I don't know about military chaplains (and I know this is a bit of a digression), but there is an interesting case before the 9th Circuit involving prison chaplains, McCollum v. CA Dept. of Corrections. Plaintiff, a Wiccan who applied to be a prison chaplain and was rejected, alleges that California prisons will only hire individuals of five faiths as chaplains: Catholic, Protestant, Jewish, Moslem, and Native American. He also argues that there are more Wiccans in California prisons than adherents of some of the other faiths for whom chaplains have been appointed.
Alan Brownstein -----Original Message----- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Monday, January 03, 2011 5:22 PM To: Law & Religion issues for Law Academics Subject: Military chaplains Does anyone actually know the current appointment system for military chaplains? A fairly high ranking officer told me that they no longer have quotas by denomination, as a result of litigation; that was either held unconstitutional or they agreed in a settlement to abandon it. The special problems of the military and its chaplains authorizes the government to do many things it could not otherwise do, but I'm not sure that appointing officers on the basis of religion is still one of them. On Mon, 3 Jan 2011 16:09:29 -0800 Steve Sanders <steve...@umich.edu> wrote: >To say that military and prison chaplains get special treatment under First >Amendment law isn't to explain why that should be so or why it should be >restricted to that context. With chaplains, the govt appoints people based on >specific religious qualifications to attend to the specific needs of an >identifiable group. Under the hypo we're dealing with here it seems to me >that's all the court is being asked to do. If it isn't objectionable in one >context, why is it in another? > >On Jan 3, 2011, at 1:31 PM, "Volokh, Eugene" <vol...@law.ucla.edu> wrote: > >> One difficulty is that we don't have much law on what constitutes a BFOQ >> where religion is concerned. But I think military (and prison) chaplaincy >> cases are generally treated very differently under the First Amendment than >> other kinds of cases, as to a wide range of First Amendment doctrines -- the >> ban on religious discrimination, the ban on religious decisions by the >> government, the ban on government funding of religious practice, and more. >> So I'm not sure the BFOQ analysis would be that helpful here, or that those >> cases are generalizable outside the military/prison context. >> >> Eugene >> >>> -----Original Message----- >>> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- >>> boun...@lists.ucla.edu] On Behalf Of Steve Sanders >>> Sent: Monday, January 03, 2011 3:28 PM >>> To: Law & Religion issues for Law Academics >>> Cc: Law & Religion issues for Law Academics >>> Subject: Re: May American court appoint only Muslim arbitrators, >>> pursuant to an arbitration agreement? >>> >>> >>> Is someone applying for a military chaplaincy required or expected >>> to have some religious qualification or membership in a religious >>> order? Could a nonbeliever who nonetheless has an extensive academic >>> knowledge of religion sue for discrimination if she's denied such >>> employment? >>> >>> On Jan 3, 2011, at 1:11 PM, "Volokh, Eugene" <vol...@law.ucla.edu> wrote: >>> >>>> I'm not sure whether BFOQ doctrine as to religion helps us much >>>> as to the >>> First Amendment analysis. That private entities aren't barred from >>> discriminating based on religion in some contexts doesn't >>> necessarily tell us, I think, that the government has an equally free hand. >>>> >>>> Eugene >>>> >>>>> -----Original Message----- >>>>> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- >>>>> boun...@lists.ucla.edu] On Behalf Of Steve Sanders >>>>> Sent: Monday, January 03, 2011 12:53 PM >>>>> To: religionlaw@lists.ucla.edu >>>>> Subject: RE: May American court appoint only Muslim arbitrators, >>>>> pursuant >>> to >>>>> an arbitration agreement? >>>>> >>>>> I recognize this isn't an employment discrimination case, but is >>>>> the constitutional problem eased if the religion of the >>>>> arbitrators could be considered a bona fide occupational >>>>> qualification? We recognize constitutional exceptions for those, right? >>>>> >>>>> Per Marc's question, presuming the contract was otherwise valid >>>>> under state law, it's not clear to me that merely appointing >>>>> arbitrators who are qualified according to the terms of a contract >>>>> amounts to a court "applying sharia law." Evidently it's the >>>>> arbitration panel, not the court, that is called on to apply >>>>> sharia law in the course of interpreting the contract. >>>>> >>>>> Generally, the whole point of arbitration is to avoid the courts >>>>> as much as possible through a private, extrajudicial mechanism for >>>>> settling disputes. Parties typically agree on arbitrators without >>>>> the involvement of a court. Thus, it seems to me that if an >>>>> arbitration agreement is properly drafted, the constitutional >>>>> issue of a court's discriminatory appointment process shouldn't >>>>> arise as a matter of design. >>>>> >>>>> Steve Sanders >>>>> >>>>> Quoting Marc Stern <ste...@ajc.org>: >>>>> >>>>>> But would this agreement be enforceable in Oklahoma ,with its ban >>>>>> on >>> courts >>>>>> applying sharia law? >>>>>> >>>>>> Marc D. Stern >>>>>> Associate General Counsel >>>>>> 165 East 56th Street >>>>>> NY NY 10022 >>>>>> >>>>>> ste...@ajc.org >>>>>> 212.891.1480 >>>>>> 646.287.2606 (cell) >>>>>> >>>>>> >>>>>> >>>>>> >>>>>> >>>>>> >>>>>> -----Original Message----- >>>>>> From: religionlaw-boun...@lists.ucla.edu >>>>>> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas >>>>>> Laycock >>>>>> Sent: Monday, January 03, 2011 02:33 >>>>>> To: Law & Religion issues for Law Academics; Eric Rassbach >>>>>> Subject: Re: May American court appoint only Muslim >>>>>> arbitrators,pursuant >>> to >>>>>> an arbitration agreement? >>>>>> >>>>>> The court could apparently comply with the contract, and avoid >>>>>> all entanglement iwth religion, by appointing three Saudis. Does >>>>>> anybody see >>> a >>>>>> problem with that? >>>>>> >>>>>> I assume that all Saudis are Muslim, or at least that the >>>>>> percentage is so high that the odds of appointing a non-Muslim Saudi are >>>>>> negligible. >>>>>> >>>>>> >>>>>> >>>>>> On Mon, 3 Jan 2011 12:34:05 -0500 Eric Rassbach >>>>>> <erassb...@becketfund.org> wrote: >>>>>>> >>>>>>> Here is the relevant provision (in translation) from the >>>>>>> case-link Eugene >>>>>> sent around: >>>>>>> >>>>>>> The Arbitrator must be a Saudi national or a Moslem foreigner >>>>>>> chosen >>>>>> amongst the members of the liberal professions or other persons. >>>>>> He may >>>>> also >>>>>> be chosen amongst state officials after agreement of the >>>>>> authority on >>> which >>>>>> he depends. Should there be several arbitrators, the Chairman >>>>>> must know >>> the >>>>>> Shari'a, commercial laws and the customs in force in the Kingdom. >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> ________________________________________ >>>>>>> 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 11:46 AM >>>>>>> To: Law & Religion issues for Law Academics >>>>>>> Subject: RE: May American court appoint only Muslim arbitrators, >>> pursuant >>>>>> to an arbitration agreement? >>>>>>> >>>>>>> I agree with Nate's neutral principles / >>>>>>> entanglement >>>>>> argument. But I wonder whether one can so easily dismiss the >>>>>> equal protection argument from the enforcement of the contract. >>>>>> The court, >>> after >>>>>> all, would have to decide who gets to perform an important and >>>>>> lucrative task based on that person's religion, whether or not >>>>>> it's merely enforcing a private contract. Of course the judge >>>>>> won't be acting based on religious animus, but he will be >>>>>> deliberately treating people differently based on religion. >>>>>>> >>>>>>> Also, is the Batson / J.E.B. line of cases relevant >>>>>>> here, >>>>>> assuming that it can be expanded to peremptories based on >>>>>> religion and >>> not >>>>>> just race or sex? (As I recall, most lower court cases that have >>>>>> considered the issue have indeed expanded Batson and J.E.B. to >>>>>> religion.) If a court may not allow a private party to challenge >>>>>> a juror based on religion, even when the judge wouldn't himself >>>>>> be discriminating based on religion, may >>> a >>>>>> court allow private party agreement to provide for selection - by >>>>>> the judge >>>>>> - of an arbitrator based on religion? >>>>>>> >>>>>>> Eugene >>>>>>> >>>>>>> From: religionlaw-boun...@lists.ucla.edu >>>>>> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Nathan >>>>>> Oman >>>>>>> Sent: Monday, January 03, 2011 7:28 AM >>>>>>> To: Law & Religion issues for Law Academics >>>>>>> Subject: Re: May American court appoint only Muslim arbitrators, >>> pursuant >>>>>> to an arbitration agreement? >>>>>>> >>>>>>> It seems difficult to find an equal protection violation if the >>>>>>> Court is >>>>>> merely enforcing the contract. It seems to me that a more likely >>>>>> constitutional objection would be that the contract cannot be >>>>>> enforced without running afoul of the neutral principles >>>>>> doctrine. Can a court make a decision about who is or is not a >>>>>> Muslim without making theological choices? Would a shia muslim >>>>>> be acceptable? A member of the nation of Islam? >>>>>>> ~~~~~~~~~~~~~~~~~~~~~~~~ >>>>>>> Nathan B. Oman >>>>>>> Associate Professor >>>>>>> William & Mary Law School >>>>>>> P.O. Box 8795 >>>>>>> Williamsburg, VA 23187 >>>>>>> (757) 221-3919 >>>>>>> >>>>>>> "I beseech you, in the bowels of Christ, think it possible you >>>>>>> may be >>>>>> mistaken." -Oliver Cromwell >>>>>>> >>>>>>> On Mon, Jan 3, 2011 at 10:06 AM, Volokh, Eugene >>>>>> <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote: >>>>>>> That's the issue lurking in In re Aramco Servs. >>>>>> >>> Co.<http://scholar.google.com/scholar_case?case=11521915190435651264 >>> >, >>>>> now >>>>>> on appeal to the Texas Supreme Court. DynCorp and Aramco Services >>>>>> (both >>>>> of >>>>>> which were at the time Delaware corporations headquartered in >>>>>> Houston, though Aramco Services is a subsidiary of Saudi >>>>>> Aramco<https://www.aramcoservices.com/about/>, the Saudi >>> government's >>>>> oil >>>>>> company) signed an agreement under which DynCorp was to create a >>>>> computer >>>>>> system (in the U.S.) and install it at Aramco's Saudi facilities. >>>>>> The contract provided that it was to be interpreted under Saudi >>>>>> law, and arbitrated under Saudi arbitration rules and >>>>>> regulations. Those rules and regulations apparently call for the >>>>>> arbitrators to be Muslim Saudi citizens. >>>>>> The trial court, however, appointed a three-arbitrator panel >>>>>> consisting of a Muslim (apparently a Saudi) and two non-Muslim >>>>>> non-Saudis. Aramco >>>>> appealed, >>>>>> arguing that (1) under the contract the arbitrators were not >>>>>> supposed to be appoi nted by a >>>>>>> court, and, (2) in the alternative, that the court erred in >>>>>>> appointing >>>>>> non-Muslim non-Saudis. >>>>>>> >>>>>>> The Texas Court of Appeals agreed with Aramco on item 1, and >>>>>>> therefore >>>>>> didn't reach item 2. But there is an interesting constitutional >>>>>> issue lurking in the background: If a contract does call for a >>>>>> court to appoint arbitrators, and provides that the arbitrators >>>>>> must be Muslims (or Jews or Catholics or what have you), may a >>>>>> court implement that provision, or does the First Amendment or >>>>>> the Equal Protection Clause bar the court - a government entity - >>>>>> from discriminating based on religion this way, even pursuant to a party >>>>>> agreement? Any thoughts on this? >>>>>>> >>>>>>> Eugene >>>>>>> >>>>>>> >>>>>>> _______________________________________________ >>>>>>> To post, send message to >>>>>> Religionlaw@lists.ucla.edu<mailto: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. >>>>>>> >>>>>>> _______________________________________________ >>>>>>> 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. >>>>>> >>>>>> Douglas Laycock >>>>>> Armistead M. Dobie Professor of Law University of Virginia Law >>>>>> School >>>>>> 580 Massie Road >>>>>> Charlottesville, VA 22903 >>>>>> 434-243-8546 >>>>>> _______________________________________________ >>>>>> 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. >>>>>> >>>>>> >>>>>> >>>>>> _______________________________________________ >>>>>> 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. >>>>>> >>>>>> >>>>>> >>>>> >>>>> >>>>> >>>>> _________________________________ >>>>> >>>>> Steve Sanders >>>>> E-mail: steve...@umich.edu >>>>> Web: http://www.stevesanders.net >>>>> _______________________________________________ >>>>> 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. >>>>> >>>> >>>> _______________________________________________ >>>> 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. >>>> >>>> >>> _______________________________________________ >>> 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. >>> >> >> _______________________________________________ >> 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. >> >> >_______________________________________________ >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. Douglas Laycock Armistead M. Dobie Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 _______________________________________________ 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. _______________________________________________ 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.
