NGSL v. UVA IM-Rec Sports
73 U.Va 9 (2020)
Justice Tonseth delivered the opinion of the Court.
I.
The crack of the bat (and a cold one), the cheer of the fans, and the glory of dominating on Copeley field are at stake in this case. COVID-19 has wreaked havoc on the world in 2020, bringing normal life and all of its associated trappings to an abrupt halt. It is by way of this pandemic that Petitioners bring their claim. In essence, the North Grounds Softball League (NGSL) has sued IM-Rec Sports for violating their free exercise rights to play softball, with the only acceptable remedy being to immediately implement a fall softball season. Due to the failure of the respondents to prove their compelling interest was narrowly tailored to the least restrictive means, this Court rules in favor of NGSL and orders the season to start immediately.[1]
II.
Neither party disputes what is truly underlying this case. Respondents, overseeing intramural sports for UVA, control and administer all aspects of the sports students’ play. From scheduling games to certifying umpires and awarding participation trophies to the members of Greek life that are still overcompensating for a lack of you-know-what, IM-Rec does it all. Their administrative role has taken on a new shape this fall, regulating which sports are acceptable for students to participate in while complying with the dictates of COVID-19 protocol.
Through their determination, respondents have allowed for a bevy of intramural sports to continue this fall, including beach volleyball, Spikeball, and cornhole.[2] Petitioners have sued over one specific inclusion, kickball, countered with the exclusion of softball, claiming this exclusion violates petitioners’ explicit right of free exercise codified in the U.S. Constitution.
For those unfamiliar with NGSL, allow me a brief digression to truly paint the scene of their claim. UVA Law attracts its fair share of brainiacs, policy wonks, and do-gooders who will make an immense impact on the world. But beyond these, UVA Law attracts the best and brightest softball players, who hope to translate that success to national fame and a mid-level BigLaw gig. I mean, ESPN “the Ocho'' even acknowledged the level of skill at UVA Law,[3] proving the importance of softball to the Law School community. It is with this in mind that we conduct our analysis.
III.
Petitioners, relying on their fundamental right of free exercise codified in the Bill of Rights, point to the First Amendment, specifically the clause, “Congress shall make no law . . . prohibiting . . . free exercise . . .”[4] While potentially taken out of context, being the true and unwavering adherent to textualism as I am,[5] I will entertain this argument.
When analyzing a case under the ‘free exercise’ doctrine, respondents must be able to show that the substantial burden they have placed on petitioners concerning their free exercise of softball is justified due to the furthering of a compelling governmental interest by the least restrictive means.[6] Petitioners point to this test as “the girl-next-door of legal tests—overlooked in a comfortable, seductively familiar way,”[7] yet crucial to proving their claim.
In breaking down this inquiry, it is essential to start with the substantial burden analysis. Petitioners have met the baseline to show how respondents’ failure to allow softball to be played this fall merits a substantial burden. From limiting their ability to day-drink in socially acceptable ways, to forcing NGSL players to take up the more expensive sport of golf instead, and further, by making NGSL members seek therapy to determine if they’re truly just washed-up athletes, petitioners have cleared this procedural hurdle. The burden thus shifts to respondents.
Understanding this exclusion of softball occurred during a pandemic, NGSL concedes that IM-Rec has a compelling government interest in protecting public health.[8] The case hinges on the tailoring of this exclusion. As an arm of the state (a/k/a the University), any policy respondents promulgate must be generally applicable. However, with the dearth of exemptions for sports that are allowed, compounded with the similarity in risks that kickball and softball share, shows that IM-Rec has singled out petitioners unfairly. As my boi Antonin would say, paraphrasing slightly, respondent’s “opinion serves up a freedom-destroying cocktail consisting of two parts patent falsity”[9] when you look at their rules and how they were applied to NGSL. We simply cannot allow this to stand. The number of exemptions, combined with the similarities in kickball and softball, show that respondents have not narrowly tailored their policy.
IV.
In writing this opinion, I do not suggest that further rights are implied under the Constitution through substantive due process. Rather, this analysis is focused specifically on textualism, the importance of softball to UVA Law, and my desire to stop losing copious amounts of golf balls on my now-free Friday afternoons. Respondents’ final attempt to contest that my bias has decided this case strikes out for three reasons: 1) We do what we want,[10] 2) I have life tenure—try to impeach me, and 3) Let the kids play.
Calamaro, J., Dissenting
When emotional immaturity rears its ugly head in an ill-reasoned opinion such as this, one must attempt to be an adult and write a dissent worthy for future generations. Namely, this generation, but in the future. “NGSL is dead,” said Nietzche; and indeed, it has shown itself to be but a vapor in the winds of eternity. These winds, which blow over all of the land, also blow over wonderfully sculpted golf courses. They rustle the leaves, give bemused golfers pause as they back away from the ball to readjust their aim, only to chunk it ten feet in front of them.
This is fall golf, the greatest activity possible, requiring only the most valuable of resources—time and money. Most importantly, fall golf will always be there, beckoning each person with its promise of greatness, at least for one shot, and great sorrow as well. But most importantly, fall golf is better than softball, and it is better than whatever these ne’er do wells want to complain about not having. They are in the golf course of Eden, and they want to eat the cursed fruit in a prideful fervor while they ignore the opportunity to shoot well over 100 and come home disappointed after a five-hour round.
Indeed, golf is expensive. But the rewards are immeasurable, and no false equivalency like my colleague has made between softball and kickball can be made with golf. I find it laughable that a sport which will decide entire careers is given little to no deliberation in my colleague’s opinion, and it worries me that he chooses to view it—not as a safe and fun alternative—but as a nightmarishly expensive endeavor. I am saddened that the Court does not realize that this entirely reasonable activity is a viable alternative, and according to our jurisprudence, should not have even ruled on this subject in the first place. Go golf, and you will not only find yourself, you will find god (Tiger Woods) as well.
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pjt5hm@virginia.edu
dac6jk@virginia.edu
[1] Any and all claims of bias respondents claimed against yours truly are unfounded. While I solely chose UVA Law to play in the NGSL, I believe I am well equipped to balance my personal interest with my immense power from the bench.
[2] https://recsports.virginia.edu/intramural-sports
[3] https://www.lawweekly.org/april-fools/2020/4/1/espn-the-ocho-to-broadcast-ngsl-fall-season
[4] Brief for the Petitioners, 7.
[5] I mean, they did quote the actual Bill of Rights. I can’t deny that. I’m not concerned with the absence of religion. Sports fans are just as irrational and dedicated as religious folk, so the words are interchangeable.
[6] At least, this is what the outlines I downloaded for both ConLaw and Religious Liberty tell me.
[7] Porter, Elizabeth G., ‘Pragmatism Rules’ 101 CORNELL LAW REVIEW 1 (2015).
[8] Jacobson v. Massachusetts, 197 U.S. 11 (1905).
[9] Navarette v. California, 572 U.S. 393 (2014).
[10] Law Weekly v. CoPA Copiers, 369 U.Va 96 (2019).