I'm not sure I quite understand Eric's point. If the contract
says that Muslim arbitrators are to be chosen, but there's a dispute about
who's a Muslim, and the result is that the court "can't act," then that's
another way of saying that the contract is not enforceable by the court (since
the consequence of the court's not acting is that the contract won't be
enforced). Just as with a will that says "I leave the property to the X
church, so long as it remains true to its founding religious doctrine," a
contract that says "a Muslim arbitrator must be selected" would not be
enforceable by a secular court, so long as there's a dispute about who's Muslim.
As to the discrimination point, the discrimination rests simply
in the court's saying "you're not a Muslim, so I will not appoint you to this
position." It may not be "invidious" in the sense of reflecting a judge's
hostility to the person; but it is still discrimination.
If a police officer is told by a property owner to remove a
trespasser, the police officer can do so without discriminating based on
religion, even if the property owner's motivation stems from the trespasser's
having been ejected from the faith. The police officer doesn't care about the
trespasser's religion, and might not even know the trespasser's religion.
There is no discrimination on the police officer's part. But if a property
owner tells the police, "please eject everyone who isn't a Catholic," I don't
think the police officers can do that. Likewise with a judge being told to
appoint only Muslims.
Eugene
Eric Rassbach writes:
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 worship 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
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