The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Plaintiffs sue individually and on behalf of the class of male members
of the Orthodox Jewish faith who want to compete in Illinois
interscholastic high school basketball. They challenge on First Amendment
grounds the Illinois High School Association ("IHSA") rule that, by
prohibiting the wearing of headgear, makes it impossible for members of
plaintiff class to play without violating a fundamental tenet of their
faith.*fn1 IHSA has moved that I recuse myself from hearing this action
under 28 U.S.C. § 144 ("Section 144") and 455 ("Section 455").*fn2
For the reasons stated in this memorandum opinion and order IHSA's motion
On October 28, 1981 Astroth filed an "Affidavit of Disqualification of
Honorable Milton I. Shadur" stating:*fn3
(1) That he is the Executive Secretary of Illinois
High School Association, the defendants.
(2) That he believes and avers that the Judge before
whom this action is pending, Honorable Milton I.
Shadur, has a personal bias and prejudice against the
(3) The fact and reasons for the belief that such
personal bias and prejudice exist are as follows:
(a) The Honorable Milton I. Shadur was a member of
and was active in the American Jewish Congress prior
to his appointment to the federal judiciary.
(b) The American Jewish Congress is the
organization that is bringing this action before the
(c) The issues before the court center on the free
exercise of Orthodox Jewish beliefs.
This op1nion will treat with the last of Paragraph 3's factual assertions
first, simply because it is so entirely frivolous in the legal sense and
ignorant in the factual sense.
As a matter of law my religious beliefs, as well as those represented
by American Jewish Congress, are irrelevant—a matter treated
shortly in this opinion. But because IHSA has again sought to place them
in issue, I will repeat the statement I made when IHSA first moved my
recusal: I am Jewish, but I am not an Orthodox Jew. I do not share the
beliefs of plaintiffs, nor do I practice them. But of course I respect
them as I respect the beliefs and practices of every religion or, for
that matter, every atheist and every agnostic.
As for American Jewish Congress, like most Jewish organizations it does
not have a particular religious affiliation of its own, either Orthodox,
Conservative or Reform. Its members are drawn from every shade of Jewish
belief or, in many cases, from every shade of lack of Jewish belief. IHSA
and its counsel disclose a complete lack of understanding of such and
other aspects of Judaism, an understanding that would have foreclosed
their reliance on affidavit ¶ 3(c) in the current motion.*fn4
What is critical here, however, are not these facts as to religious
beliefs, but rather the poverty of IHSA's legal position in seeking to
place them in issue. Three terms back, when the Supreme Court heard N.L.
R.B. v. Catholic Bishop of Chicago, 440 U.S. 490, 99 S.Ct. 1818, 59
L.Ed.2d 538 (1979), should Justice Brennan have recused himself, instead
of writing as he did the dissenting opinion? When a suit is brought
challenging the erection of the Nativity scene in a city hall at
Christmas, who shall hear it? Must a Jewish judge recuse himself or
herself? If so, must not a Christian judge? When the question is whether
the Lord's Prayer from the King James Bible is to be recited in public
schools, must a Protestant judge recuse himself or herself? If it is the
Douay Bible instead, can the Protestant judge sit but not the Catholic?
Does the Jewish judge not hear either of those cases?
What defendants have wholly failed to perceive was stated very simply
in Lawton v. Tarr, 327 F. ...