Eugene,
In your mind does the constitutional difficulty arise from the court choosing a
Muslim arbitrator under the contract or from the enforcement of a contract
involving religious terms?
The former; I don't see any inherent problem in enforcing the
results of a religious arbitration.
Suppose, for example, that the parties had -- pursuant to the contract --
chosen Muslim arbitrators, who had arbitrated the dispute, and then one the
parties sought to enforce the arbitration award in court. Could the other
party defend on the ground that the court was being asked to enforce an
arbitration that was infected with unconstitutional religious discrimination?
Frankly, I am skeptical of the equal protection argument here. I don't see how
you can get an equal protection violation without doing some sort of Shelly v.
Kramer end run around the state action doctrine, and I think that such an end
run is both unlikely to succeed and as a normative matter should be done only
sparingly.
I'm no great fan of the more expansive readings of Shelly. But
when a government actor is deciding who gets a particular (lucrative) position
based on that person's religion, it seems to me that state action is eminently
present, or more specifically that the government actor is discriminating based
on religion in presumptive violation of the Free Exercise Clause and the First
Amendment. To be sure, the government actor isn't motivated by religious
animus; it's just trying to enforce a contract. But it is still deliberately
treating people different from other people based on whether they are Muslims
or not. (When the court just enforces an arbitration conducted by a private
party, there is not such discrimination by a government entity, even if the
private party discriminates based on religion or sex in selecting the
arbitrators.)
I think that we want to allow people to use the law to create illiberal
arrangements, so long as such arrangements don't pose a threat to the basic
liberal order. The widespread use of racially restrictive covenants given the
American experience with race posed such a threat. I have a hard time seeing
that voluntary commercial arbitration under sharia law poses such a threat.
Hence, in response to Marci's initial question of what about a contract that
called for an arbiter based on race or gender, my default position is to say
"No problem. Let people write the contracts that they wish to write." This,
however, is only a default. If Marci and other skeptics can tell a
sufficiently compelling story about how this particular practice or form of
private discrimination threatens the liberal order, then I think that we have a
reason for denying enforcement. (I suspect that Marci and I would differ on
what constitutes a threat to the liberal order.) Even in these cases, I think
that as a doctrinal matter it makes more sense to do this via things like the
void as against public policy doctrine under contract law rather than through a
convoluted reading of the equal protection clause.
I think that the neutral principles doctrine has a bit more traction, although
even there I am skeptical. At some point I think that the first amendment is
implicated when a court makes religious identifications, but it seems to me
that in order for courts to be cognicient of religion in ways that I am
assuming are uncontroversial -- such as for purposes of providing free exercise
protection or policing establishment clause violations -- courts will have to
be able to make religious identifications. It is not clear to me that a
contract calling for a Saudi national who is a Muslim will -- as a practical
matter -- raise these sorts of problems. A contract calling for "a pious and
orthodox Muslim" in contrast, might.
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