Law School Case Brief
Menora v. Ill. High Sch. Asso. - 683 F.2d 1030 (7th Cir. 1982)
A comparison of two burdens is required: the burden on the person who is seeking a government benefit of being denied the benefit as the price of observing his religion, and the burden on the government of extending the benefit to someone who fails to meet the usual requirements for eligibility. The more valuable the benefit to the claimant and hence the greater the burden on him of forgoing it in order to continue to observe his religion, the greater must be the burden on the government of relaxing the conditions it places on that benefit for a refusal to make an exception for the claimant to survive a challenge based on the First Amendment. Free exercise of religion does not mean costless exercise of religion, but the state may not make the exercise of religion unreasonably costly.
Interscholastic high school sports in Illinois, including basketball, were conducted under the aegis of defendant Illinois High School Association ("Association"), a private association of virtually all of the state's public and private high schools. A rule of the Association forbade basketball players to wear hats or other headwear, with the sole exception of a headband no wider than two inches, while playing. The principal concern behind this prohibition was that the headwear might fall off in the heat of play and one of the players might trip or slip on it, fall, and injure himself. Orthodox Jews playing basketball complied with the requirement by wearing yarmulkes (small skull caps that cover the crown of the head) fastened to the hair with bobby pins. However, the Association interpreted its rule to forbid the wearing of yarmulkes during play. Thus, plaintiffs, two orthodox Jewish high schools in Chicago, the members of their interscholastic basketball teams, and the members' parents, filed suit in federal district court against the Association contending that the interpretation forced them to choose between their religious observance and participating in interscholastic basketball. They challenged the rule as an infringement of the religious freedom of orthodox Jews, who were required by virtue of their orthodox Jewish beliefs to cover their heads in most circumstances. The district court held that the Association was an arm of the state for purposes of the Fourteenth Amendment, that the hazards posed by yarmulkes were too slight to justify its prohibition, and therefore the rule, as applied to the prohibition of yarmulkes while playing basketball, violated the free-exercise of religion clause of the First Amendment as applied to the state through the Fourteenth Amendment.
Were the rights of the Orthodox Jews violated by the Association's prohibition on wearing yarmulkes during basketball games?
According to the court of appeals , the Orthodox Jewish athletes had the burden of proving that their First Amendment rights were infringed by the Association's no-headwear rule. The court ruled that based on the records of the case, the Jewish athletes failed to make out a case and that the judgment in their favor must be vacated. The court averred that the Jewish athletes had no constitutional right to wear yarmulkes insecurely fastened by bobby pins, and therefore they could not complain if the Association refused to let them do so because of safety concerns which, while not great, were not wholly trivial either. Notwithstanding this fact, however, the court posited that the competing issues were resolvable as a method could be devised to allowing head coverings that would not risk the safety to players. The court ordered the district court to retain jurisdiction while the Jewish athletes proposed a form of secure head covering that complied with Jewish law yet met the Association's safety concerns.
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