date=November 9, 2024}}
• {{Cite book |last=Eleff |first=Zev |year=2020 |title=Authentically Orthodox: A Tradition-Bound Faith in American Life |publisher=Wayne State University Press}}

{{refend}}

{{refbegin}}

• {{Cite news |date=February 24, 1981 |title=Yarmulkes may be worn in Illinois tournament |work=Evansville Press |agency=United Press International |url=https://www.newspapers.com/article/evansville-press/158795016/ |access-date=November 9, 2024 |via=newspapers.com |ref={{harvid|Evansville Press|1981}}}}
• {{Cite news |date=February 28, 1981 |title=Rabbi hits IHSA on yarmulke rule |work=Chicago Tribune |url=https://www.newspapers.com/article/chicago-tribune/158795026/ |access-date= |via=newspapers.com |ref={{harvid|Chicago Tribune|1981}}}}
• {{Cite news |date=April 30, 1982 |title=AJCongress cries foul |work=Wisconsin Jewish Chronicle |agency=Jewish Telegraphic Agency |url=https://www.newspapers.com/article/the-wisconsin-jewish-chronicle-ajcongres/158795047/ |access-date=November 9, 2024 |via=newspapers.com |ref={{harvid|''Wisconsin Jewish Chronicle|1982}}}}
• {{Cite news |last=Unger |first=Rudolph |date=July 29, 1982 |title=Sport rule becomes a religious issue |work=Chicago Tribune |url=https://www.newspapers.com/article/chicago-tribune/158795116/ |access-date=November 9, 2024 |via=newspapers.com}}
• {{Cite news |date=January 17, 1983 |title=High court stays out of dispute over skull caps |work=The Dispatch |agency= |url=https://www.newspapers.com/article/the-dispatch/158795131/ |access-date=November 9, 2024 |via=newspapers.com |ref={{harvid|The Dispatch|1983}}}}
• {{Cite news |date=June 10, 1983 |title=Skull cap vs. dunce cap |department=Opinion |work=Herald & Review |url=https://www.newspapers.com/article/herald-and-review/158795165/ |access-date=November 9, 2024 |via=newspapers.com |ref={{harvid|Herald & Review|1983}}}}
• {{Cite news |date=July 10, 1983 |title=Slam-dunking with yarmulkes |work=Los Angeles Times |agency=Israel Today |department=Supplement |url=https://www.newspapers.com/article/the-los-angeles-times/158795201/ |access-date= |via=newspapers.com |ref={{harvid|Los Angeles Times|1983}}}}

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• {{Cite web |title=History |website=Hebrew Theological College |url=https://www.htc.edu/about-htc/history/ |access-date=November 21, 2024 |ref={{harvid|Hebrew Theological College}}}}

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• {{caselaw source

| case = Menora v. Illinois High School Association, 527 F. Supp. 637 (N.D. Ill. 1981)

| justia = https://law.justia.com/cases/federal/district-courts/FSupp/527/637/2368887/

}}

• {{caselaw source

| case = Menora v. Illinois High School Association, 683 F.2d 1030 (7th Cir. 1982)

| other_source1 = casetext.com

| other_source_url1 =

|other_url1=https://casetext.com/case/menora-v-illinois-high-school-assn}}

: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