I wrote:
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.)
Nathan Oman writes:
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 don't see a discriminatory legal principle at issue here. But
I see a discriminatory decision by a judge: I will not appoint Joe Schmoe as
an arbitrator, because he is not Muslim. To be sure, the judge is just
enforcing a contract. But he is still a government actor, allocating a
particular post based on religion. That he is just doing that in enforcing a
contract does not, I think, prevent his discriminatory conduct from being state
action.
By the way, what do you think about a state university
administering a privately funded scholarship for "Christian students"?
Eugene
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