> > 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.) >
Why say that the government is discriminating on the basis of religion if it is simply apply neutral principles of contract law. I understand that there is a question as to whether the contract can be enforced using merely neutral principles, but that isn't your argument here. Rather, I take it that your objection rests on a non-discrimination principle. Where is the discriminatory legal principle at issue? > > > > 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. > > > > _______________________________________________ > 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. >
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