Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 81 C 960 -- Milton I. Shadur, Judge.
Cudahy, Eschbach, and Posner, Circuit Judges. Cudahy, Circuit Judge, dissenting.
Interscholastic high school sports in Illinois, including basketball, are conducted under the aegis of the Illinois High School Association, a private association of virtually all of the state's public and private (including parochial) high schools. A rule of the Association forbids 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 is 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.
This rule is challenged in the present case as an infringement of the religious freedom of orthodox Jews. According to a stipulation between the parties, orthodox Jewish males are required by their religion "to cover their heads at all times except when they are (a) unconscious, (b) immersed in water or (c) in imminent danger of loss of life." There is no exception for playing basketball. Orthodox Jews who play basketball comply, or at least try to comply, with this requirement by wearing yarmulkes (small skull caps that cover the crown of the head) fastened to the hair with bobby pins. Ordinarily a yarmulke just perches on the head; the bobby pins are an acknowledgment of the yarmulke's instability on a bobbing head. But bobby pins are not a secure method of fastening; yarmulkes fastened by them fall off in the heat of play with some frequency. The Association has interpreted its rule to forbid the wearing of yarmulkes during play; and the plaintiffs in this lawsuit -- two orthodox Jewish high schools in Chicago, the members of their interscholastic basketball teams, and the members' parents -- contend that this interpretation forces them to choose between their religious observance and participating in interscholastic basketball, which as it happens is the only interscholastic sport in which the two schools participate.
The district court held that the Association is an arm of the state for purposes of the Fourteenth Amendment, that the hazards posed by yarmulkes are too slight to justify putting the plaintiffs to the choice we have just mentioned, and therefore that the rule, as applied to prohibit the wearing of yarmulkes while playing basketball, violates the free-exercise clause of the First Amendment, which was held in Cantwell v. Connecticut, 310 U.S. 296, 303-04, 84 L. Ed. 1213, 60 S. Ct. 900 (1940), to be applicable to the states by virtue of the due process clause of the Fourteenth Amendment. 527 F. Supp. 637 (N.D. Ill. 1981).
The Association no longer contests the finding that it is an arm of the State of Illinois for purposes of the Fourteenth Amendment. Although the Association is nominally a private organization, public high schools comprise the bulk of its membership and dominate its decisionmaking. Since there is no issue of state action before us, we need not consider the district court's application of the principle of collateral estoppel to bar the Association from denying that it is an arm of the state for purposes of the Fourteenth Amendment. Our silence is not to be construed as approval or disapproval of the district court's analysis of this question.
The First Amendment, so far as is relevant to this case, provides that "Congress shall make no law . . . prohibiting the free exercise [of religion]." Read literally (after substituting "Illinois High School Association" for "Congress" and "rule" for "law"), this language would not forbid a regulation secular in purpose (the purpose of the no-headwear rule is to promote safety); general in application; not motivated by antipathy to any religious group on which the regulation might bear heavily or by sympathy for a competing group (there is no suggestion of any such motivation here); and that does not actually prohibit a religious observance but merely makes it more costly by forcing the observant to give up some government benefit (here, participation in an interscholastic sport sponsored by an arm of the state). Wisconsin v. Yoder, 406 U.S. 205, 32 L. Ed. 2d 15, 92 S. Ct. 1526 (1972), on which the plaintiffs rely heavily, involved a state law that forced Amish children to attend school, contrary to their religion. The counterpart in this case would be a state law that forbade people to cover their heads, wherever they were or whatever they were doing, with no exception for orthodox Jews. Cf. Moskowitz v. Wilkinson, 432 F. Supp. 947 (D. Conn. 1977). The no-headwear rule does not do this; it forces orthodox Jews to choose only between keeping their heads covered and playing interscholastic basketball.
But whatever the literal or for that matter the original meaning of the free-exercise clause, the Supreme Court has interpreted it to require the government, when it can do so without too much cost or inconvenience, to bend its regulations -- even when they are secular, general, nondiscriminatory, and do not forbid but merely burden a religious observance -- to spare religious people the painful choice between giving up a part of their religious observance and giving up a valuable government benefit. In Sherbert v. Verner, 374 U.S. 398, 10 L. Ed. 2d 965, 83 S. Ct. 1790 (1963), a Seventh-Day Adventist was fired by her employer because she would not work on Saturdays -- her religion forbade her to do so. She applied for unemployment compensation. It was denied on the ground that her refusal to work on Saturdays constituted a failure, without good cause, to accept available suitable work when offered, a condition under state law for receiving unemployment compensation. The Supreme Court held that this denial placed a burden on the plaintiff's exercise of her religion that was disproportionate to the state's interest, described as the avoidance of "fraudulent claims by unscrupulous claimants feigning religious objections to Saturday work. . . ." 374 U.S. at 407.
Sherbert and the cases following it require a comparison of two burdens: 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. See, e.g., Giannella, Religious Liberty, Nonestablishment, and Doctrinal Development, 80 Harv. L. Rev. 1381 (1967); Note, Religious Exemptions under the Free Exercise Clause: A Model of Competing Authorities, 90 Yale L.J. 350, 351-62 (1980). 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.
The benefit that the plaintiffs seek in this case is participation in interscholastic basketball games; for so far as appears the rules of the Illinois High School Association do not forbid the wearing of headwear in any other sport, and anyway the plaintiffs do not want to participate in any of the other interscholastic sports regulated by the Association. Windsor Park Baptist Church, Inc. v. Arkansas Activities Ass'n, 658 F.2d 618 (8th Cir. 1981), held that it was not a violation of the free-exercise clause to exclude a Baptist school from participating in all the interscholastic sports sponsored by the Arkansas counterpart to the Illinois High School Association because the school refused on religious grounds to seek accreditation by state educational authorities as required by state law. But the fact that the burden on religious observance was greater in Windsor than in the present case is not decisive. We must also compare the burdens on the states of accommodating their interests to those of the religious claimants. As under any balancing test, each case tends to be sui generis, so that the principal value of precedent is to identify the interests that must be weighed and to tell us whether, in weighing them, we should place our thumb on one pan or the other. Sherbert indicates that our thumb should be on the claimant's pan, because it says that the state's interest must be "compelling" to outweigh the claimant's. 374 U.S. at 403, 406. See also Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707, 718, 67 L. Ed. 2d 624, 101 S. Ct. 1425 (1981). Yoder, however, suggests that a secular regulation is permissible unless it "unduly burdens" the free exercise of religion. See 406 U.S. at 220.
But in the view we take of this case we do not have to choose between these formulations, assuming they really are different. A court, before attempting to balance competing interests, must define them as precisely as it can, since in the process of definition it may become apparent that there is no real conflict. The concept of "false conflict," a major theme in the modern scholarship on conflict of laws, see, e.g., Cavers, The Choice-of-Law Process 89-92 (1965), has, we think, an application to constitutional adjudication in general and to this case in particular. The conflicting claims of church and state are a source of some of the bitterest and most divisive controversies in our society. Weigh them and choose we shall if we must, but we want first to satisfy ourselves that the claims really are irreconcilable.
The parties have argued this case to us as if the religious obligation that was in conflict with state regulation was an obligation while playing basketball to wear a yarmulke fastened to your hair by bobby pins. But that is not what the stipulation says, and while we are not Talmudic scholars we are reasonably confident, and the plaintiffs' counsel acknowledged at oral argument, that the precise nature of the head covering and the method by which it is kept on the head are not specified by Jewish law. The wearing of a yarmulke -- which by its size and position is liable to fall off in any activity involving sudden movement -- is conventional rather than prescribed; some orthodox Jews prefer to wear an ordinary hat instead. The affixing of the yarmulke to the head (more precisely, the hair) by bobby pins is even more obviously a convention rather than a religious obligation, and it happens to be an inherently insecure method of keeping the yarmulke attached during basketball play.
If the Talmud required basketball players to wear yarmulkes attached by bobby pins, there would be a conflict with the state's interest in safety. But it does not, so it would seem that all the plaintiffs have to do to obviate the state's concern with safety is to devise a method of affixing a head covering which will prevent it from falling off during basketball play. We are not the people to devise the method -- to say that yarmulkes should be equipped with chin straps or sewn to headbands or replaced by some form of head covering that fits the head more securely. But we are reasonably sure that a secure head covering exists or can be ...