RE: TRO against Oklahoma no use of Sharia Law
Interesting quote re the Oklahoma ban and religious arbitration: http://articles.latimes.com/2010/nov/10/opinion/la-oe-helfand-oklahoma-20101110 Rex Duncan, a Republican state representative in Oklahoma and a sponsor of the amendment, has explained that part of its purpose is to ban religious forms of arbitration: Parties would come to the courts and say we want to be bound by Islamic law and then ask the courts to enforce those agreements. That is a backdoor way to get Sharia law into courts. There ... have been some efforts, I believe, to explore bringing that to America, and it's dangerous. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Wednesday, November 10, 2010 2:09 PM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law (1) Yes, there's a 1982 case finding no standing with regard to that Arkansas law. (2) The Oklahoma law is indeed awful, not just because of the prohibition on the use of Sharia law but chiefly because of the prohibition on the use of foreign law. See http://volokh.com/2010/03/19/oklahoma-house-of-representatives-proposes-ban-on-use-of-foreign-law-in-oklahoma-courts/, where I describe the various contract, tort, and family law controversies that would be completely screwed up by this amendment. (I don't think there'll be a problem with enforcing arbitral awards, but there would be a problem in the other contexts.) -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Eric Rassbach Sent: Wednesday, November 10, 2010 10:42 AM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law One interesting parallel are blasphemy laws still on the books in several states but unenforceable under Torcaso v. Watkins. For example, the Arkansas Constitution disqualifies atheists from serving in certain public capacities: http://www.becketfund.org/index.php/article/958.html Presumably these provisions create harms identical to the ones created by the OK provision, and suffer from the same standing/ripeness issues that the Oklahoma law does, precisely because they are so clearly unenforceable. However, one interesting question that arises from the text of the Oklahoma provision (set out below) is that it says that Oklahoma state courts shall not consider international or Sharia Law. Would the word consider prevent an Oklahoma state court from enforcing an arbitral award conducted in accordance with Sharia? What about an arbitration conducted in accordance with English law? (Many international agreements provide for arbitration under English law.) What about interpreting a contract with a choice of law provision specifying English, Canadian, or French law? The Courts provided for in subsection A of this section, when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Oklahoma Constitution/wiki/index.php/Oklahoma_Constitution, the United States Code, federal regulations promulgated pursuant thereto, established common law, the Oklahoma Statutes and rules promulgated pursuant thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions. The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international or Sharia Law. The provisions of this subsection shall apply to all cases before the respective courts including, but not limited to, cases of first impression. From: religionlaw-boun...@lists.ucla.edu [religionlaw- boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Tuesday, November 09, 2010 5:41 PM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law Perhaps I'm missing something here, but I thought that Flast was limited to taxpayer lawsuits based on the spending of money pursuant to a legislative authorization. See especially Hein, but also Valley Forge. Does it really stand for the broader proposition that any citizen of a state has standing to sue based on the very existence of a statute that endorses or disapproves of religion? I would have thought not, but I'd love to hear what others have to say - again, about what standing law currently is, not what it should be. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Tuesday, November 09, 2010 2:32 PM To: Law Religion issues for Law Academics Subject: Re: TRO against Oklahoma no use of Sharia Law
RE: TRO against Oklahoma no use of Sharia Law
The quoted language may mean no more than that parties can't agree to bound by religious law and then ask a court to determine (in violation of the First Am.) what that religious law requires. Mark Scarberry Pepperdine -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Eric Rassbach Sent: Thursday, November 11, 2010 7:31 AM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law Interesting quote re the Oklahoma ban and religious arbitration: http://articles.latimes.com/2010/nov/10/opinion/la-oe-helfand-oklahoma-20101110 Rex Duncan, a Republican state representative in Oklahoma and a sponsor of the amendment, has explained that part of its purpose is to ban religious forms of arbitration: Parties would come to the courts and say we want to be bound by Islamic law and then ask the courts to enforce those agreements. That is a backdoor way to get Sharia law into courts. There ... have been some efforts, I believe, to explore bringing that to America, and it's dangerous. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Wednesday, November 10, 2010 2:09 PM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law (1) Yes, there's a 1982 case finding no standing with regard to that Arkansas law. (2) The Oklahoma law is indeed awful, not just because of the prohibition on the use of Sharia law but chiefly because of the prohibition on the use of foreign law. See http://volokh.com/2010/03/19/oklahoma-house-of-representatives-proposes-ban-on-use-of-foreign-law-in-oklahoma-courts/, where I describe the various contract, tort, and family law controversies that would be completely screwed up by this amendment. (I don't think there'll be a problem with enforcing arbitral awards, but there would be a problem in the other contexts.) -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Eric Rassbach Sent: Wednesday, November 10, 2010 10:42 AM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law One interesting parallel are blasphemy laws still on the books in several states but unenforceable under Torcaso v. Watkins. For example, the Arkansas Constitution disqualifies atheists from serving in certain public capacities: http://www.becketfund.org/index.php/article/958.html Presumably these provisions create harms identical to the ones created by the OK provision, and suffer from the same standing/ripeness issues that the Oklahoma law does, precisely because they are so clearly unenforceable. However, one interesting question that arises from the text of the Oklahoma provision (set out below) is that it says that Oklahoma state courts shall not consider international or Sharia Law. Would the word consider prevent an Oklahoma state court from enforcing an arbitral award conducted in accordance with Sharia? What about an arbitration conducted in accordance with English law? (Many international agreements provide for arbitration under English law.) What about interpreting a contract with a choice of law provision specifying English, Canadian, or French law? The Courts provided for in subsection A of this section, when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Oklahoma Constitution/wiki/index.php/Oklahoma_Constitution, the United States Code, federal regulations promulgated pursuant thereto, established common law, the Oklahoma Statutes and rules promulgated pursuant thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions. The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international or Sharia Law. The provisions of this subsection shall apply to all cases before the respective courts including, but not limited to, cases of first impression. From: religionlaw-boun...@lists.ucla.edu [religionlaw- boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Tuesday, November 09, 2010 5:41 PM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law Perhaps I'm missing something here, but I thought that Flast was limited to taxpayer lawsuits based on the spending of money pursuant to a legislative authorization. See especially Hein, but also Valley Forge. Does it really stand for the broader proposition that any citizen of a state has standing to sue
Religious arbitration
Any thoughts on whether, under current arbitration law, secular courts asked to enforce arbitration agreements may (or must) set aside the arbitration if it took place under procedural rules that call for some degree of sex discrimination? I have in mind some understandings of Orthodox Jewish rules that mandate the exclusion of the testimony of women in some (though not all) situations, and some understandings of Sharia rules that place a lower weight on the testimony of women. Relatedly, may arbitral rulings be set aside on the grounds that the arbitrators were chosen from a pool in which women are deliberately not included? I should say that I've in the past defended the propriety of religious arbitration, see http://volokh.com/posts/1202446904.shtml; and I myself would likely accept, on freedom of contract grounds, agreed-to arbitrations that apply rules that are known to the parties to be sex-discriminatory. (I realize that religious group social pressure may often push people into agreeing to arbitration agreements -- and lots of other things -- that they might in some sense not prefer, but I don't think that should be a basis for generally rejecting such agreements.) At the same time, I'm not at all sure that arbitration law shares my freedom-of-contract perspective when it comes to discriminatory rules. So I'd love to hear what others who know more than I do about this (and I'm not at all an arbitration expert) think. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark Sent: Thursday, November 11, 2010 8:07 AM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law The quoted language may mean no more than that parties can't agree to bound by religious law and then ask a court to determine (in violation of the First Am.) what that religious law requires. Mark Scarberry Pepperdine -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Eric Rassbach Sent: Thursday, November 11, 2010 7:31 AM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law Interesting quote re the Oklahoma ban and religious arbitration: http://articles.latimes.com/2010/nov/10/opinion/la-oe-helfand-oklahoma- 20101110 Rex Duncan, a Republican state representative in Oklahoma and a sponsor of the amendment, has explained that part of its purpose is to ban religious forms of arbitration: Parties would come to the courts and say we want to be bound by Islamic law and then ask the courts to enforce those agreements. That is a backdoor way to get Sharia law into courts. There ... have been some efforts, I believe, to explore bringing that to America, and it's dangerous. From: religionlaw-boun...@lists.ucla.edu [religionlaw- boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Wednesday, November 10, 2010 2:09 PM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law (1) Yes, there's a 1982 case finding no standing with regard to that Arkansas law. (2) The Oklahoma law is indeed awful, not just because of the prohibition on the use of Sharia law but chiefly because of the prohibition on the use of foreign law. See http://volokh.com/2010/03/19/oklahoma- house-of-representatives-proposes-ban-on-use-of-foreign-law-in-oklahoma- courts/, where I describe the various contract, tort, and family law controversies that would be completely screwed up by this amendment. (I don't think there'll be a problem with enforcing arbitral awards, but there would be a problem in the other contexts.) -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Eric Rassbach Sent: Wednesday, November 10, 2010 10:42 AM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law One interesting parallel are blasphemy laws still on the books in several states but unenforceable under Torcaso v. Watkins. For example, the Arkansas Constitution disqualifies atheists from serving in certain public capacities: http://www.becketfund.org/index.php/article/958.html Presumably these provisions create harms identical to the ones created by the OK provision, and suffer from the same standing/ripeness issues that the Oklahoma law does, precisely because they are so clearly unenforceable. However, one interesting question that arises from the text of the Oklahoma provision (set out below) is that it says that Oklahoma state courts shall not consider international or Sharia Law. Would the word consider prevent an Oklahoma state court from
RE: Religious arbitration
The Section on Jewish Law is doing a program on religious arbitration at the AALS in January. Folks interested in this thread may be interested in that program. I am supposed to speak at that program, which means I have to learn a lot about religious arbitration between now and then. So keep these cards and letters coming friends and neighbors. Shameless plugs definitely requested, online or off. Douglas Laycock Armistead M. Dobie Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Thursday, November 11, 2010 11:20 AM To: Law Religion issues for Law Academics Subject: Religious arbitration Any thoughts on whether, under current arbitration law, secular courts asked to enforce arbitration agreements may (or must) set aside the arbitration if it took place under procedural rules that call for some degree of sex discrimination? I have in mind some understandings of Orthodox Jewish rules that mandate the exclusion of the testimony of women in some (though not all) situations, and some understandings of Sharia rules that place a lower weight on the testimony of women. Relatedly, may arbitral rulings be set aside on the grounds that the arbitrators were chosen from a pool in which women are deliberately not included? I should say that I've in the past defended the propriety of religious arbitration, see http://volokh.com/posts/1202446904.shtml; and I myself would likely accept, on freedom of contract grounds, agreed-to arbitrations that apply rules that are known to the parties to be sex-discriminatory. (I realize that religious group social pressure may often push people into agreeing to arbitration agreements -- and lots of other things -- that they might in some sense not prefer, but I don't think that should be a basis for generally rejecting such agreements.) At the same time, I'm not at all sure that arbitration law shares my freedom-of-contract perspective when it comes to discriminatory rules. So I'd love to hear what others who know more than I do about this (and I'm not at all an arbitration expert) think. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark Sent: Thursday, November 11, 2010 8:07 AM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law The quoted language may mean no more than that parties can't agree to bound by religious law and then ask a court to determine (in violation of the First Am.) what that religious law requires. Mark Scarberry Pepperdine -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Eric Rassbach Sent: Thursday, November 11, 2010 7:31 AM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law Interesting quote re the Oklahoma ban and religious arbitration: http://articles.latimes.com/2010/nov/10/opinion/la-oe-helfand-oklahoma- 20101110 Rex Duncan, a Republican state representative in Oklahoma and a sponsor of the amendment, has explained that part of its purpose is to ban religious forms of arbitration: Parties would come to the courts and say we want to be bound by Islamic law and then ask the courts to enforce those agreements. That is a backdoor way to get Sharia law into courts. There ... have been some efforts, I believe, to explore bringing that to America, and it's dangerous. From: religionlaw-boun...@lists.ucla.edu [religionlaw- boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Wednesday, November 10, 2010 2:09 PM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law (1) Yes, there's a 1982 case finding no standing with regard to that Arkansas law. (2) The Oklahoma law is indeed awful, not just because of the prohibition on the use of Sharia law but chiefly because of the prohibition on the use of foreign law. See http://volokh.com/2010/03/19/oklahoma- house-of-representatives-proposes-ban-on-use-of-foreign-law-in-oklahoma- courts/, where I describe the various contract, tort, and family law controversies that would be completely screwed up by this amendment. (I don't think there'll be a problem with enforcing arbitral awards, but there would be a problem in the other contexts.) -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Eric Rassbach Sent: Wednesday, November 10, 2010 10:42 AM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law
Why We Have Standing Rules
The column below is from an online religion series edited by Martin Marty at the University of Chicago. I assume the author is a religion scholar and not a lawyer. But he has a very interesting description, short and nontechnical, of what sound like citizen suit provisions in Islamic law. I am confident that no list member who is frustrated with the lack of standing in Oklahoma is proposing anything remotely like this. But this is a reminder of the dangers of the other extreme. And maybe some hint of what CAIR was thinking when it rushed into the Oklahoma lawsuit. - Forwarded message from divsighti...@gmail.com - Date: Thu, 11 Nov 2010 07:53:42 -0600 From: Sightings divsighti...@gmail.com Subject: *Sightings* 11/11/2010 - Religion vs. Fiction in Egypt To: sighti...@lists.uchicago.edu *Sightings* 11/11/2010 *Religion vs. Fiction in Egypt* - M. Lynx Qualey Two years ago, a relatively unknown Egyptian professor of Arabic and Islamic studies took home the second annual International Prize for Arabic Fiction—or “Arabic Booker”—for his novel *Azazel*. It was only while in his forties that Dr. Youssef Ziedan, who has written 50-some books about Sufism, Islamic philosophy, and Arabic medicine, turned his attention to fiction. He published his second novel, *Azazel* (sometimes translated as *Beelzebub*), at the age of 50. Ziedan’s prize-winning book purports to be the memoirs of a passionate fifth-century monk named Hypa, whose scrolls are unearthed by a twentieth-century translator. In writing *Azazel, *Ziedan became one of a few contemporary Egyptian novelists to tackle religion in his literary work. After all, writing about religion has had its dangers: The newspaper *Al-**Youm Al-Saba’a’s *website was hacked because of their reported intention to publish Anis Deghreidi’s fictional *Trials of the Prophet Muhammad **earlier this year*. Authors have had their books preemptively censored by publishers, such as Mohamed Mansi Qandil’s lovely *Moon over Samarqand, *which has since been printed in full. Others have been dragged to court by fellow citizens such as author Nawal El-Saadawi. It is thus not surprising that Ziedan and *Azazel* have caused controversy. Members of Egypt’s Coptic Christian community, including the outspoken Bishop Bishoy, have written extensive rebuttals to the 2008 fictional work. Coptic Christians make up most of Egypt’s Christian population, the largest in the region. The word Copt once simply meant Egyptian, and the current Copts remained Christian during Egypt’s shift to Arab-Muslim rule. Exact population figures are not known, but the most commonly given figure is six to eight million Copts among a total population of 80 million Egyptians. It was late this spring when a group of Coptic Christian lawyers filed a * hesba* lawsuit against Ziedan demanding a five-year prison sentence. They claim that, in statements made during a symposium, the author defamed Christianity. A group of Islamist lawyers also filed suit, because of Ziedan’s statements about religion. Such *hesba* cases, through which citizens can file suit against other citizens, have become increasingly popular in Egypt. The attorney Nabih El-Wahsh—according to a suit filed against *him*—has filed more than a thousand such cases. Most of these have reportedly been against TV producers, filmmakers, and authors. It was El-Wahsh who dragged prominent novelist Nawal El-Saadawi and her husband, Sherif Hetata, to court in 2001, seeking to divorce the couple—against their will—on the grounds that El-Saadawi had expressed views that made her an apostate. El-Wahsh filed suit against El-Saadawi a second time in 2007, seeking to have her Egyptian citizenship annulled because of her views on religion. Fortunately, these cases, like nearly all those filed by El-Wahsh, were dismissed. *Hesba* is a long-established principle in Islamic jurisprudence. *Guardian *reporter Brian Whitaker quotes Egyptian scholar Gamal El-Banna as saying * hesba* was originally “used to promote the good and criticize the bad. Every individual in an Islamic society is responsible for the actions of the society.” Lately, however, *hesba* cases have been used by interest groups, often to intimidate novelists, filmmakers, and poets. One was recently brought by a group called “Lawyers without Shackles” against the editors of a new edition of *1,001 Nights. *The case has since been dismissed, as has the Islamists’ case against Ziedan. The Christian lawyers’ case against Ziedan, meanwhile, is still under consideration. When I recently told the author *mish mumkin *(it’s not possible) that he could be sent to jail because of this case, Ziedan’s publisher, Ibrahim El-Moallem, agreed. But Ziedan did not: “*Mumkin*,” he said. “In Egypt, anything is possible.” It is not really the contents of the book that matter but rather Ziedan’s broader reputation and general outspokenness. Most critics agree with
RE: TRO against Oklahoma no use of Sharia Law
In the video Prof. Helfand is apparently quoting, Rep. Duncan refers to religious arbitration immediately before he says the quoted language: http://prawfsblawg.blogs.com/prawfsblawg/2010/11/religious-arbitration-and-the-new-multiculturalism.html From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark [mark.scarbe...@pepperdine.edu] Sent: Thursday, November 11, 2010 11:06 AM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law The quoted language may mean no more than that parties can't agree to bound by religious law and then ask a court to determine (in violation of the First Am.) what that religious law requires. Mark Scarberry Pepperdine -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Eric Rassbach Sent: Thursday, November 11, 2010 7:31 AM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law Interesting quote re the Oklahoma ban and religious arbitration: http://articles.latimes.com/2010/nov/10/opinion/la-oe-helfand-oklahoma-20101110 Rex Duncan, a Republican state representative in Oklahoma and a sponsor of the amendment, has explained that part of its purpose is to ban religious forms of arbitration: Parties would come to the courts and say we want to be bound by Islamic law and then ask the courts to enforce those agreements. That is a backdoor way to get Sharia law into courts. There ... have been some efforts, I believe, to explore bringing that to America, and it's dangerous. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Wednesday, November 10, 2010 2:09 PM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law (1) Yes, there's a 1982 case finding no standing with regard to that Arkansas law. (2) The Oklahoma law is indeed awful, not just because of the prohibition on the use of Sharia law but chiefly because of the prohibition on the use of foreign law. See http://volokh.com/2010/03/19/oklahoma-house-of-representatives-proposes-ban-on-use-of-foreign-law-in-oklahoma-courts/, where I describe the various contract, tort, and family law controversies that would be completely screwed up by this amendment. (I don't think there'll be a problem with enforcing arbitral awards, but there would be a problem in the other contexts.) -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Eric Rassbach Sent: Wednesday, November 10, 2010 10:42 AM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law One interesting parallel are blasphemy laws still on the books in several states but unenforceable under Torcaso v. Watkins. For example, the Arkansas Constitution disqualifies atheists from serving in certain public capacities: http://www.becketfund.org/index.php/article/958.html Presumably these provisions create harms identical to the ones created by the OK provision, and suffer from the same standing/ripeness issues that the Oklahoma law does, precisely because they are so clearly unenforceable. However, one interesting question that arises from the text of the Oklahoma provision (set out below) is that it says that Oklahoma state courts shall not consider international or Sharia Law. Would the word consider prevent an Oklahoma state court from enforcing an arbitral award conducted in accordance with Sharia? What about an arbitration conducted in accordance with English law? (Many international agreements provide for arbitration under English law.) What about interpreting a contract with a choice of law provision specifying English, Canadian, or French law? The Courts provided for in subsection A of this section, when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Oklahoma Constitution/wiki/index.php/Oklahoma_Constitution, the United States Code, federal regulations promulgated pursuant thereto, established common law, the Oklahoma Statutes and rules promulgated pursuant thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions. The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international or Sharia Law. The provisions of this subsection shall apply to all cases before the respective courts including, but not limited to, cases of first impression. From:
RE: TRO against Oklahoma no use of Sharia Law
But would the amendment actually apply to judicial enforcement of religious arbitrations -- or arbitrations under the law of foreign countries -- so long as the court itself was only applying secular American law and not religious or foreign law? Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Eric Rassbach Sent: Thursday, November 11, 2010 9:05 AM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law In the video Prof. Helfand is apparently quoting, Rep. Duncan refers to religious arbitration immediately before he says the quoted language: http://prawfsblawg.blogs.com/prawfsblawg/2010/11/religious-arbitration- and-the-new-multiculturalism.html ___ 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.
Re: Religious arbitration
The question seems as likely to arise when one party to the agreement seeks a judicial rather than an arbitral forum, the other party moves to compel arbitration, and the suing party opposes enforcement of the arbitration clause on the ground that the arbitral procedure, as structured, is unconscionable or otherwise unenforceable. See the briefs and argument in ATT Mobility, LLC v. Concepcion, recently argued in SCOTUS for a discussion of whether courts may on unconscionability grounds refuse to enforce arbitration agreements. http://www.scotusblog.com/case-files/cases/att-mobility-v-concepcion/ I think the more interesting question is whether a court must decline to enforce the agreement, since the answer would seem to have a great deal to do with the state action doctrine in its application to the equal protection rights of excluded witnesses. Were the witness exclusion racially based, 42 USC 1981 (a) likely would make it judicially unenforceable without regard to the resolution of the state action question, but although race is broadly construed under section 1981, its provisions have never been construed to reach sex discrimination. Michael R. Masinter 3305 College Avenue Professor of Law Fort Lauderdale, FL 33314 Nova Southeastern University 954.262.6151 (voice) masin...@nova.edu954.262.3835 (fax) Quoting Volokh, Eugene vol...@law.ucla.edu: Any thoughts on whether, under current arbitration law, secular courts asked to enforce arbitration agreements may (or must) set aside the arbitration if it took place under procedural rules that call for some degree of sex discrimination? I have in mind some understandings of Orthodox Jewish rules that mandate the exclusion of the testimony of women in some (though not all) situations, and some understandings of Sharia rules that place a lower weight on the testimony of women. Relatedly, may arbitral rulings be set aside on the grounds that the arbitrators were chosen from a pool in which women are deliberately not included? I should say that I've in the past defended the propriety of religious arbitration, see http://volokh.com/posts/1202446904.shtml; and I myself would likely accept, on freedom of contract grounds, agreed-to arbitrations that apply rules that are known to the parties to be sex-discriminatory. (I realize that religious group social pressure may often push people into agreeing to arbitration agreements -- and lots of other things -- that they might in some sense not prefer, but I don't think that should be a basis for generally rejecting such agreements.) At the same time, I'm not at all sure that arbitration law shares my freedom-of-contract perspective when it comes to discriminatory rules. So I'd love to hear what others who know more than I do about this (and I'm not at all an arbitration expert) think. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark Sent: Thursday, November 11, 2010 8:07 AM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law The quoted language may mean no more than that parties can't agree to bound by religious law and then ask a court to determine (in violation of the First Am.) what that religious law requires. Mark Scarberry Pepperdine -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Eric Rassbach Sent: Thursday, November 11, 2010 7:31 AM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law Interesting quote re the Oklahoma ban and religious arbitration: http://articles.latimes.com/2010/nov/10/opinion/la-oe-helfand-oklahoma- 20101110 Rex Duncan, a Republican state representative in Oklahoma and a sponsor of the amendment, has explained that part of its purpose is to ban religious forms of arbitration: Parties would come to the courts and say we want to be bound by Islamic law and then ask the courts to enforce those agreements. That is a backdoor way to get Sharia law into courts. There ... have been some efforts, I believe, to explore bringing that to America, and it's dangerous. From: religionlaw-boun...@lists.ucla.edu [religionlaw- boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Wednesday, November 10, 2010 2:09 PM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law (1) Yes, there's a 1982 case finding no standing with regard to that Arkansas law. (2) The Oklahoma law is indeed awful, not just because of the prohibition on the use of Sharia law but chiefly because of the
RE: Religious arbitration
I'm not sure whether 42 USC 1981 would apply to arbitral tribunals' decisions about which witnesses to consider; but if it does, I wonder how it would apply to Beth Dins. As I understand it, certain kinds of witnesses before those tribunals must be adult, male, Sabbath observing Jews. That is an age, sex, and religion classification, but also, I take it, an ethnic classification: A Sabbath-observing child of a Jewish mother would qualify, but a Sabbath-observing child of a non-Jewish mother would not qualify, unless he had converted in a way that the tribunal accepts -- and this is so even if the actual religious beliefs of the two people were identical. And as I understand it race in 42 USC 1981 1982 has been interpreted (consistently with late 1800s practice) to include ethnicity. Eugene Michael Masinter writes: The question seems as likely to arise when one party to the agreement seeks a judicial rather than an arbitral forum, the other party moves to compel arbitration, and the suing party opposes enforcement of the arbitration clause on the ground that the arbitral procedure, as structured, is unconscionable or otherwise unenforceable. See the briefs and argument in ATT Mobility, LLC v. Concepcion, recently argued in SCOTUS for a discussion of whether courts may on unconscionability grounds refuse to enforce arbitration agreements. http://www.scotusblog.com/case-files/cases/att-mobility-v-concepcion/ I think the more interesting question is whether a court must decline to enforce the agreement, since the answer would seem to have a great deal to do with the state action doctrine in its application to the equal protection rights of excluded witnesses. Were the witness exclusion racially based, 42 USC 1981 (a) likely would make it judicially unenforceable without regard to the resolution of the state action question, but although race is broadly construed under section 1981, its provisions have never been construed to reach sex discrimination. ___ 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.
RE: Religious arbitration
I have not seen the question litigated, and because the arbitral parties are the only parties likely to raise the witness's rights, the absence of litigation is not surprising. But racially based witness disabilities were a badge or incident of servitude, and therefore within the reach of congressional legislative power under the thirteenth amendment, and the textual expansion of section 1981 in the Civil Rights Act of 1991 to private conduct would seem to reach judicial enforcement of such agreements. Although race is broadly construed under section 1981, the rationale for the broad construction is that historically, animus based discrimination arises from the discriminator's and society's treatment of ethnicity as equivalent to race. Whether that rationale requires treatment of religiously based discrimination as ethnic and racial discrimination if its roots are not based on animus but rather on religious doctrine is also an interesting question; I don't think Shaare Tefila v. Cobb answers that question. In any event, I think section 1981 (a) and (c) do make the argument for non-enforcement easier when the exclusion is race rather than sex based. Michael R. Masinter 3305 College Avenue Professor of Law Fort Lauderdale, FL 33314 Nova Southeastern University 954.262.6151 (voice) masin...@nova.edu954.262.3835 (fax) Quoting Volokh, Eugene vol...@law.ucla.edu: I'm not sure whether 42 USC 1981 would apply to arbitral tribunals' decisions about which witnesses to consider; but if it does, I wonder how it would apply to Beth Dins. As I understand it, certain kinds of witnesses before those tribunals must be adult, male, Sabbath observing Jews. That is an age, sex, and religion classification, but also, I take it, an ethnic classification: A Sabbath-observing child of a Jewish mother would qualify, but a Sabbath-observing child of a non-Jewish mother would not qualify, unless he had converted in a way that the tribunal accepts -- and this is so even if the actual religious beliefs of the two people were identical. And as I understand it race in 42 USC 1981 1982 has been interpreted (consistently with late 1800s practice) to include ethnicity. Eugene Michael Masinter writes: The question seems as likely to arise when one party to the agreement seeks a judicial rather than an arbitral forum, the other party moves to compel arbitration, and the suing party opposes enforcement of the arbitration clause on the ground that the arbitral procedure, as structured, is unconscionable or otherwise unenforceable. See the briefs and argument in ATT Mobility, LLC v. Concepcion, recently argued in SCOTUS for a discussion of whether courts may on unconscionability grounds refuse to enforce arbitration agreements. http://www.scotusblog.com/case-files/cases/att-mobility-v-concepcion/ I think the more interesting question is whether a court must decline to enforce the agreement, since the answer would seem to have a great deal to do with the state action doctrine in its application to the equal protection rights of excluded witnesses. Were the witness exclusion racially based, 42 USC 1981 (a) likely would make it judicially unenforceable without regard to the resolution of the state action question, but although race is broadly construed under section 1981, its provisions have never been construed to reach sex discrimination. ___ 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.
RE: TRO against Oklahoma no use of Sharia Law
Wouldn't that depend on whether consider and look to mean something broader than apply? And if one party challenged enforcement of the arbitration clause as unconscionable or involuntary based on the use of religious law, would deciding that question require a court to consider religious law? From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Thursday, November 11, 2010 12:14 PM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law But would the amendment actually apply to judicial enforcement of religious arbitrations -- or arbitrations under the law of foreign countries -- so long as the court itself was only applying secular American law and not religious or foreign law? Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Eric Rassbach Sent: Thursday, November 11, 2010 9:05 AM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law In the video Prof. Helfand is apparently quoting, Rep. Duncan refers to religious arbitration immediately before he says the quoted language: http://prawfsblawg.blogs.com/prawfsblawg/2010/11/religious-arbitration- and-the-new-multiculturalism.html ___ 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.
RE: TRO against Oklahoma no use of Sharia Law
Eric Rassbach writes: Wouldn't that depend on whether consider and look to mean something broader than apply? My sense is that one advantage of arbitration is that courts generally need not consider or look to the underlying law. As I understand it, that's what happens in intrachurch disputes, when courts defer to the decision of the authorized church tribunal -- not a traditional arbitration, I realize, but close to it. And if one party challenged enforcement of the arbitration clause as unconscionable or involuntary based on the use of religious law, would deciding that question require a court to consider religious law? I take it that if the claim required deciding what religious law should actually have been applied, the First Amendment would bar a secular court from resolving the claim. But do you mean that it would have consider religious law to decide whether it actually called for (say) the application of sex discriminatory rules? I would think that even there the court wouldn't actually consider the law as such, but just hear testimony -- from instance, from the arbitral tribunal's judges, or from the parties -- about what procedures were actually followed by the tribunal. Or am I missing something? From: religionlaw-boun...@lists.ucla.edu [religionlaw- boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Thursday, November 11, 2010 12:14 PM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law But would the amendment actually apply to judicial enforcement of religious arbitrations -- or arbitrations under the law of foreign countries -- so long as the court itself was only applying secular American law and not religious or foreign law? Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Eric Rassbach Sent: Thursday, November 11, 2010 9:05 AM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law In the video Prof. Helfand is apparently quoting, Rep. Duncan refers to religious arbitration immediately before he says the quoted language: http://prawfsblawg.blogs.com/prawfsblawg/2010/11/religious-arbitration- and-the-new-multiculturalism.html ___ 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.
RE: Religious arbitration
Eugene: I do not think there is a witness limitation for a Bet Din. Only observant Jewish men can serve on an orthodox bet din -- a reform or conservative bet din is more flexible * Paul Finkelman, Ph.D. President William McKinley Distinguished Professor of Law Albany Law School 80 New Scotland Avenue Albany, NY 12208 518-445-3386 (p) 518-445-3363 (f) paul.finkel...@albanylaw.edu www.paulfinkelman.com * From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Thursday, November 11, 2010 12:22 PM To: Law Religion issues for Law Academics Subject: RE: Religious arbitration I'm not sure whether 42 USC 1981 would apply to arbitral tribunals' decisions about which witnesses to consider; but if it does, I wonder how it would apply to Beth Dins. As I understand it, certain kinds of witnesses before those tribunals must be adult, male, Sabbath observing Jews. That is an age, sex, and religion classification, but also, I take it, an ethnic classification: A Sabbath-observing child of a Jewish mother would qualify, but a Sabbath-observing child of a non-Jewish mother would not qualify, unless he had converted in a way that the tribunal accepts -- and this is so even if the actual religious beliefs of the two people were identical. And as I understand it race in 42 USC 1981 1982 has been interpreted (consistently with late 1800s practice) to include ethnicity. Eugene Michael Masinter writes: The question seems as likely to arise when one party to the agreement seeks a judicial rather than an arbitral forum, the other party moves to compel arbitration, and the suing party opposes enforcement of the arbitration clause on the ground that the arbitral procedure, as structured, is unconscionable or otherwise unenforceable. See the briefs and argument in ATT Mobility, LLC v. Concepcion, recently argued in SCOTUS for a discussion of whether courts may on unconscionability grounds refuse to enforce arbitration agreements. http://www.scotusblog.com/case-files/cases/att-mobility-v-concepcion/ I think the more interesting question is whether a court must decline to enforce the agreement, since the answer would seem to have a great deal to do with the state action doctrine in its application to the equal protection rights of excluded witnesses. Were the witness exclusion racially based, 42 USC 1981 (a) likely would make it judicially unenforceable without regard to the resolution of the state action question, but although race is broadly construed under section 1981, its provisions have never been construed to reach sex discrimination. ___ 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.
RE: Religious arbitration
I'm sure practices vary. But as I understand it, there are limitations on witnesses imposed in some streams of Judaism, at least in some contexts, see, e.g., http://www.rabbinicalassembly.org/teshuvot/docs/20052010/mackler_women_witnesses.pdf, speaking of the rejection of women's witnessing by some Conservative and virtually all Orthodox rabbis. (Part of that paper refers to witnessing of documents, but I understand there are similar rules to being witnesses before Beth Dins.) A professor who specializes in Jewish Law confirmed that for me in conversation, though stressing that the matter does not often come up. I have likewise seen statements that non-Jews and non-Sabbath-observing Jews are also disqualified as witnesses in many contexts. But I would happily defer to those who are expert in Jewish law on this. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Finkelman, Paul paul.finkel...@albanylaw.edu Sent: Thursday, November 11, 2010 10:11 AM To: Law Religion issues for Law Academics Subject: RE: Religious arbitration Eugene: I do not think there is a witness limitation for a Bet Din. Only observant Jewish men can serve on an orthodox bet din -- a reform or conservative bet din is more flexible * Paul Finkelman, Ph.D. President William McKinley Distinguished Professor of Law Albany Law School 80 New Scotland Avenue Albany, NY 12208 518-445-3386 (p) 518-445-3363 (f) paul.finkel...@albanylaw.edu www.paulfinkelman.com * From: religionlaw-boun...@lists.ucla.edu [religionlaw- boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Thursday, November 11, 2010 12:22 PM To: Law Religion issues for Law Academics Subject: RE: Religious arbitration I'm not sure whether 42 USC 1981 would apply to arbitral tribunals' decisions about which witnesses to consider; but if it does, I wonder how it would apply to Beth Dins. As I understand it, certain kinds of witnesses before those tribunals must be adult, male, Sabbath observing Jews. That is an age, sex, and religion classification, but also, I take it, an ethnic classification: A Sabbath-observing child of a Jewish mother would qualify, but a Sabbath-observing child of a non-Jewish mother would not qualify, unless he had converted in a way that the tribunal accepts -- and this is so even if the actual religious beliefs of the two people were identical. And as I understand it race in 42 USC 1981 1982 has been interpreted (consistently with late 1800s practice) to include ethnicity. Eugene Michael Masinter writes: The question seems as likely to arise when one party to the agreement seeks a judicial rather than an arbitral forum, the other party moves to compel arbitration, and the suing party opposes enforcement of the arbitration clause on the ground that the arbitral procedure, as structured, is unconscionable or otherwise unenforceable. See the briefs and argument in ATT Mobility, LLC v. Concepcion, recently argued in SCOTUS for a discussion of whether courts may on unconscionability grounds refuse to enforce arbitration agreements. http://www.scotusblog.com/case-files/cases/att-mobility-v-concepcion/ I think the more interesting question is whether a court must decline to enforce the agreement, since the answer would seem to have a great deal to do with the state action doctrine in its application to the equal protection rights of excluded witnesses. Were the witness exclusion racially based, 42 USC 1981 (a) likely would make it judicially unenforceable without regard to the resolution of the state action question, but although race is broadly construed under section 1981, its provisions have never been construed to reach sex discrimination. ___ 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
RE: TRO against Oklahoma no use of Sharia Law
Let's say that an arbitration clause says that the case shall be decided in accordance with Islamic law as determined by the Texas Islamic Court. One party sues in Oklahoma state court. The defendant asks the court to stop the state court proceedings and enforce the arbitration clause. The plaintiff says the arbitration clause is unenforceable because some substantive and procedural aspects of Islamic law as typically determined by the Texas Islamic Court are unconscionable/against public policy. Would the court have to consider or look to Sharia to decide the enforceability question? An analogy might be an adequate alternative review on a forum non conveniens motion; courts have had to consider, for example, whether Saudi courts are adequate alternative fora given the lesser weight given to the testimony of women and non-Muslims. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Thursday, November 11, 2010 1:09 PM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law Eric Rassbach writes: Wouldn't that depend on whether consider and look to mean something broader than apply? My sense is that one advantage of arbitration is that courts generally need not consider or look to the underlying law. As I understand it, that's what happens in intrachurch disputes, when courts defer to the decision of the authorized church tribunal -- not a traditional arbitration, I realize, but close to it. And if one party challenged enforcement of the arbitration clause as unconscionable or involuntary based on the use of religious law, would deciding that question require a court to consider religious law? I take it that if the claim required deciding what religious law should actually have been applied, the First Amendment would bar a secular court from resolving the claim. But do you mean that it would have consider religious law to decide whether it actually called for (say) the application of sex discriminatory rules? I would think that even there the court wouldn't actually consider the law as such, but just hear testimony -- from instance, from the arbitral tribunal's judges, or from the parties -- about what procedures were actually followed by the tribunal. Or am I missing something? From: religionlaw-boun...@lists.ucla.edu [religionlaw- boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Thursday, November 11, 2010 12:14 PM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law But would the amendment actually apply to judicial enforcement of religious arbitrations -- or arbitrations under the law of foreign countries -- so long as the court itself was only applying secular American law and not religious or foreign law? Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Eric Rassbach Sent: Thursday, November 11, 2010 9:05 AM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law In the video Prof. Helfand is apparently quoting, Rep. Duncan refers to religious arbitration immediately before he says the quoted language: http://prawfsblawg.blogs.com/prawfsblawg/2010/11/religious-arbitration- and-the-new-multiculturalism.html ___ 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
Re: TRO against Oklahoma no use of Sharia Law
What are the arguments for enforcing religious arbitration agreements or disputes when religions have their own courts? Marci Sent from my Verizon Wireless BlackBerry -Original Message- From: Eric Rassbach erassb...@becketfund.org Sender: religionlaw-boun...@lists.ucla.edu Date: Thu, 11 Nov 2010 13:49:19 To: Law Religion issues for Law Academicsreligionlaw@lists.ucla.edu Reply-To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Subject: RE: TRO against Oklahoma no use of Sharia Law Let's say that an arbitration clause says that the case shall be decided in accordance with Islamic law as determined by the Texas Islamic Court. One party sues in Oklahoma state court. The defendant asks the court to stop the state court proceedings and enforce the arbitration clause. The plaintiff says the arbitration clause is unenforceable because some substantive and procedural aspects of Islamic law as typically determined by the Texas Islamic Court are unconscionable/against public policy. Would the court have to consider or look to Sharia to decide the enforceability question? An analogy might be an adequate alternative review on a forum non conveniens motion; courts have had to consider, for example, whether Saudi courts are adequate alternative fora given the lesser weight given to the testimony of women and non-Muslims. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Thursday, November 11, 2010 1:09 PM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law Eric Rassbach writes: Wouldn't that depend on whether consider and look to mean something broader than apply? My sense is that one advantage of arbitration is that courts generally need not consider or look to the underlying law. As I understand it, that's what happens in intrachurch disputes, when courts defer to the decision of the authorized church tribunal -- not a traditional arbitration, I realize, but close to it. And if one party challenged enforcement of the arbitration clause as unconscionable or involuntary based on the use of religious law, would deciding that question require a court to consider religious law? I take it that if the claim required deciding what religious law should actually have been applied, the First Amendment would bar a secular court from resolving the claim. But do you mean that it would have consider religious law to decide whether it actually called for (say) the application of sex discriminatory rules? I would think that even there the court wouldn't actually consider the law as such, but just hear testimony -- from instance, from the arbitral tribunal's judges, or from the parties -- about what procedures were actually followed by the tribunal. Or am I missing something? From: religionlaw-boun...@lists.ucla.edu [religionlaw- boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Thursday, November 11, 2010 12:14 PM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law But would the amendment actually apply to judicial enforcement of religious arbitrations -- or arbitrations under the law of foreign countries -- so long as the court itself was only applying secular American law and not religious or foreign law? Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Eric Rassbach Sent: Thursday, November 11, 2010 9:05 AM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law In the video Prof. Helfand is apparently quoting, Rep. Duncan refers to religious arbitration immediately before he says the quoted language: http://prawfsblawg.blogs.com/prawfsblawg/2010/11/religious-arbitration- and-the-new-multiculturalism.html ___ 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
RE: TRO against Oklahoma no use of Sharia Law
That's an excellent question, but wouldn't there be a First Amendment problem here even in the absence of the Oklahoma provision? If the court has to decide what Islamic law really calls for, then that, I think, would involve a secular court impermissible deciding a religious question. On the other hand, if the court simply accepts testimony that the Texas Islamic Court actually devalues the testimony of women witnesses (to take one example of a possible challenge), or for that matter refuses to hear certain kinds of testimony regardless of the witness's sex -- as I understand it, an arbitration may sometimes be set aside on the grounds that an arbitrator simply refused to consider certain evidence -- then I don't think that would violate the no religious decisions principle. The court won't be considering what Islamic law really means, but only what procedures this tribunal is applying. But for the same reason that this is consistent with the First Amendment, wouldn't it also be consistent with the Oklahoma provision (especially if ambiguity in the provision is interpreted to avoid constitutional doubts)? At that point, the court isn't consider[ing] ... Sharia law, but just hearing testimony about which particular procedures this tribunal was usin! g. Eugene Eric Rassbach writes: Let's say that an arbitration clause says that the case shall be decided in accordance with Islamic law as determined by the Texas Islamic Court. One party sues in Oklahoma state court. The defendant asks the court to stop the state court proceedings and enforce the arbitration clause. The plaintiff says the arbitration clause is unenforceable because some substantive and procedural aspects of Islamic law as typically determined by the Texas Islamic Court are unconscionable/against public policy. Would the court have to consider or look to Sharia to decide the enforceability question? An analogy might be an adequate alternative review on a forum non conveniens motion; courts have had to consider, for example, whether Saudi courts are adequate alternative fora given the lesser weight given to the testimony of women and non-Muslims. ___ 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.
Re: TRO against Oklahoma no use of Sharia Law
For many agreements to arbitrate, the Federal Arbitration Act is the argument for enforcement; there is nothing in the FAA that would exempt agreements that provide for a religiously based arbitral forum. For others, analogous state statutes are the argument for enforcement. Michael R. Masinter 3305 College Avenue Professor of Law Fort Lauderdale, FL 33314 Nova Southeastern University 954.262.6151 (voice) masin...@nova.edu954.262.3835 (fax) Quoting hamilto...@aol.com: What are the arguments for enforcing religious arbitration agreements or disputes when religions have their own courts? Marci Sent from my Verizon Wireless BlackBerry -Original Message- From: Eric Rassbach erassb...@becketfund.org Sender: religionlaw-boun...@lists.ucla.edu Date: Thu, 11 Nov 2010 13:49:19 To: Law Religion issues for Law Academicsreligionlaw@lists.ucla.edu Reply-To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Subject: RE: TRO against Oklahoma no use of Sharia Law Let's say that an arbitration clause says that the case shall be decided in accordance with Islamic law as determined by the Texas Islamic Court. One party sues in Oklahoma state court. The defendant asks the court to stop the state court proceedings and enforce the arbitration clause. The plaintiff says the arbitration clause is unenforceable because some substantive and procedural aspects of Islamic law as typically determined by the Texas Islamic Court are unconscionable/against public policy. Would the court have to consider or look to Sharia to decide the enforceability question? An analogy might be an adequate alternative review on a forum non conveniens motion; courts have had to consider, for example, whether Saudi courts are adequate alternative fora given the lesser weight given to the testimony of women and non-Muslims. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Thursday, November 11, 2010 1:09 PM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law Eric Rassbach writes: Wouldn't that depend on whether consider and look to mean something broader than apply? My sense is that one advantage of arbitration is that courts generally need not consider or look to the underlying law. As I understand it, that's what happens in intrachurch disputes, when courts defer to the decision of the authorized church tribunal -- not a traditional arbitration, I realize, but close to it. And if one party challenged enforcement of the arbitration clause as unconscionable or involuntary based on the use of religious law, would deciding that question require a court to consider religious law? I take it that if the claim required deciding what religious law should actually have been applied, the First Amendment would bar a secular court from resolving the claim. But do you mean that it would have consider religious law to decide whether it actually called for (say) the application of sex discriminatory rules? I would think that even there the court wouldn't actually consider the law as such, but just hear testimony -- from instance, from the arbitral tribunal's judges, or from the parties -- about what procedures were actually followed by the tribunal. Or am I missing something? From: religionlaw-boun...@lists.ucla.edu [religionlaw- boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Thursday, November 11, 2010 12:14 PM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law But would the amendment actually apply to judicial enforcement of religious arbitrations -- or arbitrations under the law of foreign countries -- so long as the court itself was only applying secular American law and not religious or foreign law? Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Eric Rassbach Sent: Thursday, November 11, 2010 9:05 AM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law In the video Prof. Helfand is apparently quoting, Rep. Duncan refers to religious arbitration immediately before he says the quoted language: http://prawfsblawg.blogs.com/prawfsblawg/2010/11/religious-arbitration- and-the-new-multiculturalism.html ___ 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
RE: Why We Have Standing Rules
There have been efforts from within Islam to invoke law to silence all criticism of Islam-witness the persistent efforts at the UN (in various organs including UNESCO) to ban defamation of religion. In early versions, the language read especially Islam. But whatever the merits or demerits of allowing private acceptance of religious law- see the debate in Ontario over family law a couple of years ago- it is hard to see any justification in law for singling out Islam. A challenge to that is hardly an effort at a veto of all criticism of Islam, or religion generally, which is a horse of a very different color. 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: Thursday, November 11, 2010 11:56 AM To: religionlaw@lists.ucla.edu Subject: Why We Have Standing Rules The column below is from an online religion series edited by Martin Marty at the University of Chicago. I assume the author is a religion scholar and not a lawyer. But he has a very interesting description, short and nontechnical, of what sound like citizen suit provisions in Islamic law. I am confident that no list member who is frustrated with the lack of standing in Oklahoma is proposing anything remotely like this. But this is a reminder of the dangers of the other extreme. And maybe some hint of what CAIR was thinking when it rushed into the Oklahoma lawsuit. - Forwarded message from divsighti...@gmail.com - Date: Thu, 11 Nov 2010 07:53:42 -0600 From: Sightings divsighti...@gmail.com Subject: *Sightings* 11/11/2010 - Religion vs. Fiction in Egypt To: sighti...@lists.uchicago.edu *Sightings* 11/11/2010 *Religion vs. Fiction in Egypt* - M. Lynx Qualey Two years ago, a relatively unknown Egyptian professor of Arabic and Islamic studies took home the second annual International Prize for Arabic Fiction-or Arabic Booker-for his novel *Azazel*. It was only while in his forties that Dr. Youssef Ziedan, who has written 50-some books about Sufism, Islamic philosophy, and Arabic medicine, turned his attention to fiction. He published his second novel, *Azazel* (sometimes translated as *Beelzebub*), at the age of 50. Ziedan's prize-winning book purports to be the memoirs of a passionate fifth-century monk named Hypa, whose scrolls are unearthed by a twentieth-century translator. In writing *Azazel, *Ziedan became one of a few contemporary Egyptian novelists to tackle religion in his literary work. After all, writing about religion has had its dangers: The newspaper *Al-**Youm Al-Saba'a's *website was hacked because of their reported intention to publish Anis Deghreidi's fictional *Trials of the Prophet Muhammad **earlier this year*. Authors have had their books preemptively censored by publishers, such as Mohamed Mansi Qandil's lovely *Moon over Samarqand, *which has since been printed in full. Others have been dragged to court by fellow citizens such as author Nawal El-Saadawi. It is thus not surprising that Ziedan and *Azazel* have caused controversy. Members of Egypt's Coptic Christian community, including the outspoken Bishop Bishoy, have written extensive rebuttals to the 2008 fictional work. Coptic Christians make up most of Egypt's Christian population, the largest in the region. The word Copt once simply meant Egyptian, and the current Copts remained Christian during Egypt's shift to Arab-Muslim rule. Exact population figures are not known, but the most commonly given figure is six to eight million Copts among a total population of 80 million Egyptians. It was late this spring when a group of Coptic Christian lawyers filed a * hesba* lawsuit against Ziedan demanding a five-year prison sentence. They claim that, in statements made during a symposium, the author defamed Christianity. A group of Islamist lawyers also filed suit, because of Ziedan's statements about religion. Such *hesba* cases, through which citizens can file suit against other citizens, have become increasingly popular in Egypt. The attorney Nabih El-Wahsh-according to a suit filed against *him*-has filed more than a thousand such cases. Most of these have reportedly been against TV producers, filmmakers, and authors. It was El-Wahsh who dragged prominent novelist Nawal El-Saadawi and her husband, Sherif Hetata, to court in 2001, seeking to divorce the couple-against their will-on the grounds that El-Saadawi had expressed views that made her an apostate. El-Wahsh filed suit against El-Saadawi a second time in 2007, seeking to have her Egyptian citizenship annulled because of her views on religion. Fortunately, these cases, like nearly all those filed by El-Wahsh, were dismissed. *Hesba* is a long-established principle in Islamic jurisprudence. *Guardian *reporter Brian Whitaker quotes Egyptian scholar
Re: TRO against Oklahoma no use of Sharia Law
I guess my question is not so much how is it possible, but (1) why would we want civil courts to enforce religious agreements? and (2) why would the civil courts be willing to use civil enforcement measures to enforce religious agreements? If a person makes an agreement based on religious principle, why shouldn't they be limited to religious fora and their means of enforcement, whether it is shunning, or excommunication, or having to teach Sunday School. There seems to be an implicit agreement in this discussion that enforcement of religious agreements in civil courts is a positive policy decision. I think it probably is not. A dual system is the better approach for Establishment purposes and for the identity of religious individuals. So, in the Catholic Church, there are civil trials for civil liability for causing child sex abuse by clergy and there are ecclesiatical trials for the Church's version of justice. Marci For many agreements to arbitrate, the Federal Arbitration Act is the rgument for enforcement; there is nothing in the FAA that would xempt agreements that provide for a religiously based arbitral forum. For others, analogous state statutes are the argument for enforcement. -Original Message- From: Michael Masinter masin...@nova.edu To: religionlaw religionlaw@lists.ucla.edu Sent: Thu, Nov 11, 2010 2:56 pm Subject: Re: TRO against Oklahoma no use of Sharia Law For many agreements to arbitrate, the Federal Arbitration Act is the rgument for enforcement; there is nothing in the FAA that would xempt agreements that provide for a religiously based arbitral forum. For others, analogous state statutes are the argument for enforcement. Michael R. Masinter 3305 College Avenue rofessor of Law Fort Lauderdale, FL 33314 ova Southeastern University 954.262.6151 (voice) asin...@nova.edu954.262.3835 (fax) Quoting hamilto...@aol.com: What are the arguments for enforcing religious arbitration agreements or disputes when religions have their own courts? Marci Sent from my Verizon Wireless BlackBerry -Original Message- From: Eric Rassbach erassb...@becketfund.org Sender: religionlaw-boun...@lists.ucla.edu Date: Thu, 11 Nov 2010 13:49:19 To: Law Religion issues for Law Academicsreligionlaw@lists.ucla.edu Reply-To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Subject: RE: TRO against Oklahoma no use of Sharia Law Let's say that an arbitration clause says that the case shall be decided in accordance with Islamic law as determined by the Texas Islamic Court. One party sues in Oklahoma state court. The defendant asks the court to stop the state court proceedings and enforce the arbitration clause. The plaintiff says the arbitration clause is unenforceable because some substantive and procedural aspects of Islamic law as typically determined by the Texas Islamic Court are unconscionable/against public policy. Would the court have to consider or look to Sharia to decide the enforceability question? An analogy might be an adequate alternative review on a forum non conveniens motion; courts have had to consider, for example, whether Saudi courts are adequate alternative fora given the lesser weight given to the testimony of women and non-Muslims. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Thursday, November 11, 2010 1:09 PM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law Eric Rassbach writes: Wouldn't that depend on whether consider and look to mean something broader than apply? My sense is that one advantage of arbitration is that courts generally need not consider or look to the underlying law. As I understand it, that's what happens in intrachurch disputes, when courts defer to the decision of the authorized church tribunal -- not a traditional arbitration, I realize, but close to it. And if one party challenged enforcement of the arbitration clause as unconscionable or involuntary based on the use of religious law, would deciding that question require a court to consider religious law? I take it that if the claim required deciding what religious law should actually have been applied, the First Amendment would bar a secular court from resolving the claim. But do you mean that it would have consider religious law to decide whether it actually called for (say) the application of sex discriminatory rules? I would think that even there the court wouldn't actually consider the law as such, but just hear testimony -- from instance, from the arbitral tribunal's judges, or from the parties -- about what procedures
Re: TRO against Oklahoma no use of Sharia Law
I would think that, under Lukumi Babalu and McDaniel, the government may not authorize the enforcement of secular arbitrations but refuse to enforce religious arbitrations. Whatever the scope of permitted discrimination against religion might be under Locke v. Davey, I don't see how Locke would extend to a situation such as this one. More broadly, the Court has interpreted the First Amendment as barring any religious decisions by courts. If some dispute over property - perhaps a substantial amount of property, and perhaps in the context of a schism in which excommunication and shunning might not be much of a remedy - or contract rights requires a determination of a religious question (e.g., whether a supplier's food products are kosher, whether the terms of a religious trust have been fulfilled, and so on), the civil courts will refuse to hear the dispute. I think that's sensible, for the reasons the Court has set out. But if we are to deny religious people a means for resolving their disputes through the normal machinery (and the normal enforcement mechanisms) of civil law, machinery that is one of the essential functions of a government, it seems to me that we should offer them some alternative mechanism. The obvious solution, I think, is the same solution that people get when they want some specialized or supposedly more efficient tribunal to resolve their secular contracts, but with the enforcement power of the state behind the contracts: binding arbitration. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Thursday, November 11, 2010 12:07 PM To: religionlaw@lists.ucla.edu Subject: Re: TRO against Oklahoma no use of Sharia Law I guess my question is not so much how is it possible, but (1) why would we want civil courts to enforce religious agreements? and (2) why would the civil courts be willing to use civil enforcement measures to enforce religious agreements? If a person makes an agreement based on religious principle, why shouldn't they be limited to religious fora and their means of enforcement, whether it is shunning, or excommunication, or having to teach Sunday School. There seems to be an implicit agreement in this discussion that enforcement of religious agreements in civil courts is a positive policy decision. I think it probably is not. A dual system is the better approach for Establishment purposes and for the identity of religious individuals. So, in the Catholic Church, there are civil trials for civil liability for causing child sex abuse by clergy and there are ecclesiatical trials for the Church's version of justice. Marci ___ 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.
RE: Why We Have Standing Rules
I certainly agree with Marc that the issue in Oklahoma is very different from an effort to silence all criticism of Islam. Singling out Islam versus a general rule about religious law, and government speech versus private speech, are obvious distinctions. I meant to comment only on the standing issue. And of course the merits might inform standing; we might want standing here to ensure that the Establishment Clause is enforceable by somebody. All I really meant to suggest is that however generously we might wish to approach standing, there has to be a limit somewhere, or we wind up with absurdity. Douglas Laycock Armistead M. Dobie Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marc Stern Sent: Thursday, November 11, 2010 3:04 PM To: 'Law Religion issues for Law Academics' Subject: RE: Why We Have Standing Rules There have been efforts from within Islam to invoke law to silence all criticism of Islam-witness the persistent efforts at the UN (in various organs including UNESCO) to ban defamation of religion. In early versions, the language read especially Islam. But whatever the merits or demerits of allowing private acceptance of religious law- see the debate in Ontario over family law a couple of years ago- it is hard to see any justification in law for singling out Islam. A challenge to that is hardly an effort at a veto of all criticism of Islam, or religion generally, which is a horse of a very different color. 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: Thursday, November 11, 2010 11:56 AM To: religionlaw@lists.ucla.edu Subject: Why We Have Standing Rules The column below is from an online religion series edited by Martin Marty at the University of Chicago. I assume the author is a religion scholar and not a lawyer. But he has a very interesting description, short and nontechnical, of what sound like citizen suit provisions in Islamic law. I am confident that no list member who is frustrated with the lack of standing in Oklahoma is proposing anything remotely like this. But this is a reminder of the dangers of the other extreme. And maybe some hint of what CAIR was thinking when it rushed into the Oklahoma lawsuit. - Forwarded message from divsighti...@gmail.com - Date: Thu, 11 Nov 2010 07:53:42 -0600 From: Sightings divsighti...@gmail.com Subject: *Sightings* 11/11/2010 - Religion vs. Fiction in Egypt To: sighti...@lists.uchicago.edu *Sightings* 11/11/2010 *Religion vs. Fiction in Egypt* - M. Lynx Qualey Two years ago, a relatively unknown Egyptian professor of Arabic and Islamic studies took home the second annual International Prize for Arabic Fiction-or Arabic Booker-for his novel *Azazel*. It was only while in his forties that Dr. Youssef Ziedan, who has written 50-some books about Sufism, Islamic philosophy, and Arabic medicine, turned his attention to fiction. He published his second novel, *Azazel* (sometimes translated as *Beelzebub*), at the age of 50. Ziedan's prize-winning book purports to be the memoirs of a passionate fifth-century monk named Hypa, whose scrolls are unearthed by a twentieth-century translator. In writing *Azazel, *Ziedan became one of a few contemporary Egyptian novelists to tackle religion in his literary work. After all, writing about religion has had its dangers: The newspaper *Al-**Youm Al-Saba'a's *website was hacked because of their reported intention to publish Anis Deghreidi's fictional *Trials of the Prophet Muhammad **earlier this year*. Authors have had their books preemptively censored by publishers, such as Mohamed Mansi Qandil's lovely *Moon over Samarqand, *which has since been printed in full. Others have been dragged to court by fellow citizens such as author Nawal El-Saadawi. It is thus not surprising that Ziedan and *Azazel* have caused controversy. Members of Egypt's Coptic Christian community, including the outspoken Bishop Bishoy, have written extensive rebuttals to the 2008 fictional work. Coptic Christians make up most of Egypt's Christian population, the largest in the region. The word Copt once simply meant Egyptian, and the current Copts remained Christian during Egypt's shift to Arab-Muslim rule. Exact population figures are not known, but the most commonly given figure is six to eight million Copts among a total population of 80 million Egyptians. It was late this spring when a group of Coptic Christian lawyers filed a * hesba* lawsuit against Ziedan demanding a five-year prison sentence. They claim that, in statements made during a symposium, the author defamed
RE: TRO against Oklahoma no use of Sharia Law
Dear colleagues, I agree with Marci that a healthy, positive sense of the distinction between religious authority and political / civil authority is important for religious freedom. (This is one reason, I think, measures like the recent attempt in Connecticut to re-organize Catholic parishes on a trustee-ship model are troubling.) And, I think Eugene is right to point out that any willingness on the political authority's part to enforce religious arbitrations or resolve religious disputes is (and should be) cabined by the no religious decisions and no excessive entanglement rules. Still, it does seem to me that political communities might reasonably conclude that an important dimension of human freedom - one that is not outside the appropriate zone of a secular government's concern -- is the ability to enter into a wide variety of actually-binding promises and agreements. I am inclined to think that the fact these agreements and promises (freely and knowingly) incorporate religious commitments, norms, laws, etc., should not necessarily (thought it certainly might, in some cases) make them inappropriate for enforcement by non-religious authorities. Best, Rick Richard W. Garnett Professor of Law and Associate Dean Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) SSRN pagehttp://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235 Blogs: Prawfsblawghttp://prawfsblawg.blogs.com/ Mirror of Justicehttp://www.mirrorofjustice.blogs.com/ Law, Religion, and Ethicshttp://lawreligionethics.net/ From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Thursday, November 11, 2010 3:32 PM To: Law Religion issues for Law Academics Subject: Re: TRO against Oklahoma no use of Sharia Law I would think that, under Lukumi Babalu and McDaniel, the government may not authorize the enforcement of secular arbitrations but refuse to enforce religious arbitrations. Whatever the scope of permitted discrimination against religion might be under Locke v. Davey, I don't see how Locke would extend to a situation such as this one. More broadly, the Court has interpreted the First Amendment as barring any religious decisions by courts. If some dispute over property - perhaps a substantial amount of property, and perhaps in the context of a schism in which excommunication and shunning might not be much of a remedy - or contract rights requires a determination of a religious question (e.g., whether a supplier's food products are kosher, whether the terms of a religious trust have been fulfilled, and so on), the civil courts will refuse to hear the dispute. I think that's sensible, for the reasons the Court has set out. But if we are to deny religious people a means for resolving their disputes through the normal machinery (and the normal enforcement mechanisms) of civil law, machinery that is one of the essential functions of a government, it seems to me that we should offer them some alternative mechanism. The obvious solution, I think, is the same solution that people get when they want some specialized or supposedly more efficient tribunal to resolve their secular contracts, but with the enforcement power of the state behind the contracts: binding arbitration. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Thursday, November 11, 2010 12:07 PM To: religionlaw@lists.ucla.edu Subject: Re: TRO against Oklahoma no use of Sharia Law I guess my question is not so much how is it possible, but (1) why would we want civil courts to enforce religious agreements? and (2) why would the civil courts be willing to use civil enforcement measures to enforce religious agreements? If a person makes an agreement based on religious principle, why shouldn't they be limited to religious fora and their means of enforcement, whether it is shunning, or excommunication, or having to teach Sunday School. There seems to be an implicit agreement in this discussion that enforcement of religious agreements in civil courts is a positive policy decision. I think it probably is not. A dual system is the better approach for Establishment purposes and for the identity of religious individuals. So, in the Catholic Church, there are civil trials for civil liability for causing child sex abuse by clergy and there are ecclesiatical trials for the Church's version of justice. Marci ___ 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
Re: TRO against Oklahoma no use of Sharia Law
By refusing to use the civil courts to enforce religion-based contracts, we are not denying religious people access to civil enforcement, but rather denying access only to religious contracts that effect religious law. I think it is quite clear in the Establishment cases that it is inappropriate for the courts to determine religious law; that is easy. Why then would it be all right for them to enforce religiously motivated obligations?I have not heard a good reason why a dual-track enforcement scheme is not the better approach, with religious courts enforcing religious contracts (assuming enforcement does not violate the law, e.g., no cutting off hands or genitally mutilating girls) and civil courts enforcing contracts that do not require an interpretation of religious law, or an interference in the religious organization's universe/world. For those who believe that so-called church autonomy is a positive value, I cannot see how civil enfocement of religious contracts can be a good thing. Marci -Original Message- From: Volokh, Eugene vol...@law.ucla.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Thu, Nov 11, 2010 3:39 pm Subject: Re: TRO against Oklahoma no use of Sharia Law I would think that, under Lukumi Babalu and McDaniel, the government may not authorize the enforcement of secular arbitrations but refuse to enforce religious arbitrations. Whatever the scope of permitted discrimination against religion might be under Locke v. Davey, I don’t see how Locke would extend to a situation such as this one. More broadly, the Court has interpreted the First Amendment as barring any religious decisions by courts. If some dispute over property – perhaps a substantial amount of property, and perhaps in the context of a schism in which excommunication and shunning might not be much of a remedy – or contract rights requires a determination of a religious question (e.g., whether a supplier’s food products are kosher, whether the terms of a religious trust have been fulfilled, and so on), the civil courts will refuse to hear the dispute. I think that’s sensible, for the reasons the Court has set out. But if we are to deny religious people a means for resolving their disputes through the normal machinery (and the normal enforcement mechanisms) of civil law, machinery that is one of the essential functions of a government, it seems to me that we should offer them some alternative mechanism. The obvious solution, I think, is the same solution that people get when they want some specialized or supposedly more efficient tribunal to resolve their secular contracts, but with the enforcement power of the state behind the contracts: binding arbitration. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Thursday, November 11, 2010 12:07 PM To: religionlaw@lists.ucla.edu Subject: Re: TRO against Oklahoma no use of Sharia Law I guess my question is not so much how is it possible, but (1) why would we want civil courts to enforce religious agreements? and (2) why would the civil courts be willing to use civil enforcement measures to enforce religious agreements? If a person makes an agreement based on religious principle, why shouldn't they be limited to religious fora and their means of enforcement, whether it is shunning, or excommunication, or having to teach Sunday School. There seems to be an implicit agreement in this discussion that enforcement of religious agreements in civil courts is a positive policy decision. I think it probably is not. A dual system is the better approach for Establishment purposes and for the identity of religious individuals. So, in the Catholic Church, there are civil trials for civil liability for causing child sex abuse by clergy and there are ecclesiatical trials for the Church's version of justice. Marci ___ o post, send message to Religionlaw@lists.ucla.edu o subscribe, unsubscribe, change options, or get password, see ttp://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. nyone can subscribe to the list and read messages that are posted; people can ead the Web archives; and list members can (rightly or wrongly) forward the essages 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
Re: TRO against Oklahoma no use of Sharia Law
(1) I take it that the argument isn’t really that courts shouldn’t “enforce religiously motivated obligations.” Presumably no court would or should scrutinize the motivations for a person’s obligation, and then refuse to enforce the obligation because it stems from the person’s religious beliefs. (2) The reason the Court has given for refusing to determine religious law is that such determinations would involve “entanglement in questions of religious doctrine, polity, and practice.” Jones v. Wolf. That reason does not apply when courts apply neutral principles of arbitration law to simply enforce an arbitral decisions – enforcement that does not require courts to themselves resolve any questions of religious doctrine. In fact, Jones expressly endorsed one particular form of binding religious arbitration as one of the best ways of resolving religious disputes over property. “[T]he neutral-principles analysis shares the peculiar genius of private-law systems in general—flexibility in ordering private rights and obligations to reflect the intentions of the parties. Through appropriate reversionary clauses and trust provisions, religious societies can specify what is to happen to church property in the event of a particular contingency, or what religious body will determine the ownership in the event of a schism or doctrinal controversy. In this manner, a religious organization can ensure that a dispute over the ownership of church property will be resolved in accord with the desires of the members.” (Emphasis added.) And the Court was not just discussing religious organizations’ decisionmaking that is then enforced through moral suasion or the threat of excommunication or shunning. The Court was clearly envisioning secular courts enforcing the decisions of the religious bodies specified in the contract, will, or deed. (3) As to church autonomy, we do not strip churches of access to government power when it comes to protecting their property against crimes, or torts. I take it that even Marci doesn’t think it’s an invasion of church autonomy to allow churches to take secular contracts to secular court. Why can’t a church – or a religious individual – ask a court to enforce the following contract: “A promises B to do task C. In the event a dispute arises under this contract, A agrees to pay B whatever amount, if any, it is ordered to pay by arbitral organization D.” (I take it B would usually have a corresponding promise to A as well.) After all, it would generally be enforceable if D is a secular entity applying secular rules; what’s wrong with its being a religious entity applying religious rules? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Thursday, November 11, 2010 1:03 PM To: religionlaw@lists.ucla.edu Subject: Re: TRO against Oklahoma no use of Sharia Law By refusing to use the civil courts to enforce religion-based contracts, we are not denying religious people access to civil enforcement, but rather denying access only to religious contracts that effect religious law. I think it is quite clear in the Establishment cases that it is inappropriate for the courts to determine religious law; that is easy. Why then would it be all right for them to enforce religiously motivated obligations?I have not heard a good reason why a dual-track enforcement scheme is not the better approach, with religious courts enforcing religious contracts (assuming enforcement does not violate the law, e.g., no cutting off hands or genitally mutilating girls) and civil courts enforcing contracts that do not require an interpretation of religious law, or an interference in the religious organization's universe/world. For those who believe that so-called church autonomy is a positive value, I cannot see how civil enfocement of religious contracts can be a good thing. Marci ___ 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.
Re: TRO against Oklahoma no use of Sharia Law
Taking up one issue first---I read Jones v Wolf as a message from the Court to religious entities that own property: if they want judicial enforcement of their intentions regarding property, they need to have documents that would reach their desired ends throuigh neutral principles of law. In other words, if the deal is based on canon law, don't expect judicial enforcement. If it reflects secular property law, the courts will enforce such deals That is how the courts in the Catholic voluntary bankrupotcy cases have read the case Marci Sent from my Verizon Wireless BlackBerry -Original Message- From: Volokh, Eugene vol...@law.ucla.edu Sender: religionlaw-boun...@lists.ucla.edu Date: Thu, 11 Nov 2010 13:25:20 To: Law Religion issues for Law Academicsreligionlaw@lists.ucla.edu Reply-To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Subject: Re: TRO against Oklahoma no use of Sharia Law ___ 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.
RE: TRO against Oklahoma no use of Sharia Law
I'm not sure I understand. Jones v. Wolf expressly says (emphasis added): Furthermore, the neutral-principles analysis shares the peculiar genius of private-law systems in general-flexibility in ordering private rights and obligations to reflect the intentions of the parties. Through appropriate reversionary clauses and trust provisions, religious societies can specify what is to happen to church property in the event of a particular contingency, or what religious body will determine the ownership in the event of a schism or doctrinal controversy. In this manner, a religious organization can ensure that a dispute over the ownership of church property will be resolved in accord with the desires of the members. Sounds to me like the Court quite expressly endorsed not just the use of religion-neutral contracts, but (alternatively) the creation of contracts that call for religious arbitration by a particular religious body - arbitration that can dispose of private rights and obligations and resolve[] dispute[s] in a way that is legally binding. And that's true even if the deal is based on canon law, which is of course what the religious body will determine the ownership based on. That's binding arbitration by a religious tribunal using religious principles, and Jones fully endorsed it. Eugene Marci Hamilton writes: Taking up one issue first---I read Jones v Wolf as a message from the Court to religious entities that own property: if they want judicial enforcement of their intentions regarding property, they need to have documents that would reach their desired ends throuigh neutral principles of law. In other words, if the deal is based on canon law, don't expect judicial enforcement. If it reflects secular property law, the courts will enforce such deals That is how the courts in the Catholic voluntary bankrupotcy cases have read the case ___ 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.
