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MENORA v. ILLINOIS HIGH SCHOOL ASSOCIATION

November 3, 1981

MOSHE MENORA, ET AT., PLAINTIFFS,
v.
ILLINOIS HIGH SCHOOL ASSOCIATION, ET AL., DEFENDANTS.



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 is denied.

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
  defendants.
    (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
    court.
      (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. ...


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