By refusing to use the civil courts to enforce religion-based contracts, we are not denying "religious people" access to civil enforcement, but rather denying access only to religious contracts that effect religious law. I think it is quite clear in the Establishment cases that it is inappropriate for the courts to determine religious law; that is easy. Why then would it be all right for them to enforce religiously motivated obligations? I have not heard a good reason why a dual-track enforcement scheme is not the better approach, with religious courts enforcing religious contracts (assuming enforcement does not violate the law, e.g., no cutting off hands or genitally mutilating girls) and civil courts enforcing contracts that do not require an interpretation of religious law, or an interference in the religious organization's universe/world. For those who believe that so-called "church autonomy" is a positive value, I cannot see how civil enfocement of religious contracts can be a good thing.
Marci -----Original Message----- From: Volokh, Eugene <vol...@law.ucla.edu> To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> Sent: Thu, Nov 11, 2010 3:39 pm Subject: Re: TRO against Oklahoma "no use of Sharia Law" I would think that, under Lukumi Babalu and McDaniel, the government may not authorize the enforcement of secular arbitrations but refuse to enforce religious arbitrations. Whatever the scope of permitted discrimination against religion might be under Locke v. Davey, I don’t see how Locke would extend to a situation such as this one. More broadly, the Court has interpreted the First Amendment as barring any religious decisions by courts. If some dispute over property – perhaps a substantial amount of property, and perhaps in the context of a schism in which excommunication and shunning might not be much of a remedy – or contract rights requires a determination of a religious question (e.g., whether a supplier’s food products are kosher, whether the terms of a religious trust have been fulfilled, and so on), the civil courts will refuse to hear the dispute. I think that’s sensible, for the reasons the Court has set out. But if we are to deny religious people a means for resolving their disputes through the normal machinery (and the normal enforcement mechanisms) of civil law, machinery that is one of the essential functions of a government, it seems to me that we should offer them some alternative mechanism. The obvious solution, I think, is the same solution that people get when they want some specialized or supposedly more efficient tribunal to resolve their secular contracts, but with the enforcement power of the state behind the contracts: binding arbitration. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Thursday, November 11, 2010 12:07 PM To: religionlaw@lists.ucla.edu Subject: Re: TRO against Oklahoma "no use of Sharia Law" I guess my question is not so much how is it possible, but (1) why would we want civil courts to enforce religious agreements? and (2) why would the civil courts be willing to use civil enforcement measures to enforce religious agreements? If a person makes an agreement based on religious principle, why shouldn't they be limited to religious fora and their means of enforcement, whether it is shunning, or excommunication, or having to teach Sunday School. There seems to be an implicit agreement in this discussion that enforcement of religious agreements in civil courts is a positive policy decision. I think it probably is not. A dual system is the better approach for Establishment purposes and for the identity of religious individuals. So, in the Catholic Church, there are civil trials for civil liability for causing child sex abuse by clergy and there are ecclesiatical trials for the Church's version of justice. Marci _______________________________________________ o post, send message to Religionlaw@lists.ucla.edu o subscribe, unsubscribe, change options, or get password, see ttp://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. nyone can subscribe to the list and read messages that are posted; people can ead the Web archives; and list members can (rightly or wrongly) forward the essages to others.
_______________________________________________ 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.