This is an interesting wrinkle, but I don't see how submitting to the religious courts for the adjudication of a particular dispute constitutes the prevention of conversion. If A and B, being both citizens and residents of France, enter into a contract with an arbitration clause that applies French law and makes France the seat of the arbitration, and B later emigrates to the US and becomes a US citizen, there is no policy objection to conducting the arbitration as originally stipulated. Let's say that French law would apply some rules to the agreement and its performance that hinged on the parties' nationality--the arbitrator would need to take into consideration that at the time of the dispute, party B was not a French national (if that's possible--it used to be that you could not, under French law, divest yourself of French nationality). Similarly, one would need to determine if in a religious court proceeding the rules differ if one party is not a member of that religion. That doesn't invalidate the proceeding, it just means that (possibly) different substantive rules might apply at the time of dispute than would have applied if there had been no conversion.
While that may be a somewhat mitigating factor, even if the religious court concluded that an agreement to submit to its jurisdiction and the application of religious law to the dispute could not be undone or modified based on a change in one party's religion (for example because the religious law does not recognize changes in religion, although as I understand it even Islam recognizes such a thing, albeit it sometimes criminalizes it), unless the remedy ordered offended some basic tenet of national law (slavery, mutilation, etc.), the national courts should recognize the judgment. For this reason, I think Prof. Finkelman's concern about the Illinois case is somewhat misdirected, if what he is saying is that a non-Orthodox Jew can void the marriage contract's "arbitration" clause even though he signed the contract. If the religious court had merely *ordered* the religious divorce and prescribed alimony or other material support, I don't see what the objection would be, since this would have been perfectly consistent with the secular proceedings other perhaps than the measurement of damages. The problem, if I understand correctly, is that under Jewish law the court can't order a get, it can only recognize one voluntarily acceded to by the husband. In that case, ordering the husband to consent is putting words into his mouth rather than enforcing a pre-existing agreement, and it is only that aspect of the case that suggests Constitutional issues. Still, in light of the fact that there are other areas in which people can waive free speech rights, I don't think the religious court's actions raise important enough fundamental-rights concerns to warrant secular courts' intervention. The fact that the husband was no longer a member of that religious sect doesn't seem to be critical here--presumably the court would have done the same thing even if the husband had remained (or become) Orthodox. Perhaps the Jewish courts need to get a bit more creative and rule that the husband's participation in the secular divorce constituted the necessary consent to a religious one? A good legal fiction is something all us secular lawyers can appreciate. Vance QUEEN. You have all incurred death; but I can't slaughter the whole company! And yet (unfolding a scroll) the law is clear--every fairy must die who marries a mortal! LORD CH. Allow me, as an old Equity draftsman, to make a suggestion. The subtleties of the legal mind are equal to the emergency. The thing is really quite simple--the insertion of a single word will do it. Let it stand that every fairy shall die who *doesn't* marry a mortal, and there you are, out of your difficulty at once! On Wed, Nov 19, 2008 at 2:37 PM, Douglas Laycock <[EMAIL PROTECTED]> wrote: > This argument that voluntary submission to religious courts is like > voluntary submission to arbitration has a lot of force. And it can be > carried a step further: arguably it discrimiantes against religion if > agreements to secular arbitration are enforceable and agreements to > religious arbitration are not. > > As against the discrimination argument, there is the response that secular > arbitrators at least purport to be enforcing the law of the land (even > though they often create ad hoc compromises in practice); religious courts > make no pretense of enforcing secular law. I'm not sure how far that > carries. > > The more serious argument against civil enforcement of judgments of > religious courts is that the right to change one's religion is fundamental > to free exericse. If I sign a commercial arbitration agreement at time 1, > and object to arbitration at time 2, when a dispute has actually arisen, I > am out of luck. But if I agree to submit to a religious court at time 1 > (say, when I get married), and I object to the religious court at time 2, > when a dispute has actually arisen, I may have abandoned the faith in the > meantime; I have at the very least changed my view of religious courts. If > government holds me to my time 1 agreement, government is preventing me from > changing my religion. > > This is not a problem if both parties agree, after the dispute has arisen, > to go to the religious court, and if both parties abide by the judgment. > That is just a mechanism for voluntary dispute resolution; the government is > not involved. But even in this situation, if the religious court grants a > divorce that the state recognizes, we have gone beyond voluntary dispute > resolution. > > > > > > Quoting "Volokh, Eugene" <[EMAIL PROTECTED]>: > > > I'm inclined to say that this is exactly right. In fact, the > > Court's church property and church government cases suggest that > > religious arbitration is the only permissible mode for resolving those > > cases that require interpretation of religious doctrine. And U.S. law > > has certainly coexisted for decades, if not longer, with religious > > arbitration by Beth Dins, Christian arbitration bodies, and a smaller > > number of Islamic arbitration bodies. > > > > I was curious, though, about two related questions: (1) Does > > Jewish, Muslim, or Christian religious law, as interpreted by at least > > some prominent arbitral bodies, set up rules that are either > > substantively (e.g., men are favored over women in divorce settlements, > > or vice versa) or procedurally (e.g., male witnesses are treated as more > > credible than female witnesses, or religiously orthodox witnesses are > > treated as more credible than apostate witnesses) discriminatory based > > on sex, religion, or ethnicity? (2) Is there a generally applicable > > principle of arbitration law (both religious and secular) that declares > > arbitration awards to be against public policy if they are based on > > similarly discriminatory rules? > > > > It may well be that we shouldn't have such a generally applicable > > principle of arbitration law, because parties should be free to waive > > their nondiscrimination rights, at least in certain kinds of contexts. > > But if there such a generally applicable principle, and some religious > > arbitral decisions do indeed tend to involve the application of > > discriminatory rules, then presumably those decisions would be > > unenforceable unless some religious exemption is granted from the > > arbitration law principle. > > > > Eugene > > > > Vance Koven writes: > > > > > > We've discussed this a bit on the list before, but I don't see > > why in principle religious courts should not be treated pretty much as > > commercial arbitration is: as a consensual alternative to the state > > legal system (with enforcement permissible through the national courts > > where required). In all such cases, the national legal system provides > > an umbrella of protections, including among other things the necessity > > for consent and honesty in obtaining the agreement by which the parties > > submit to the alternative jurisdiction. > > > > It should not be an objection in most instances that the > > substantive rights of the parties differ from the norms of the secular > > courts. There are very few rights, even constitutional ones, the > > exercise of which in particular circumstances cannot be waived. For > > example, people waive their free speech rights in private contexts all > > the time (think of non-disparagement clauses and even confidentiality > > agreements, including those attached to litigation settlement > > agreements); they waive statutory rights such as nondiscrimination > > rights and antitrust rights; and so on. Some things cannot be waived, > > such as one's right to be free as opposed to enslaved, but of course > > this is understood to be a matter of the perpetuity of the > > arrangement--any employment agreement restricts one's freedom of action > > to an extent--and the mechanism for enforcement (prohibition of contrary > > employment rather than specific performance). One also is restricted in > > waiving rights of third parties (e.g. one's children), which might > > create some issues under religious law. Still, the general principle > > ought to be that as to the consenting party an agreement to refer most > > matters to religious courts ought to be upheld and enforced by the > > secular courts. > > > > I frankly don't see what Matthew or Luke (or Mark or John, for > > that matter) have to say on the matters quoted below have to do with the > > subject. > > > > Vance > > > > > > > > > > Douglas Laycock > Yale Kamisar Collegiate Professor of Law > University of Michigan Law School > 625 S. State St. > Ann Arbor, MI 48109-1215 > 734-647-9713 > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. > -- Vance R. Koven Boston, MA USA [EMAIL PROTECTED]
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
