Featured Article Summary #142

Menora v. Illinois High School Association is a case from the U.S. Court of Appeals for the Seventh Circuit involving two Jewish schools that wanted to play in an IHSA interscholastic basketball tournament. The IHSA required the students to remove their kippot because the rules banned head coverings on the court, and the IHSA said the kippot could fall and cause injuries. The students and their families sued, arguing that this requirement violated their First Amendment right to religious freedom, and the case turned on how courts should evaluate restrictions on religion. The district court applied the Sherbert test and ruled for the schools, finding the IHSA had not shown a “compelling interest” because it lacked evidence that kippot had caused harm. The Seventh Circuit overturned that decision and used a different method called the “false conflict” doctrine, reasoning that the conflict could be solved if the schools made head-coverings that satisfied safety concerns. The parties later settled in 1983, allowing kippot if they were secured with contour clips, and commentators criticized the Seventh Circuit’s approach while noting that a later Supreme Court decision in Employment Division v. Smith narrowed the Sherbert test. Jewish religious law generally requires men to cover their heads when praying or blessing food, and although many Jewish men in early 20th-century America wore kippot mainly when needed, by the 1950s and 1960s kippot became a more visible, openly practiced religious symbol, including in public. In February 1981, two Orthodox Jewish schools in Illinois, Ida Crown Jewish Academy and Yeshiva High School, faced an issue during the state basketball tournament run by the IHSA, which banned headgear during play. Although students had long worn kippot using bobby pins, the IHSA ruled they could not, and after failing to resolve it, the students and their parents sued the IHSA, claiming their freedom of religion under the U.S. Constitution was violated. The Free Exercise Clause of the First Amendment protects people from laws that interfere with their religion, and the Supreme Court has held since 1940 that it also applies to state governments. In cases like Sherbert v. Verner, the Court created a “balancing test” that requires the government to show a compelling reason for restricting religion, a strong link between the restriction and that reason, and no less intrusive alternative; later cases reinforced strong protection for religious practice and a person’s own understanding of religious duties. But the Sherbert test left open questions about how to judge whether beliefs are sincere and what evidence is needed to show the law actually serves the government’s interest, leading to inconsistent rulings by lower courts. Some scholars have proposed alternatives, including a “false conflict” approach that focuses on clarifying the laws’ real purposes to determine whether there is actually a conflict or a way to satisfy both interests. Students, parents, and schools led by Moshe Menora sued the IHSA on the day Yeshiva was set to play Harvard, arguing the rule against wearing kippot violated their First Amendment religious rights. A district court judge, Milton Shadur, issued a temporary restraining order that let the teams play, and the court later ruled in November 1981 that the IHSA violated the students’ freedom of religion because the claimed safety risks were “totally speculative” and the IHSA did not have a compelling reason to restrict the kippot. The IHSA appealed the ruling to the Seventh Circuit. In June 1982, the Seventh Circuit vacated the district court’s decision, in a 2–1 ruling, saying there was no real conflict between the IHSA’s safety goals and the students’ religious rights. The majority held that the students failed to prove a First Amendment violation because they could satisfy safety concerns by creating a more secure head-covering, and it placed the burden on the students to propose that alternative; the court warned that the IHSA could face constitutional problems if it still refused after such a proposal. In dissent, Judge Cudahy argued that the headwear ban effectively forced students out of playing and that the court should have applied the Sherbert test rather than shifting the burden to the students. The case was sent back to the district court, and the students’ appeal to the Supreme Court was denied in January 1983.