Here’s an interesting story. An Australian boxer named Omar Al-Shaick has been banned from the sport for two years for refusing to provide a urine sample for drug testing. He claims that doing so would violate his Muslim beliefs because it would require him to expose himself during the test. (The examiner has to actually watch the urination to ensure that no one pulls a switcheroo.)
The Australian anti-doping organization which imposed the ban said that the testing method applied across the board, to athletes in many sports in many countries, including many Muslim athletes, and this had never been an issue.
Prof. Volokh has a nice, brief explanation here at NRO of the American law governing religious exemptions from generally applicable laws. To state the rule in one oversimplified sentence, sincerely held religious beliefs justify an exemption from generally applicable laws unless granting the exemption would create an undue hardship (say, on employers) or a compelling government interest outweighs the exemption.
Of course, the U.S. Constitution doesn’t apply to international anti-doping agencies. But one could easily imagine this sort of situation arising here instead of Australia. (And let’s assume that state action is involved.) How would such a claim be resolved under our law?
In Al-Shaick’s case, the Court of Arbitration for Sport said, “The athlete did not genuinely believe that it was contrary to his religious beliefs for him to give a urine sample in circumstances where strangers would have to observe that sample leaving his body.” If that were the case here — if the religious belief wasn’t “sincerely held” and was asserted as a ruse — the request for an exemption would fail.
But what’s confusing here is that the way the news story reads, the CAS may have been saying that Al-Shaick didn’t “genuinely believe” his religion forbids him to expose himself because other Muslim athletes have done so many times without complaint. However, as Prof. Volokh’s article makes clear, universality isn’t required under American law: “A claimant need not show that her view is common among Muslims, only that it’s sincerely held by this one particular Muslim.”
So, assuming the shy athlete’s belief is sincere (and not, as kind of appears to be the case here, a clever attempt to avoid a surprise doping test), we would have to move on to the second part of the analysis. I think most American courts would hold that the need for transparency and safety in sports is compelling enough to override a sincerely held claim of religious modesty. Plus, it could well wreak havoc on the sport if boxers (or other athletes) could avoid doping tests this way — it would defeat the purpose of universal testing.
After all, if one is to hew tightly to one’s religious or cultural scruples, there are simply going to be some activities one can’t participate in. For example, if boxer Al-Shaick got knocked out, he would expose the soles of his shoes. In a multi-cultural society, there are some offenses we just have to be willing to bear.
In sum, I don’t think Al-Shaick’s claim would be any more successful if brought by an American athlete in a U.S. court. But I could imagine it might have a better chance in a closer case. For example, if a devout student made this religious objection to a random, suspicionless drug test required to join the chess club. Even that might not win, but I’m glad the U.S. Constitution goes farther in protecting religious freedom than the rules applied by the Court of Arbitration for Sport.