Threatening an athletic boycott to protect religious freedom

No barrier should be imposed that might cast a shadow over the fairness of a contest or for an individual to compete.

Marathon runner Bracha “Beatie” Deutsch. Source: https://beatiedeutsch.com/.
Marathon runner Bracha “Beatie” Deutsch. Source: https://beatiedeutsch.com/.
Nathan Lewin
Nathan Lewin
Nathan Lewin is a Washington, D.C., attorney with a Supreme Court practice who has taught at leading national law schools including Harvard, Columbia, Georgetown and the University of Chicago.

The heroic superstars idolized by American sports fans are protesting racial injustice by canceling critical basketball matches and baseball games. Eight postponements attributable to athletes’ boycotts following the shooting of Jacob Blake were announced by the National Basketball Association, the Women’s National Basketball Association and Major League Baseball. Will these cancellations actually promote improved race relations? Very dubious. But the age of sports stars’ political neutrality is gone. Athletes are now recruited by partisans on controversial issues. The Washington Post reported that there is an “emerging new reality in big-time sports in which athletes are increasingly emboldened to express themselves on racial injustice and other social issues.”

American qualifiers for the marathon races to be held at the Olympics in Tokyo in 2021 (postponed from 2020) should, in the same spirit, support the “social issue” of religious freedom. An American-born runner who is a Sabbath observer will be denied the right to compete in the Tokyo games if the marathons—initially slated for a Sunday in 2020—are now rescheduled for a Saturday in 2021. Beatie Deutsch moved from Passaic, N.J., to Israel and became an Israeli citizen. She now lives in Jerusalem with her husband and five children. Beatie is an award-winning marathon runner who competes in a skirt, headscarf and elbow-length sleeves. She won the Life-Time Miami women’s half-marathon in February 2020. She will probably represent Israel in the Tokyo event, but she will be able to run only if the race is not held on Shabbat.

This is the opportunity for the American marathon team—Aliphine Tuliamuk, Molly Seidel, Sally Kipyego, Galen Rupp, Jacob Riley and Abdi Abdirahman—to emulate the basketball and baseball all-stars. They and other American competitors in the Olympics should notify the Japanese Olympic officials that they will race only if no religious barrier is imposed that might cast a shadow over the fairness of the contest.

In March 2012, the Beren Hebrew Academy of Houston, Texas, fielded a talented high school basketball team that qualified for the final round of the Texas Association of Private and Parochial School playoffs. The Association’s schedule of playoff games called for semi-finals to be played on Friday night and Saturday afternoon. The Beren Academy team, all of who observed the Sabbath day, was told that failure to play would be treated as a forfeited match, even though the competing teams expressed their willingness to accommodate to modification of the schedule. When the association refused to budge, my law firm filed a federal lawsuit on behalf of the team members and their parents. The playoff matches were then rescheduled for Friday afternoon (when Beren won) and Saturday night (when Beren lost) so that the students could participate actively and still observe their religion.

Three years earlier, in May 2009, the mock trial team of the Maimonides High School in Boston confronted a similar hurdle. The trial finals were scheduled for courtrooms in Atlanta on a Saturday. The competing schools were willing to accept an adjusted schedule to respect the Shabbat observance of the Maimonides team, but the mock trial organizers (and the Georgia Bar) refused to alter their program. With the help of the U.S. Justice Department and the chief judge of the Georgia courts, Lewin & Lewin, LLP succeeded in modifying the schedule. The Maimonides team competed on Friday afternoon rather than on Saturday. It didn’t win the championship, but the standings were not marred by a forfeit attributable to religious observance.

The notoriety of both cases resulted in permanent accommodations for Sabbath observers. Because public opinion overwhelmingly supported the Maimonides mock trial team and Beren Academy’s basketball stars, the ground rules for both competitions were changed.

The American runners who have qualified to run in the 2021 Tokyo Olympics surely do not want potential triumphs to be marred by the disqualification of a runner who can’t compete because the adjusted schedule—moving the marathon from Sunday to Saturday—made it impossible for her to race. They can, and should, forcefully communicate this message to the Tokyo organizers.

Nathan Lewin is a criminal defense attorney with a Supreme Court practice who has taught at Georgetown, Harvard, University of Chicago, George Washington and Columbia law schools.

The opinions and facts presented in this article are those of the author, and neither JNS nor its partners assume any responsibility for them.
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