A few thoughts in response to Eugene's email below:
Eugene's recounting of what would happen in the Ahmadi hypo leaves out an
important step: after one party objects to the Ahmadi as non-Muslim, the Court
won't just act immediately. The other party to the arbitration has to take a
position. If both (or all) the parties can't agree before the court that the
Ahmadi is not "Muslim" for purposes of the contract, the Court cannot proceed.
Thus the Court will always be dealing with a stipulation about the underlying
religious question, not simply one party's objection, and won't be deciding a
religious question. If the parties can't agree one way or the other, then the
Court can't act.
I also don't accept Eugene's main point. How is it discrimination (or
entanglement) for a court to abstain from deciding an underlying religious
question? Was the Supreme Court "discriminating" against one group of Russian
Orthodox by deciding Kedroff the way it did? It is not discrimination in the
invidious discrimination sense for one person to say that another person "is
not really [Religion X]" or to exclude them from a particular religious group.
That sort of distinction is in the very nature of religious discourse, which
*always* includes disputes over things like identity (cf. whether a child born
to a Jewish father and a non-Jewish mother is halachically Jewish). It is no
more discriminatory or immoral for a court to uphold two parties' agreed
understanding of who happens to be "Muslim" (whether that is set forth in the
terms of a contract or by stipulation before the Court), than it is for a court
or the police to order someone forcibly removed from a house of wor!
ship who has been rejected for leaving the faith. What if the contract said
that the arbitrator had to be the sitting Roman Catholic Bishop of Rome? If the
parties agree the Pope is Catholic, who is the court to disagree? Should law
profs or other potential arbitrators feel discriminated against because they
weren't on the list?
Re Eugene's other (and I take it primary -- the original post mentioned only
the Muslim identity of the arbitrators -- ) concern about entanglement, I don't
see how being knowledgeable about Sharia necessarily implicates belief in a
religion. I've learned a lot about particular aspects of Sharia representing
Muslim clients but that is not affected by whether I am a Muslim or not.
Finally, I add a personal note of surprise that I seem to be taking a more
classically libertarian position than Eugene is! There's got to be something
wrong with that. :)
Eric
________________________________________
From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu]
On Behalf Of Volokh, Eugene [vol...@law.ucla.edu]
Sent: Monday, January 03, 2011 5:04 PM
To: Law & Religion issues for Law Academics
Subject: RE: May American court appoint only Muslim arbitrators,
pursuant to an arbitration agreement?
I think that the entanglement question would most clearly arise when
the dispute is whether someone really knows Sharia as Islamic law (rather than
just as Saudi law), and the heart of the disagreement really goes to how he
interprets Islamic law.
I think there would also be an entanglement question if the court
appoints an arbitrator that one party thinks is Muslim and the other doesn't.
Nor could that be resolved, I think, by simply saying that the court should
just reject any arbitrator to whom the party objects on the grounds of the
arbitrator's supposed non-Muslim-ness, unless the contract so provides.
The clearer First Amendment problem, I think, stems simply from the
court's selecting an arbitrator based on religion, even when the contract so
demands. But that is a violation of the nondiscrimination doctrine of First
Amendment law, not the nonentanglement doctrine.
Also, in the example that Eric points to -- where a court considers
appointing an Ahmadi as an arbitrator, one party objects by saying "he's not
really Muslim," and the court therefore rejects the Ahmadi -- the religious
discrimination strikes me as particularly serious, because there isn't even the
justification that the judge is just enforcing the contract in appointing a
non-Ahmadi. The contract just says that the arbitrator must be Muslim; a
judge's rejecting someone because some people don't think he's really Muslim
strikes me as religious discrimination by the court, and not just in
implementing the clear terms of the contract.
Eugene
> -----Original Message-----
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Eric Rassbach
> Sent: Monday, January 03, 2011 1:54 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: May American court appoint only Muslim arbitrators, pursuant to
> an arbitration agreement?
>
>
> What is the entanglement problem in Eugene's view if the Court is not being
> asked to decide a religious question? If ARAMCO objected to the appointment
> of an Ahmadi arbitrator as non-Muslim then I could see how the Court would
> be unable to resolve the dispute. But appointing a Muslim arbitrator that both
> the parties agree is Muslim means that a court does not have to reach a
> religious question because it has been answered by the parties before the
> Court
> can get started. And since a court can't decide whether an Ahmadi is a Muslim
> or not, or any similar disputed question, it will never appoint a Muslim as an
> arbitrator where the parties disagree about whether he/she is Muslim.
>
> I also don't see how it creates other entanglement problems such as ongoing
> surveillance.
>
> For the same reasons I don't see a problem where a court enforces a
> corporation sole's documents. A court does not get entangled in a religious
> question by deciding that Mr. X is the Catholic Bishop of Utopia.
>
>
> ________________________________________
> From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu]
> On Behalf Of Volokh, Eugene [vol...@law.ucla.edu]
> Sent: Monday, January 03, 2011 4:19 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: May American court appoint only Muslim arbitrators,
> pursuant
> to an arbitration agreement?
>
> My view is that being a Muslim is not a limitation on being an
> arbitrator that a court may properly enforce, given the First Amendment and
> the Equal Protection Clause.
>
> I don't think there's any constitutional difficulty with a
> court's
> deciding whether someone adequately knows Sharia as it is understood in Saudi
> Arabia, though I imagine a court would have a pretty difficult time resolving
> such matters; it would make much more sense to leave the appointment of
> such an arbitrator to a private entity (or to a Saudi government entity).
>
> There might be a constitutional difficulty - of the
> entanglement /
> religious decisions variety - with a court's deciding whether someone
> adequately knows Sharia as Islamic law as such, for instance if there's a
> dispute
> about whether a person's view on a Sharia question shows ignorance or just
> shows disagreement about theological matters.
>
> Eugene
>
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Steven Jamar
> Sent: Monday, January 03, 2011 12:38 PM
> To: Law & Religion issues for Law Academics
> Subject: Re: May American court appoint only Muslim arbitrators, pursuant to
> an arbitration agreement?
>
> Eugene, do you contend that knowledge of the Sharia is not a valid limitation
> or
> only that being a Muslim is not?
>
>
> On Jan 3, 2011, at 2:32 PM, Douglas Laycock wrote:
>
>
> must know the Shari'a, commercial laws and the customs in force in the
> Kingdom
>
> --
> Prof. Steven D. Jamar vox: 202-806-8017
> Associate Director, Institute for Intellectual Property and Social Justice
> http://iipsj.org
> Howard University School of Law fax: 202-806-8567
> http://iipsj.com/SDJ/
>
>
> "Love the pitcher less and the water more."
>
>
>
> Sufi Saying
>
>
>
>
> _______________________________________________
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