May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement?
That's the issue lurking in In re Aramco Servs. Co.http://scholar.google.com/scholar_case?case=11521915190435651264, now on appeal to the Texas Supreme Court. DynCorp and Aramco Services (both of which were at the time Delaware corporations headquartered in Houston, though Aramco Services is a subsidiary of Saudi Aramcohttps://www.aramcoservices.com/about/, the Saudi government's oil company) signed an agreement under which DynCorp was to create a computer system (in the U.S.) and install it at Aramco's Saudi facilities. The contract provided that it was to be interpreted under Saudi law, and arbitrated under Saudi arbitration rules and regulations. Those rules and regulations apparently call for the arbitrators to be Muslim Saudi citizens. The trial court, however, appointed a three-arbitrator panel consisting of a Muslim (apparently a Saudi) and two non-Muslim non-Saudis. Aramco appealed, arguing that (1) under the contract the arbitrators were not supposed to be appointed by a court, and, (2) in the alternative, that the court erred in appointing non-Muslim non-Saudis. The Texas Court of Appeals agreed with Aramco on item 1, and therefore didn't reach item 2. But there is an interesting constitutional issue lurking in the background: If a contract does call for a court to appoint arbitrators, and provides that the arbitrators must be Muslims (or Jews or Catholics or what have you), may a court implement that provision, or does the First Amendment or the Equal Protection Clause bar the court - a government entity - from discriminating based on religion this way, even pursuant to a party agreement? Any thoughts on this? Eugene ___ To post, send message to Religionlaw@lists.ucla.edu 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: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement?
It seems difficult to find an equal protection violation if the Court is merely enforcing the contract. It seems to me that a more likely constitutional objection would be that the contract cannot be enforced without running afoul of the neutral principles doctrine. Can a court make a decision about who is or is not a Muslim without making theological choices? Would a shia muslim be acceptable? A member of the nation of Islam? Nathan B. Oman Associate Professor William Mary Law School P.O. Box 8795 Williamsburg, VA 23187 (757) 221-3919 I beseech you, in the bowels of Christ, think it possible you may be mistaken. -Oliver Cromwell On Mon, Jan 3, 2011 at 10:06 AM, Volokh, Eugene vol...@law.ucla.edu wrote: That’s the issue lurking in *In re Aramco Servs. Co.*http://scholar.google.com/scholar_case?case=11521915190435651264, now on appeal to the Texas Supreme Court. DynCorp and Aramco Services (both of which were at the time Delaware corporations headquartered in Houston, though Aramco Services is a subsidiary of Saudi Aramcohttps://www.aramcoservices.com/about/, the Saudi government’s oil company) signed an agreement under which DynCorp was to create a computer system (in the U.S.) and install it at Aramco’s Saudi facilities. The contract provided that it was to be interpreted under Saudi law, and arbitrated under Saudi arbitration rules and regulations. Those rules and regulations apparently call for the arbitrators to be Muslim Saudi citizens. The trial court, however, appointed a three-arbitrator panel consisting of a Muslim (apparently a Saudi) and two non-Muslim non-Saudis. Aramco appealed, arguing that (1) under the contract the arbitrators were not supposed to be appointed by a court, and, (2) in the alternative, that the court erred in appointing non-Muslim non-Saudis. The Texas Court of Appeals agreed with Aramco on item 1, and therefore didn’t reach item 2. But there is an interesting constitutional issue lurking in the background: If a contract does call for a court to appoint arbitrators, and provides that the arbitrators must be Muslims (or Jews or Catholics or what have you), may a court implement that provision, or does the First Amendment or the Equal Protection Clause bar the court — a government entity — from discriminating based on religion this way, even pursuant to a party agreement? Any thoughts on this? Eugene ___ To post, send message to Religionlaw@lists.ucla.edu 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: May American court appoint only Muslim arbitrators, pursuant to anarbitration agreement?
What if the agreement said African Americans or women only? Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University Sent from my Verizon Wireless BlackBerry -Original Message- From: Volokh, Eugene vol...@law.ucla.edu Sender: religionlaw-boun...@lists.ucla.edu Date: Mon, 3 Jan 2011 07:06:03 To: Law Religion issues for Law Academicsreligionlaw@lists.ucla.edu Reply-To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Subject: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? ___ 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: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement?
I agree with Nate's neutral principles / entanglement argument. But I wonder whether one can so easily dismiss the equal protection argument from the enforcement of the contract. The court, after all, would have to decide who gets to perform an important and lucrative task based on that person's religion, whether or not it's merely enforcing a private contract. Of course the judge won't be acting based on religious animus, but he will be deliberately treating people differently based on religion. Also, is the Batson / J.E.B. line of cases relevant here, assuming that it can be expanded to peremptories based on religion and not just race or sex? (As I recall, most lower court cases that have considered the issue have indeed expanded Batson and J.E.B. to religion.) If a court may not allow a private party to challenge a juror based on religion, even when the judge wouldn't himself be discriminating based on religion, may a court allow private party agreement to provide for selection - by the judge - of an arbitrator based on religion? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Nathan Oman Sent: Monday, January 03, 2011 7:28 AM To: Law Religion issues for Law Academics Subject: Re: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? It seems difficult to find an equal protection violation if the Court is merely enforcing the contract. It seems to me that a more likely constitutional objection would be that the contract cannot be enforced without running afoul of the neutral principles doctrine. Can a court make a decision about who is or is not a Muslim without making theological choices? Would a shia muslim be acceptable? A member of the nation of Islam? Nathan B. Oman Associate Professor William Mary Law School P.O. Box 8795 Williamsburg, VA 23187 (757) 221-3919 I beseech you, in the bowels of Christ, think it possible you may be mistaken. -Oliver Cromwell On Mon, Jan 3, 2011 at 10:06 AM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: That's the issue lurking in In re Aramco Servs. Co.http://scholar.google.com/scholar_case?case=11521915190435651264, now on appeal to the Texas Supreme Court. DynCorp and Aramco Services (both of which were at the time Delaware corporations headquartered in Houston, though Aramco Services is a subsidiary of Saudi Aramcohttps://www.aramcoservices.com/about/, the Saudi government's oil company) signed an agreement under which DynCorp was to create a computer system (in the U.S.) and install it at Aramco's Saudi facilities. The contract provided that it was to be interpreted under Saudi law, and arbitrated under Saudi arbitration rules and regulations. Those rules and regulations apparently call for the arbitrators to be Muslim Saudi citizens. The trial court, however, appointed a three-arbitrator panel consisting of a Muslim (apparently a Saudi) and two non-Muslim non-Saudis. Aramco appealed, arguing that (1) under the contract the arbitrators were not supposed to be appointed by a court, and, (2) in the alternative, that the court erred in appointing non-Muslim non-Saudis. The Texas Court of Appeals agreed with Aramco on item 1, and therefore didn't reach item 2. But there is an interesting constitutional issue lurking in the background: If a contract does call for a court to appoint arbitrators, and provides that the arbitrators must be Muslims (or Jews or Catholics or what have you), may a court implement that provision, or does the First Amendment or the Equal Protection Clause bar the court - a government entity - from discriminating based on religion this way, even pursuant to a party agreement? Any thoughts on this? Eugene ___ To post, send message to Religionlaw@lists.ucla.edumailto: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: May American court appoint only Muslim arbitrators, pursuant to anarbitration agreement?
What if it said apply Brazilian law and appoint only lawyers admitted to practice in brazil? Sent from Steve Jamar's iPhone On Jan 3, 2011, at 11:08 AM, hamilto...@aol.com wrote: What if the agreement said African Americans or women only? Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University Sent from my Verizon Wireless BlackBerry -Original Message- From: Volokh, Eugene vol...@law.ucla.edu Sender: religionlaw-boun...@lists.ucla.edu Date: Mon, 3 Jan 2011 07:06:03 To: Law Religion issues for Law Academicsreligionlaw@lists.ucla.edu Reply-To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Subject: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? ___ 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: May American court appoint only Muslim arbitrators, pursuant toan arbitration agreement?
Why isn't Shelley v. Kramer at least relevant, even if it can be distinguished, and even if it's most extreme implications-that all judicial enforcement of private activity is state action- would be problematic to many albeit not always in the same cases? Marc D. Stern Associate General Counsel for Legal Advocacy ste...@ajc.org 212.891.1480 646.287.2606 (cell) http://www.ajc.org/ NOTICE This email may contain confidential and/or privileged material and is intended for the sole use of the intended recipient(s). If you are not the intended recipient, please be advised that you have received this email in error and that any use, disclosure, copying, distribution or other transmission is prohibited, improper and may be unlawful. If you have received this email in error, you must destroy this email and kindly notify the sender by reply email. If this email contains the word CONFIDENTIAL in its Subject line, then even a valid recipient must hold it in confidence and not distribute or disclose it. In such case ONLY the author of the email has permission to forward or otherwise distribute it or disclose its contents to others. _ From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Nathan Oman Sent: Monday, January 03, 2011 10:28 To: Law Religion issues for Law Academics Subject: Re: May American court appoint only Muslim arbitrators, pursuant toan arbitration agreement? It seems difficult to find an equal protection violation if the Court is merely enforcing the contract. It seems to me that a more likely constitutional objection would be that the contract cannot be enforced without running afoul of the neutral principles doctrine. Can a court make a decision about who is or is not a Muslim without making theological choices? Would a shia muslim be acceptable? A member of the nation of Islam? Nathan B. Oman Associate Professor William Mary Law School P.O. Box 8795 Williamsburg, VA 23187 (757) 221-3919 I beseech you, in the bowels of Christ, think it possible you may be mistaken. -Oliver Cromwell On Mon, Jan 3, 2011 at 10:06 AM, Volokh, Eugene vol...@law.ucla.edu wrote: That's the issue lurking in http://scholar.google.com/scholar_case?case=11521915190435651264 In re Aramco Servs. Co., now on appeal to the Texas Supreme Court. DynCorp and Aramco Services (both of which were at the time Delaware corporations headquartered in Houston, though Aramco Services is a subsidiary of Saudi Aramco https://www.aramcoservices.com/about/ , the Saudi government's oil company) signed an agreement under which DynCorp was to create a computer system (in the U.S.) and install it at Aramco's Saudi facilities. The contract provided that it was to be interpreted under Saudi law, and arbitrated under Saudi arbitration rules and regulations. Those rules and regulations apparently call for the arbitrators to be Muslim Saudi citizens. The trial court, however, appointed a three-arbitrator panel consisting of a Muslim (apparently a Saudi) and two non-Muslim non-Saudis. Aramco appealed, arguing that (1) under the contract the arbitrators were not supposed to be appointed by a court, and, (2) in the alternative, that the court erred in appointing non-Muslim non-Saudis. The Texas Court of Appeals agreed with Aramco on item 1, and therefore didn't reach item 2. But there is an interesting constitutional issue lurking in the background: If a contract does call for a court to appoint arbitrators, and provides that the arbitrators must be Muslims (or Jews or Catholics or what have you), may a court implement that provision, or does the First Amendment or the Equal Protection Clause bar the court - a government entity - from discriminating based on religion this way, even pursuant to a party agreement? Any thoughts on this? Eugene ___ To post, send message to Religionlaw@lists.ucla.edu 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. image001.jpg___ 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: May American court appoint only Muslim arbitrators, pursuant to anarbitration agreement?
What if the dispute involved a matter of religious law or control of a religious entity or a dispute between a parochial school and a faculty member ? SAMUEL M. KRIEGER -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Monday, January 03, 2011 11:46 AM To: hamilto...@aol.com; Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: May American court appoint only Muslim arbitrators, pursuant to anarbitration agreement? What if it said apply Brazilian law and appoint only lawyers admitted to practice in brazil? Sent from Steve Jamar's iPhone On Jan 3, 2011, at 11:08 AM, hamilto...@aol.com wrote: What if the agreement said African Americans or women only? Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University Sent from my Verizon Wireless BlackBerry -Original Message- From: Volokh, Eugene vol...@law.ucla.edu Sender: religionlaw-boun...@lists.ucla.edu Date: Mon, 3 Jan 2011 07:06:03 To: Law Religion issues for Law Academicsreligionlaw@lists.ucla.edu Reply-To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Subject: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement?
Here is the relevant provision (in translation) from the case-link Eugene sent around: The Arbitrator must be a Saudi national or a Moslem foreigner chosen amongst the members of the liberal professions or other persons. He may also be chosen amongst state officials after agreement of the authority on which he depends. Should there be several arbitrators, the Chairman must know the Shari'a, commercial laws and the customs in force in the Kingdom. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Monday, January 03, 2011 11:46 AM To: Law Religion issues for Law Academics Subject: RE: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? I agree with Nate’s neutral principles / entanglement argument. But I wonder whether one can so easily dismiss the equal protection argument from the enforcement of the contract. The court, after all, would have to decide who gets to perform an important and lucrative task based on that person’s religion, whether or not it’s merely enforcing a private contract. Of course the judge won’t be acting based on religious animus, but he will be deliberately treating people differently based on religion. Also, is the Batson / J.E.B. line of cases relevant here, assuming that it can be expanded to peremptories based on religion and not just race or sex? (As I recall, most lower court cases that have considered the issue have indeed expanded Batson and J.E.B. to religion.) If a court may not allow a private party to challenge a juror based on religion, even when the judge wouldn’t himself be discriminating based on religion, may a court allow private party agreement to provide for selection – by the judge – of an arbitrator based on religion? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Nathan Oman Sent: Monday, January 03, 2011 7:28 AM To: Law Religion issues for Law Academics Subject: Re: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? It seems difficult to find an equal protection violation if the Court is merely enforcing the contract. It seems to me that a more likely constitutional objection would be that the contract cannot be enforced without running afoul of the neutral principles doctrine. Can a court make a decision about who is or is not a Muslim without making theological choices? Would a shia muslim be acceptable? A member of the nation of Islam? Nathan B. Oman Associate Professor William Mary Law School P.O. Box 8795 Williamsburg, VA 23187 (757) 221-3919 I beseech you, in the bowels of Christ, think it possible you may be mistaken. -Oliver Cromwell On Mon, Jan 3, 2011 at 10:06 AM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: That’s the issue lurking in In re Aramco Servs. Co.http://scholar.google.com/scholar_case?case=11521915190435651264, now on appeal to the Texas Supreme Court. DynCorp and Aramco Services (both of which were at the time Delaware corporations headquartered in Houston, though Aramco Services is a subsidiary of Saudi Aramcohttps://www.aramcoservices.com/about/, the Saudi government’s oil company) signed an agreement under which DynCorp was to create a computer system (in the U.S.) and install it at Aramco’s Saudi facilities. The contract provided that it was to be interpreted under Saudi law, and arbitrated under Saudi arbitration rules and regulations. Those rules and regulations apparently call for the arbitrators to be Muslim Saudi citizens. The trial court, however, appointed a three-arbitrator panel consisting of a Muslim (apparently a Saudi) and two non-Muslim non-Saudis. Aramco appealed, arguing that (1) under the contract the arbitrators were not supposed to be appointed by a court, and, (2) in the alternative, that the court erred in appointing non-Muslim non-Saudis. The Texas Court of Appeals agreed with Aramco on item 1, and therefore didn’t reach item 2. But there is an interesting constitutional issue lurking in the background: If a contract does call for a court to appoint arbitrators, and provides that the arbitrators must be Muslims (or Jews or Catholics or what have you), may a court implement that provision, or does the First Amendment or the Equal Protection Clause bar the court — a government entity — from discriminating based on religion this way, even pursuant to a party agreement? Any thoughts on this? Eugene ___ To post, send message to Religionlaw@lists.ucla.edumailto: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
Re: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement?
I use a contract clause to arbitrate using a Christian arbitration service. The clause spells out the service much like one would specify AAA to arbitrate. The clause does not give requirements for the arbitrators, just what organization will arbitrate. The reasoning is that the Bible tells Christians not to take their cases to secular courts. Does that make a difference? I was on a christian arbitration panel about 10 years ago. Alan Law Office of Alan Leigh Armstrong 18652 Florida St., Suite 225 Huntington Beach CA 92648-6006 714 375 1147 fax 714 782 6007 a...@alanarmstrong.com Serving the family and small business since 1984 ___ 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: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement?
The court could apparently comply with the contract, and avoid all entanglement iwth religion, by appointing three Saudis. Does anybody see a problem with that? I assume that all Saudis are Muslim, or at least that the percentage is so high that the odds of appointing a non-Muslim Saudi are negligible. On Mon, 3 Jan 2011 12:34:05 -0500 Eric Rassbach erassb...@becketfund.org wrote: Here is the relevant provision (in translation) from the case-link Eugene sent around: The Arbitrator must be a Saudi national or a Moslem foreigner chosen amongst the members of the liberal professions or other persons. He may also be chosen amongst state officials after agreement of the authority on which he depends. Should there be several arbitrators, the Chairman must know the Shari'a, commercial laws and the customs in force in the Kingdom. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Monday, January 03, 2011 11:46 AM To: Law Religion issues for Law Academics Subject: RE: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? I agree with Nates neutral principles / entanglement argument. But I wonder whether one can so easily dismiss the equal protection argument from the enforcement of the contract. The court, after all, would have to decide who gets to perform an important and lucrative task based on that persons religion, whether or not its merely enforcing a private contract. Of course the judge wont be acting based on religious animus, but he will be deliberately treating people differently based on religion. Also, is the Batson / J.E.B. line of cases relevant here, assuming that it can be expanded to peremptories based on religion and not just race or sex? (As I recall, most lower court cases that have considered the issue have indeed expanded Batson and J.E.B. to religion.) If a court may not allow a private party to challenge a juror based on religion, even when the judge wouldnt himself be discriminating based on religion, may a court allow private party agreement to provide for selection by the judge of an arbitrator based on religion? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Nathan Oman Sent: Monday, January 03, 2011 7:28 AM To: Law Religion issues for Law Academics Subject: Re: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? It seems difficult to find an equal protection violation if the Court is merely enforcing the contract. It seems to me that a more likely constitutional objection would be that the contract cannot be enforced without running afoul of the neutral principles doctrine. Can a court make a decision about who is or is not a Muslim without making theological choices? Would a shia muslim be acceptable? A member of the nation of Islam? Nathan B. Oman Associate Professor William Mary Law School P.O. Box 8795 Williamsburg, VA 23187 (757) 221-3919 I beseech you, in the bowels of Christ, think it possible you may be mistaken. -Oliver Cromwell On Mon, Jan 3, 2011 at 10:06 AM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: Thats the issue lurking in In re Aramco Servs. Co.http://scholar.google.com/scholar_case?case=11521915190435651264, now on appeal to the Texas Supreme Court. DynCorp and Aramco Services (both of which were at the time Delaware corporations headquartered in Houston, though Aramco Services is a subsidiary of Saudi Aramcohttps://www.aramcoservices.com/about/, the Saudi governments oil company) signed an agreement under which DynCorp was to create a computer system (in the U.S.) and install it at Aramcos Saudi facilities. The contract provided that it was to be interpreted under Saudi law, and arbitrated under Saudi arbitration rules and regulations. Those rules and regulations apparently call for the arbitrators to be Muslim Saudi citizens. The trial court, however, appointed a three-arbitrator panel consisting of a Muslim (apparently a Saudi) and two non-Muslim non-Saudis. Aramco appealed, arguing that (1) under the contract the arbitrators were not supposed to be appoi nted by a court, and, (2) in the alternative, that the court erred in appointing non-Muslim non-Saudis. The Texas Court of Appeals agreed with Aramco on item 1, and therefore didnt reach item 2. But there is an interesting constitutional issue lurking in the background: If a contract does call for a court to appoint arbitrators, and provides that the arbitrators must be Muslims (or Jews or Catholics or what have you), may a court implement that provision, or does the First Amendment or the Equal Protection Clause bar the court a government entity from
RE: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement?
While I am not an academic (just a practicing lawyer in New York), I understand there will be a panel at the forthcoming AALS meeting on the Beis Din (rabbinic Arbitration). There is a long line of cases in NY on Beis Din issues ranging from panel selection, panel composition to enforcement of judgments. SAMUEL M. KRIEGER -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of verizon Sent: Monday, January 03, 2011 2:00 PM To: Law Religion issues for Law Academics Subject: Re: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? I use a contract clause to arbitrate using a Christian arbitration service. The clause spells out the service much like one would specify AAA to arbitrate. The clause does not give requirements for the arbitrators, just what organization will arbitrate. The reasoning is that the Bible tells Christians not to take their cases to secular courts. Does that make a difference? I was on a christian arbitration panel about 10 years ago. Alan Law Office of Alan Leigh Armstrong 18652 Florida St., Suite 225 Huntington Beach CA 92648-6006 714 375 1147 fax 714 782 6007 a...@alanarmstrong.com Serving the family and small business since 1984 ___ 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: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement?
But would this agreement be enforceable in Oklahoma ,with its ban on courts applying sharia law? Marc D. Stern Associate General Counsel 165 East 56th Street NY NY 10022 ste...@ajc.org 212.891.1480 646.287.2606 (cell) -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Monday, January 03, 2011 02:33 To: Law Religion issues for Law Academics; Eric Rassbach Subject: Re: May American court appoint only Muslim arbitrators,pursuant to an arbitration agreement? The court could apparently comply with the contract, and avoid all entanglement iwth religion, by appointing three Saudis. Does anybody see a problem with that? I assume that all Saudis are Muslim, or at least that the percentage is so high that the odds of appointing a non-Muslim Saudi are negligible. On Mon, 3 Jan 2011 12:34:05 -0500 Eric Rassbach erassb...@becketfund.org wrote: Here is the relevant provision (in translation) from the case-link Eugene sent around: The Arbitrator must be a Saudi national or a Moslem foreigner chosen amongst the members of the liberal professions or other persons. He may also be chosen amongst state officials after agreement of the authority on which he depends. Should there be several arbitrators, the Chairman must know the Shari'a, commercial laws and the customs in force in the Kingdom. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Monday, January 03, 2011 11:46 AM To: Law Religion issues for Law Academics Subject: RE: May American court appoint only Muslim arbitrators, pursuant toan arbitration agreement? I agree with Nate's neutral principles / entanglement argument. But I wonder whether one can so easily dismiss the equal protection argument from the enforcement of the contract. The court, after all, would have to decide who gets to perform an important and lucrative task based on that person's religion, whether or not it's merely enforcing a private contract. Of course the judge won't be acting based on religious animus, but he will be deliberately treating people differently based on religion. Also, is the Batson / J.E.B. line of cases relevant here, assuming that it can be expanded to peremptories based on religion and not just race or sex? (As I recall, most lower court cases that have considered the issue have indeed expanded Batson and J.E.B. to religion.) If a court may not allow a private party to challenge a juror based on religion, even when the judge wouldn't himself be discriminating based on religion, may a court allow private party agreement to provide for selection - by the judge - of an arbitrator based on religion? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Nathan Oman Sent: Monday, January 03, 2011 7:28 AM To: Law Religion issues for Law Academics Subject: Re: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? It seems difficult to find an equal protection violation if the Court is merely enforcing the contract. It seems to me that a more likely constitutional objection would be that the contract cannot be enforced without running afoul of the neutral principles doctrine. Can a court make a decision about who is or is not a Muslim without making theological choices? Would a shia muslim be acceptable? A member of the nation of Islam? Nathan B. Oman Associate Professor William Mary Law School P.O. Box 8795 Williamsburg, VA 23187 (757) 221-3919 I beseech you, in the bowels of Christ, think it possible you may be mistaken. -Oliver Cromwell On Mon, Jan 3, 2011 at 10:06 AM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: That's the issue lurking in In re Aramco Servs. Co.http://scholar.google.com/scholar_case?case=11521915190435651264, now on appeal to the Texas Supreme Court. DynCorp and Aramco Services (both of which were at the time Delaware corporations headquartered in Houston, though Aramco Services is a subsidiary of Saudi Aramcohttps://www.aramcoservices.com/about/, the Saudi government's oil company) signed an agreement under which DynCorp was to create a computer system (in the U.S.) and install it at Aramco's Saudi facilities. The contract provided that it was to be interpreted under Saudi law, and arbitrated under Saudi arbitration rules and regulations. Those rules and regulations apparently call for the arbitrators to be Muslim Saudi citizens. The trial court, however, appointed a three-arbitrator panel consisting of a Muslim (apparently a Saudi) and two non-Muslim non-Saudis. Aramco appealed, arguing that (1) under the contract the arbitrators were not supposed to be appoi nted by a court, and, (2) in the alternative, that the court
Re: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement?
Eugene, do you contend that knowledge of the Sharia is not a valid limitation or only that being a Muslim is not? On Jan 3, 2011, at 2:32 PM, Douglas Laycock wrote: must know the Shari'a, commercial laws and the customs in force in the Kingdom -- Prof. Steven D. Jamar vox: 202-806-8017 Associate Director, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ Love the pitcher less and the water more. Sufi Saying ___ 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: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement?
I suspect that the contract also specifies that it is to be interpreted and applied and enforced according to Sharia law of the Wahabi school and Saudi Arabian law where the Sharia is not determinative. While I am far more familiar with much of sharia law than most American lawyers and academics I have met, I am certainly not an expert on it in sucha a way as to be able to apply it to a contract with much confidence and I know even less about the Wahabi school or jurisprudence and even less still about Saudi law. To apply the contract according to the intent of the parties, doesn't the court need to insure that the aribrators know the law that the clause want them to understand. On Jan 3, 2011, at 2:32 PM, Douglas Laycock wrote: The court could apparently comply with the contract, and avoid all entanglement iwth religion, by appointing three Saudis. Does anybody see a problem with that? I assume that all Saudis are Muslim, or at least that the percentage is so high that the odds of appointing a non-Muslim Saudi are negligible. On Mon, 3 Jan 2011 12:34:05 -0500 Eric Rassbach erassb...@becketfund.org wrote: Here is the relevant provision (in translation) from the case-link Eugene sent around: The Arbitrator must be a Saudi national or a Moslem foreigner chosen amongst the members of the liberal professions or other persons. He may also be chosen amongst state officials after agreement of the authority on which he depends. Should there be several arbitrators, the Chairman must know the Shari'a, commercial laws and the customs in force in the Kingdom. -- Prof. Steven D. Jamar vox: 202-806-8017 Associate Director, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ It is by education I learn to do by choice, what other men do by the constraint of fear. Aristotle ___ 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: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement?
I recognize this isn't an employment discrimination case, but is the constitutional problem eased if the religion of the arbitrators could be considered a bona fide occupational qualification? We recognize constitutional exceptions for those, right? Per Marc's question, presuming the contract was otherwise valid under state law, it's not clear to me that merely appointing arbitrators who are qualified according to the terms of a contract amounts to a court applying sharia law. Evidently it's the arbitration panel, not the court, that is called on to apply sharia law in the course of interpreting the contract. Generally, the whole point of arbitration is to avoid the courts as much as possible through a private, extrajudicial mechanism for settling disputes. Parties typically agree on arbitrators without the involvement of a court. Thus, it seems to me that if an arbitration agreement is properly drafted, the constitutional issue of a court's discriminatory appointment process shouldn't arise as a matter of design. Steve Sanders Quoting Marc Stern ste...@ajc.org: But would this agreement be enforceable in Oklahoma ,with its ban on courts applying sharia law? Marc D. Stern Associate General Counsel 165 East 56th Street NY NY 10022 ste...@ajc.org 212.891.1480 646.287.2606 (cell) -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Monday, January 03, 2011 02:33 To: Law Religion issues for Law Academics; Eric Rassbach Subject: Re: May American court appoint only Muslim arbitrators,pursuant to an arbitration agreement? The court could apparently comply with the contract, and avoid all entanglement iwth religion, by appointing three Saudis. Does anybody see a problem with that? I assume that all Saudis are Muslim, or at least that the percentage is so high that the odds of appointing a non-Muslim Saudi are negligible. On Mon, 3 Jan 2011 12:34:05 -0500 Eric Rassbach erassb...@becketfund.org wrote: Here is the relevant provision (in translation) from the case-link Eugene sent around: The Arbitrator must be a Saudi national or a Moslem foreigner chosen amongst the members of the liberal professions or other persons. He may also be chosen amongst state officials after agreement of the authority on which he depends. Should there be several arbitrators, the Chairman must know the Shari'a, commercial laws and the customs in force in the Kingdom. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Monday, January 03, 2011 11:46 AM To: Law Religion issues for Law Academics Subject: RE: May American court appoint only Muslim arbitrators, pursuant toan arbitration agreement? I agree with Nate's neutral principles / entanglement argument. But I wonder whether one can so easily dismiss the equal protection argument from the enforcement of the contract. The court, after all, would have to decide who gets to perform an important and lucrative task based on that person's religion, whether or not it's merely enforcing a private contract. Of course the judge won't be acting based on religious animus, but he will be deliberately treating people differently based on religion. Also, is the Batson / J.E.B. line of cases relevant here, assuming that it can be expanded to peremptories based on religion and not just race or sex? (As I recall, most lower court cases that have considered the issue have indeed expanded Batson and J.E.B. to religion.) If a court may not allow a private party to challenge a juror based on religion, even when the judge wouldn't himself be discriminating based on religion, may a court allow private party agreement to provide for selection - by the judge - of an arbitrator based on religion? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Nathan Oman Sent: Monday, January 03, 2011 7:28 AM To: Law Religion issues for Law Academics Subject: Re: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? It seems difficult to find an equal protection violation if the Court is merely enforcing the contract. It seems to me that a more likely constitutional objection would be that the contract cannot be enforced without running afoul of the neutral principles doctrine. Can a court make a decision about who is or is not a Muslim without making theological choices? Would a shia muslim be acceptable? A member of the nation of Islam? Nathan B. Oman Associate Professor William Mary Law School P.O. Box 8795 Williamsburg, VA 23187 (757) 221-3919 I beseech you, in the bowels of Christ, think it possible you may be mistaken. -Oliver Cromwell On Mon, Jan 3,
RE: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement?
I'm not sure whether BFOQ doctrine as to religion helps us much as to the First Amendment analysis. That private entities aren't barred from discriminating based on religion in some contexts doesn't necessarily tell us, I think, that the government has an equally free hand. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Steve Sanders Sent: Monday, January 03, 2011 12:53 PM To: religionlaw@lists.ucla.edu Subject: RE: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? I recognize this isn't an employment discrimination case, but is the constitutional problem eased if the religion of the arbitrators could be considered a bona fide occupational qualification? We recognize constitutional exceptions for those, right? Per Marc's question, presuming the contract was otherwise valid under state law, it's not clear to me that merely appointing arbitrators who are qualified according to the terms of a contract amounts to a court applying sharia law. Evidently it's the arbitration panel, not the court, that is called on to apply sharia law in the course of interpreting the contract. Generally, the whole point of arbitration is to avoid the courts as much as possible through a private, extrajudicial mechanism for settling disputes. Parties typically agree on arbitrators without the involvement of a court. Thus, it seems to me that if an arbitration agreement is properly drafted, the constitutional issue of a court's discriminatory appointment process shouldn't arise as a matter of design. Steve Sanders Quoting Marc Stern ste...@ajc.org: But would this agreement be enforceable in Oklahoma ,with its ban on courts applying sharia law? Marc D. Stern Associate General Counsel 165 East 56th Street NY NY 10022 ste...@ajc.org 212.891.1480 646.287.2606 (cell) -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Monday, January 03, 2011 02:33 To: Law Religion issues for Law Academics; Eric Rassbach Subject: Re: May American court appoint only Muslim arbitrators,pursuant to an arbitration agreement? The court could apparently comply with the contract, and avoid all entanglement iwth religion, by appointing three Saudis. Does anybody see a problem with that? I assume that all Saudis are Muslim, or at least that the percentage is so high that the odds of appointing a non-Muslim Saudi are negligible. On Mon, 3 Jan 2011 12:34:05 -0500 Eric Rassbach erassb...@becketfund.org wrote: Here is the relevant provision (in translation) from the case-link Eugene sent around: The Arbitrator must be a Saudi national or a Moslem foreigner chosen amongst the members of the liberal professions or other persons. He may also be chosen amongst state officials after agreement of the authority on which he depends. Should there be several arbitrators, the Chairman must know the Shari'a, commercial laws and the customs in force in the Kingdom. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Monday, January 03, 2011 11:46 AM To: Law Religion issues for Law Academics Subject: RE: May American court appoint only Muslim arbitrators, pursuant toan arbitration agreement? I agree with Nate's neutral principles / entanglement argument. But I wonder whether one can so easily dismiss the equal protection argument from the enforcement of the contract. The court, after all, would have to decide who gets to perform an important and lucrative task based on that person's religion, whether or not it's merely enforcing a private contract. Of course the judge won't be acting based on religious animus, but he will be deliberately treating people differently based on religion. Also, is the Batson / J.E.B. line of cases relevant here, assuming that it can be expanded to peremptories based on religion and not just race or sex? (As I recall, most lower court cases that have considered the issue have indeed expanded Batson and J.E.B. to religion.) If a court may not allow a private party to challenge a juror based on religion, even when the judge wouldn't himself be discriminating based on religion, may a court allow private party agreement to provide for selection - by the judge - of an arbitrator based on religion? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Nathan Oman Sent: Monday, January 03, 2011 7:28 AM To: Law Religion issues for Law Academics Subject: Re: May American court appoint only
RE: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement?
My view is that being a Muslim is not a limitation on being an arbitrator that a court may properly enforce, given the First Amendment and the Equal Protection Clause. I don't think there's any constitutional difficulty with a court's deciding whether someone adequately knows Sharia as it is understood in Saudi Arabia, though I imagine a court would have a pretty difficult time resolving such matters; it would make much more sense to leave the appointment of such an arbitrator to a private entity (or to a Saudi government entity). There might be a constitutional difficulty - of the entanglement / religious decisions variety - with a court's deciding whether someone adequately knows Sharia as Islamic law as such, for instance if there's a dispute about whether a person's view on a Sharia question shows ignorance or just shows disagreement about theological matters. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Monday, January 03, 2011 12:38 PM To: Law Religion issues for Law Academics Subject: Re: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? Eugene, do you contend that knowledge of the Sharia is not a valid limitation or only that being a Muslim is not? On Jan 3, 2011, at 2:32 PM, Douglas Laycock wrote: must know the Shari'a, commercial laws and the customs in force in the Kingdom -- Prof. Steven D. Jamar vox: 202-806-8017 Associate Director, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ Love the pitcher less and the water more. Sufi Saying ___ 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: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement?
Is someone applying for a military chaplaincy required or expected to have some religious qualification or membership in a religious order? Could a nonbeliever who nonetheless has an extensive academic knowledge of religion sue for discrimination if she's denied such employment? On Jan 3, 2011, at 1:11 PM, Volokh, Eugene vol...@law.ucla.edu wrote: I'm not sure whether BFOQ doctrine as to religion helps us much as to the First Amendment analysis. That private entities aren't barred from discriminating based on religion in some contexts doesn't necessarily tell us, I think, that the government has an equally free hand. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Steve Sanders Sent: Monday, January 03, 2011 12:53 PM To: religionlaw@lists.ucla.edu Subject: RE: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? I recognize this isn't an employment discrimination case, but is the constitutional problem eased if the religion of the arbitrators could be considered a bona fide occupational qualification? We recognize constitutional exceptions for those, right? Per Marc's question, presuming the contract was otherwise valid under state law, it's not clear to me that merely appointing arbitrators who are qualified according to the terms of a contract amounts to a court applying sharia law. Evidently it's the arbitration panel, not the court, that is called on to apply sharia law in the course of interpreting the contract. Generally, the whole point of arbitration is to avoid the courts as much as possible through a private, extrajudicial mechanism for settling disputes. Parties typically agree on arbitrators without the involvement of a court. Thus, it seems to me that if an arbitration agreement is properly drafted, the constitutional issue of a court's discriminatory appointment process shouldn't arise as a matter of design. Steve Sanders Quoting Marc Stern ste...@ajc.org: But would this agreement be enforceable in Oklahoma ,with its ban on courts applying sharia law? Marc D. Stern Associate General Counsel 165 East 56th Street NY NY 10022 ste...@ajc.org 212.891.1480 646.287.2606 (cell) -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Monday, January 03, 2011 02:33 To: Law Religion issues for Law Academics; Eric Rassbach Subject: Re: May American court appoint only Muslim arbitrators,pursuant to an arbitration agreement? The court could apparently comply with the contract, and avoid all entanglement iwth religion, by appointing three Saudis. Does anybody see a problem with that? I assume that all Saudis are Muslim, or at least that the percentage is so high that the odds of appointing a non-Muslim Saudi are negligible. On Mon, 3 Jan 2011 12:34:05 -0500 Eric Rassbach erassb...@becketfund.org wrote: Here is the relevant provision (in translation) from the case-link Eugene sent around: The Arbitrator must be a Saudi national or a Moslem foreigner chosen amongst the members of the liberal professions or other persons. He may also be chosen amongst state officials after agreement of the authority on which he depends. Should there be several arbitrators, the Chairman must know the Shari'a, commercial laws and the customs in force in the Kingdom. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Monday, January 03, 2011 11:46 AM To: Law Religion issues for Law Academics Subject: RE: May American court appoint only Muslim arbitrators, pursuant toan arbitration agreement? I agree with Nate's neutral principles / entanglement argument. But I wonder whether one can so easily dismiss the equal protection argument from the enforcement of the contract. The court, after all, would have to decide who gets to perform an important and lucrative task based on that person's religion, whether or not it's merely enforcing a private contract. Of course the judge won't be acting based on religious animus, but he will be deliberately treating people differently based on religion. Also, is the Batson / J.E.B. line of cases relevant here, assuming that it can be expanded to peremptories based on religion and not just race or sex? (As I recall, most lower court cases that have considered the issue have indeed expanded Batson and J.E.B. to religion.) If a court may not allow a private party to challenge a juror based on religion, even when the judge wouldn't himself be discriminating based on religion, may a court allow private party agreement to provide for selection - by the judge - of an
RE: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement?
One difficulty is that we don't have much law on what constitutes a BFOQ where religion is concerned. But I think military (and prison) chaplaincy cases are generally treated very differently under the First Amendment than other kinds of cases, as to a wide range of First Amendment doctrines -- the ban on religious discrimination, the ban on religious decisions by the government, the ban on government funding of religious practice, and more. So I'm not sure the BFOQ analysis would be that helpful here, or that those cases are generalizable outside the military/prison context. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Steve Sanders Sent: Monday, January 03, 2011 3:28 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? Is someone applying for a military chaplaincy required or expected to have some religious qualification or membership in a religious order? Could a nonbeliever who nonetheless has an extensive academic knowledge of religion sue for discrimination if she's denied such employment? On Jan 3, 2011, at 1:11 PM, Volokh, Eugene vol...@law.ucla.edu wrote: I'm not sure whether BFOQ doctrine as to religion helps us much as to the First Amendment analysis. That private entities aren't barred from discriminating based on religion in some contexts doesn't necessarily tell us, I think, that the government has an equally free hand. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Steve Sanders Sent: Monday, January 03, 2011 12:53 PM To: religionlaw@lists.ucla.edu Subject: RE: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? I recognize this isn't an employment discrimination case, but is the constitutional problem eased if the religion of the arbitrators could be considered a bona fide occupational qualification? We recognize constitutional exceptions for those, right? Per Marc's question, presuming the contract was otherwise valid under state law, it's not clear to me that merely appointing arbitrators who are qualified according to the terms of a contract amounts to a court applying sharia law. Evidently it's the arbitration panel, not the court, that is called on to apply sharia law in the course of interpreting the contract. Generally, the whole point of arbitration is to avoid the courts as much as possible through a private, extrajudicial mechanism for settling disputes. Parties typically agree on arbitrators without the involvement of a court. Thus, it seems to me that if an arbitration agreement is properly drafted, the constitutional issue of a court's discriminatory appointment process shouldn't arise as a matter of design. Steve Sanders Quoting Marc Stern ste...@ajc.org: But would this agreement be enforceable in Oklahoma ,with its ban on courts applying sharia law? Marc D. Stern Associate General Counsel 165 East 56th Street NY NY 10022 ste...@ajc.org 212.891.1480 646.287.2606 (cell) -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Monday, January 03, 2011 02:33 To: Law Religion issues for Law Academics; Eric Rassbach Subject: Re: May American court appoint only Muslim arbitrators,pursuant to an arbitration agreement? The court could apparently comply with the contract, and avoid all entanglement iwth religion, by appointing three Saudis. Does anybody see a problem with that? I assume that all Saudis are Muslim, or at least that the percentage is so high that the odds of appointing a non-Muslim Saudi are negligible. On Mon, 3 Jan 2011 12:34:05 -0500 Eric Rassbach erassb...@becketfund.org wrote: Here is the relevant provision (in translation) from the case-link Eugene sent around: The Arbitrator must be a Saudi national or a Moslem foreigner chosen amongst the members of the liberal professions or other persons. He may also be chosen amongst state officials after agreement of the authority on which he depends. Should there be several arbitrators, the Chairman must know the Shari'a, commercial laws and the customs in force in the Kingdom. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Monday, January 03, 2011 11:46 AM To: Law Religion issues for Law Academics Subject: RE: May American court appoint only Muslim arbitrators, pursuant toan arbitration agreement?
RE: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement?
What is the entanglement problem in Eugene's view if the Court is not being asked to decide a religious question? If ARAMCO objected to the appointment of an Ahmadi arbitrator as non-Muslim then I could see how the Court would be unable to resolve the dispute. But appointing a Muslim arbitrator that both the parties agree is Muslim means that a court does not have to reach a religious question because it has been answered by the parties before the Court can get started. And since a court can't decide whether an Ahmadi is a Muslim or not, or any similar disputed question, it will never appoint a Muslim as an arbitrator where the parties disagree about whether he/she is Muslim. I also don't see how it creates other entanglement problems such as ongoing surveillance. For the same reasons I don't see a problem where a court enforces a corporation sole's documents. A court does not get entangled in a religious question by deciding that Mr. X is the Catholic Bishop of Utopia. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Monday, January 03, 2011 4:19 PM To: Law Religion issues for Law Academics Subject: RE: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? My view is that being a Muslim is not a limitation on being an arbitrator that a court may properly enforce, given the First Amendment and the Equal Protection Clause. I don’t think there’s any constitutional difficulty with a court’s deciding whether someone adequately knows Sharia as it is understood in Saudi Arabia, though I imagine a court would have a pretty difficult time resolving such matters; it would make much more sense to leave the appointment of such an arbitrator to a private entity (or to a Saudi government entity). There might be a constitutional difficulty – of the entanglement / religious decisions variety – with a court’s deciding whether someone adequately knows Sharia as Islamic law as such, for instance if there’s a dispute about whether a person’s view on a Sharia question shows ignorance or just shows disagreement about theological matters. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Monday, January 03, 2011 12:38 PM To: Law Religion issues for Law Academics Subject: Re: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? Eugene, do you contend that knowledge of the Sharia is not a valid limitation or only that being a Muslim is not? On Jan 3, 2011, at 2:32 PM, Douglas Laycock wrote: must know the Shari'a, commercial laws and the customs in force in the Kingdom -- Prof. Steven D. Jamar vox: 202-806-8017 Associate Director, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ Love the pitcher less and the water more. Sufi Saying ___ 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: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement?
Eugene, In your mind does the constitutional difficulty arise from the court choosing a Muslim arbitrator under the contract or from the enforcement of a contract involving religious terms? Suppose, for example, that the parties had -- pursuant to the contract -- chosen Muslim arbitrators, who had arbitrated the dispute, and then one the parties sought to enforce the arbitration award in court. Could the other party defend on the ground that the court was being asked to enforce an arbitration that was infected with unconstitutional religious discrimination? Frankly, I am skeptical of the equal protection argument here. I don't see how you can get an equal protection violation without doing some sort of Shelly v. Kramer end run around the state action doctrine, and I think that such an end run is both unlikely to succeed and as a normative matter should be done only sparingly. I think that we want to allow people to use the law to create illiberal arrangements, so long as such arrangements don't pose a threat to the basic liberal order. The widespread use of racially restrictive covenants given the American experience with race posed such a threat. I have a hard time seeing that voluntary commercial arbitration under sharia law poses such a threat. Hence, in response to Marci's initial question of what about a contract that called for an arbiter based on race or gender, my default position is to say No problem. Let people write the contracts that they wish to write. This, however, is only a default. If Marci and other skeptics can tell a sufficiently compelling story about how this particular practice or form of private discrimination threatens the liberal order, then I think that we have a reason for denying enforcement. (I suspect that Marci and I would differ on what constitutes a threat to the liberal order.) Even in these cases, I think that as a doctrinal matter it makes more sense to do this via things like the void as against public policy doctrine under contract law rather than through a convoluted reading of the equal protection clause. I think that the neutral principles doctrine has a bit more traction, although even there I am skeptical. At some point I think that the first amendment is implicated when a court makes religious identifications, but it seems to me that in order for courts to be cognicient of religion in ways that I am assuming are uncontroversial -- such as for purposes of providing free exercise protection or policing establishment clause violations -- courts will have to be able to make religious identifications. It is not clear to me that a contract calling for a Saudi national who is a Muslim will -- as a practical matter -- raise these sorts of problems. A contract calling for a pious and orthodox Muslim in contrast, might. Best, NBO Nathan B. Oman Associate Professor William Mary Law School P.O. Box 8795 Williamsburg, VA 23187 (757) 221-3919 I beseech you, in the bowels of Christ, think it possible you may be mistaken. -Oliver Cromwell On Mon, Jan 3, 2011 at 4:19 PM, Volokh, Eugene vol...@law.ucla.edu wrote: My view is that being a Muslim is not a limitation on being an arbitrator that a court may properly enforce, given the First Amendment and the Equal Protection Clause. I don’t think there’s any constitutional difficulty with a court’s deciding whether someone adequately knows Sharia as it is understood in Saudi Arabia, though I imagine a court would have a pretty difficult time resolving such matters; it would make much more sense to leave the appointment of such an arbitrator to a private entity (or to a Saudi government entity). There might be a constitutional difficulty – of the entanglement / religious decisions variety – with a court’s deciding whether someone adequately knows Sharia as Islamic law as such, for instance if there’s a dispute about whether a person’s view on a Sharia question shows ignorance or just shows disagreement about theological matters. Eugene *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Steven Jamar *Sent:* Monday, January 03, 2011 12:38 PM *To:* Law Religion issues for Law Academics *Subject:* Re: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? Eugene, do you contend that knowledge of the Sharia is not a valid limitation or only that being a Muslim is not? On Jan 3, 2011, at 2:32 PM, Douglas Laycock wrote: must know the Shari'a, commercial laws and the customs in force in the Kingdom -- Prof. Steven D. Jamar vox: 202-806-8017 Associate Director, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ Love the pitcher less and the water more.
RE: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement?
I think that the entanglement question would most clearly arise when the dispute is whether someone really knows Sharia as Islamic law (rather than just as Saudi law), and the heart of the disagreement really goes to how he interprets Islamic law. I think there would also be an entanglement question if the court appoints an arbitrator that one party thinks is Muslim and the other doesn't. Nor could that be resolved, I think, by simply saying that the court should just reject any arbitrator to whom the party objects on the grounds of the arbitrator's supposed non-Muslim-ness, unless the contract so provides. The clearer First Amendment problem, I think, stems simply from the court's selecting an arbitrator based on religion, even when the contract so demands. But that is a violation of the nondiscrimination doctrine of First Amendment law, not the nonentanglement doctrine. Also, in the example that Eric points to -- where a court considers appointing an Ahmadi as an arbitrator, one party objects by saying he's not really Muslim, and the court therefore rejects the Ahmadi -- the religious discrimination strikes me as particularly serious, because there isn't even the justification that the judge is just enforcing the contract in appointing a non-Ahmadi. The contract just says that the arbitrator must be Muslim; a judge's rejecting someone because some people don't think he's really Muslim strikes me as religious discrimination by the court, and not just in implementing the clear terms of the contract. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Eric Rassbach Sent: Monday, January 03, 2011 1:54 PM To: Law Religion issues for Law Academics Subject: RE: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? What is the entanglement problem in Eugene's view if the Court is not being asked to decide a religious question? If ARAMCO objected to the appointment of an Ahmadi arbitrator as non-Muslim then I could see how the Court would be unable to resolve the dispute. But appointing a Muslim arbitrator that both the parties agree is Muslim means that a court does not have to reach a religious question because it has been answered by the parties before the Court can get started. And since a court can't decide whether an Ahmadi is a Muslim or not, or any similar disputed question, it will never appoint a Muslim as an arbitrator where the parties disagree about whether he/she is Muslim. I also don't see how it creates other entanglement problems such as ongoing surveillance. For the same reasons I don't see a problem where a court enforces a corporation sole's documents. A court does not get entangled in a religious question by deciding that Mr. X is the Catholic Bishop of Utopia. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Monday, January 03, 2011 4:19 PM To: Law Religion issues for Law Academics Subject: RE: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? My view is that being a Muslim is not a limitation on being an arbitrator that a court may properly enforce, given the First Amendment and the Equal Protection Clause. I don't think there's any constitutional difficulty with a court's deciding whether someone adequately knows Sharia as it is understood in Saudi Arabia, though I imagine a court would have a pretty difficult time resolving such matters; it would make much more sense to leave the appointment of such an arbitrator to a private entity (or to a Saudi government entity). There might be a constitutional difficulty - of the entanglement / religious decisions variety - with a court's deciding whether someone adequately knows Sharia as Islamic law as such, for instance if there's a dispute about whether a person's view on a Sharia question shows ignorance or just shows disagreement about theological matters. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Monday, January 03, 2011 12:38 PM To: Law Religion issues for Law Academics Subject: Re: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? Eugene, do you contend that knowledge of the Sharia is not a valid limitation or only that being a Muslim is not? On Jan 3, 2011, at 2:32 PM, Douglas Laycock wrote: must know the Shari'a, commercial laws and the customs in force in the Kingdom -- Prof. Steven D. Jamar vox: 202-806-8017 Associate Director, Institute for Intellectual Property and Social
RE: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement?
Eugene, In your mind does the constitutional difficulty arise from the court choosing a Muslim arbitrator under the contract or from the enforcement of a contract involving religious terms? The former; I don't see any inherent problem in enforcing the results of a religious arbitration. Suppose, for example, that the parties had -- pursuant to the contract -- chosen Muslim arbitrators, who had arbitrated the dispute, and then one the parties sought to enforce the arbitration award in court. Could the other party defend on the ground that the court was being asked to enforce an arbitration that was infected with unconstitutional religious discrimination? Frankly, I am skeptical of the equal protection argument here. I don't see how you can get an equal protection violation without doing some sort of Shelly v. Kramer end run around the state action doctrine, and I think that such an end run is both unlikely to succeed and as a normative matter should be done only sparingly. I'm no great fan of the more expansive readings of Shelly. But when a government actor is deciding who gets a particular (lucrative) position based on that person's religion, it seems to me that state action is eminently present, or more specifically that the government actor is discriminating based on religion in presumptive violation of the Free Exercise Clause and the First Amendment. To be sure, the government actor isn't motivated by religious animus; it's just trying to enforce a contract. But it is still deliberately treating people different from other people based on whether they are Muslims or not. (When the court just enforces an arbitration conducted by a private party, there is not such discrimination by a government entity, even if the private party discriminates based on religion or sex in selecting the arbitrators.) I think that we want to allow people to use the law to create illiberal arrangements, so long as such arrangements don't pose a threat to the basic liberal order. The widespread use of racially restrictive covenants given the American experience with race posed such a threat. I have a hard time seeing that voluntary commercial arbitration under sharia law poses such a threat. Hence, in response to Marci's initial question of what about a contract that called for an arbiter based on race or gender, my default position is to say No problem. Let people write the contracts that they wish to write. This, however, is only a default. If Marci and other skeptics can tell a sufficiently compelling story about how this particular practice or form of private discrimination threatens the liberal order, then I think that we have a reason for denying enforcement. (I suspect that Marci and I would differ on what constitutes a threat to the liberal order.) Even in these cases, I think that as a doctrinal matter it makes more sense to do this via things like the void as against public policy doctrine under contract law rather than through a convoluted reading of the equal protection clause. I think that the neutral principles doctrine has a bit more traction, although even there I am skeptical. At some point I think that the first amendment is implicated when a court makes religious identifications, but it seems to me that in order for courts to be cognicient of religion in ways that I am assuming are uncontroversial -- such as for purposes of providing free exercise protection or policing establishment clause violations -- courts will have to be able to make religious identifications. It is not clear to me that a contract calling for a Saudi national who is a Muslim will -- as a practical matter -- raise these sorts of problems. A contract calling for a pious and orthodox Muslim in contrast, might. ___ 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: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement?
To say that military and prison chaplains get special treatment under First Amendment law isn't to explain why that should be so or why it should be restricted to that context. With chaplains, the govt appoints people based on specific religious qualifications to attend to the specific needs of an identifiable group. Under the hypo we're dealing with here it seems to me that's all the court is being asked to do. If it isn't objectionable in one context, why is it in another? On Jan 3, 2011, at 1:31 PM, Volokh, Eugene vol...@law.ucla.edu wrote: One difficulty is that we don't have much law on what constitutes a BFOQ where religion is concerned. But I think military (and prison) chaplaincy cases are generally treated very differently under the First Amendment than other kinds of cases, as to a wide range of First Amendment doctrines -- the ban on religious discrimination, the ban on religious decisions by the government, the ban on government funding of religious practice, and more. So I'm not sure the BFOQ analysis would be that helpful here, or that those cases are generalizable outside the military/prison context. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Steve Sanders Sent: Monday, January 03, 2011 3:28 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? Is someone applying for a military chaplaincy required or expected to have some religious qualification or membership in a religious order? Could a nonbeliever who nonetheless has an extensive academic knowledge of religion sue for discrimination if she's denied such employment? On Jan 3, 2011, at 1:11 PM, Volokh, Eugene vol...@law.ucla.edu wrote: I'm not sure whether BFOQ doctrine as to religion helps us much as to the First Amendment analysis. That private entities aren't barred from discriminating based on religion in some contexts doesn't necessarily tell us, I think, that the government has an equally free hand. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Steve Sanders Sent: Monday, January 03, 2011 12:53 PM To: religionlaw@lists.ucla.edu Subject: RE: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? I recognize this isn't an employment discrimination case, but is the constitutional problem eased if the religion of the arbitrators could be considered a bona fide occupational qualification? We recognize constitutional exceptions for those, right? Per Marc's question, presuming the contract was otherwise valid under state law, it's not clear to me that merely appointing arbitrators who are qualified according to the terms of a contract amounts to a court applying sharia law. Evidently it's the arbitration panel, not the court, that is called on to apply sharia law in the course of interpreting the contract. Generally, the whole point of arbitration is to avoid the courts as much as possible through a private, extrajudicial mechanism for settling disputes. Parties typically agree on arbitrators without the involvement of a court. Thus, it seems to me that if an arbitration agreement is properly drafted, the constitutional issue of a court's discriminatory appointment process shouldn't arise as a matter of design. Steve Sanders Quoting Marc Stern ste...@ajc.org: But would this agreement be enforceable in Oklahoma ,with its ban on courts applying sharia law? Marc D. Stern Associate General Counsel 165 East 56th Street NY NY 10022 ste...@ajc.org 212.891.1480 646.287.2606 (cell) -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Monday, January 03, 2011 02:33 To: Law Religion issues for Law Academics; Eric Rassbach Subject: Re: May American court appoint only Muslim arbitrators,pursuant to an arbitration agreement? The court could apparently comply with the contract, and avoid all entanglement iwth religion, by appointing three Saudis. Does anybody see a problem with that? I assume that all Saudis are Muslim, or at least that the percentage is so high that the odds of appointing a non-Muslim Saudi are negligible. On Mon, 3 Jan 2011 12:34:05 -0500 Eric Rassbach erassb...@becketfund.org wrote: Here is the relevant provision (in translation) from the case-link Eugene sent around: The Arbitrator must be a Saudi national or a Moslem foreigner chosen amongst the members of the liberal professions or other persons. He may also be chosen amongst state officials after agreement of the authority on which he depends. Should there be
Re: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement?
I’m no great fan of the more expansive readings of Shelly. But when a government actor is deciding who gets a particular (lucrative) position based on that person’s religion, it seems to me that state action is eminently present, or more specifically that the government actor is discriminating based on religion in presumptive violation of the Free Exercise Clause and the First Amendment. To be sure, the government actor isn’t motivated by religious animus; it’s just trying to enforce a contract. But it is still deliberately treating people different from other people based on whether they are Muslims or not. (When the court just enforces an arbitration conducted by a private party, there is not such discrimination by a government entity, even if the private party discriminates based on religion or sex in selecting the arbitrators.) Why say that the government is discriminating on the basis of religion if it is simply apply neutral principles of contract law. I understand that there is a question as to whether the contract can be enforced using merely neutral principles, but that isn't your argument here. Rather, I take it that your objection rests on a non-discrimination principle. Where is the discriminatory legal principle at issue? I think that we want to allow people to use the law to create illiberal arrangements, so long as such arrangements don't pose a threat to the basic liberal order. The widespread use of racially restrictive covenants given the American experience with race posed such a threat. I have a hard time seeing that voluntary commercial arbitration under sharia law poses such a threat. Hence, in response to Marci's initial question of what about a contract that called for an arbiter based on race or gender, my default position is to say No problem. Let people write the contracts that they wish to write. This, however, is only a default. If Marci and other skeptics can tell a sufficiently compelling story about how this particular practice or form of private discrimination threatens the liberal order, then I think that we have a reason for denying enforcement. (I suspect that Marci and I would differ on what constitutes a threat to the liberal order.) Even in these cases, I think that as a doctrinal matter it makes more sense to do this via things like the void as against public policy doctrine under contract law rather than through a convoluted reading of the equal protection clause. I think that the neutral principles doctrine has a bit more traction, although even there I am skeptical. At some point I think that the first amendment is implicated when a court makes religious identifications, but it seems to me that in order for courts to be cognicient of religion in ways that I am assuming are uncontroversial -- such as for purposes of providing free exercise protection or policing establishment clause violations -- courts will have to be able to make religious identifications. It is not clear to me that a contract calling for a Saudi national who is a Muslim will -- as a practical matter -- raise these sorts of problems. A contract calling for a pious and orthodox Muslim in contrast, might. ___ 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: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement?
My sense is that the prison and military contexts aren't just justified on the grounds of the governments attend[ing] to the specific needs of an identifiable group -- that would equally apply to parochial school funding (even of a sort that goes far beyond what was allowed by Zelman and Mitchell v. Helms), the law struck down in Thornton v. Caldor, the law struck down in Kiryas Joel, and more. Rather, the premise, as I understand it, is that in the few intrusive-control contexts in which the government segregates people from normal religious life, and limits their ability to access their own religious institutions, the government may itself provide religious services (even though it would normally be broadly barred from that, by a wide range of First Amendment doctrines). In the court system, I don't see any similar limitation on people's ability to get religious dispute resolution: People remain free to have their disputes arbitrated by religious institutions, and to have those arbitrations be enforced, so long as they simply provide in their contracts that the arbitrators are to be chosen by some private entity (or even some foreign government entity). So I see no special justification for relaxing the normal First Amendment non-discrimination and no-religious-decisions rules here, nor any substantial similarity to the highly unusual (as First Amendme! nt law goes) contexts of prisons and the military. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Steve Sanders Sent: Monday, January 03, 2011 4:09 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? To say that military and prison chaplains get special treatment under First Amendment law isn't to explain why that should be so or why it should be restricted to that context. With chaplains, the govt appoints people based on specific religious qualifications to attend to the specific needs of an identifiable group. Under the hypo we're dealing with here it seems to me that's all the court is being asked to do. If it isn't objectionable in one context, why is it in another? On Jan 3, 2011, at 1:31 PM, Volokh, Eugene vol...@law.ucla.edu wrote: One difficulty is that we don't have much law on what constitutes a BFOQ where religion is concerned. But I think military (and prison) chaplaincy cases are generally treated very differently under the First Amendment than other kinds of cases, as to a wide range of First Amendment doctrines -- the ban on religious discrimination, the ban on religious decisions by the government, the ban on government funding of religious practice, and more. So I'm not sure the BFOQ analysis would be that helpful here, or that those cases are generalizable outside the military/prison context. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Steve Sanders Sent: Monday, January 03, 2011 3:28 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? Is someone applying for a military chaplaincy required or expected to have some religious qualification or membership in a religious order? Could a nonbeliever who nonetheless has an extensive academic knowledge of religion sue for discrimination if she's denied such employment? On Jan 3, 2011, at 1:11 PM, Volokh, Eugene vol...@law.ucla.edu wrote: I'm not sure whether BFOQ doctrine as to religion helps us much as to the First Amendment analysis. That private entities aren't barred from discriminating based on religion in some contexts doesn't necessarily tell us, I think, that the government has an equally free hand. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Steve Sanders Sent: Monday, January 03, 2011 12:53 PM To: religionlaw@lists.ucla.edu Subject: RE: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? I recognize this isn't an employment discrimination case, but is the constitutional problem eased if the religion of the arbitrators could be considered a bona fide occupational qualification? We recognize constitutional exceptions for those, right? Per Marc's question, presuming the contract was otherwise valid under state law, it's not clear to me that merely appointing arbitrators who are qualified according to the terms of a contract amounts to a court applying sharia law. Evidently it's the arbitration panel, not the
RE: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement?
I wrote: I'm no great fan of the more expansive readings of Shelly. But when a government actor is deciding who gets a particular (lucrative) position based on that person's religion, it seems to me that state action is eminently present, or more specifically that the government actor is discriminating based on religion in presumptive violation of the Free Exercise Clause and the First Amendment. To be sure, the government actor isn't motivated by religious animus; it's just trying to enforce a contract. But it is still deliberately treating people different from other people based on whether they are Muslims or not. (When the court just enforces an arbitration conducted by a private party, there is not such discrimination by a government entity, even if the private party discriminates based on religion or sex in selecting the arbitrators.) Nathan Oman writes: Why say that the government is discriminating on the basis of religion if it is simply apply neutral principles of contract law. I understand that there is a question as to whether the contract can be enforced using merely neutral principles, but that isn't your argument here. Rather, I take it that your objection rests on a non-discrimination principle. Where is the discriminatory legal principle at issue? I don't see a discriminatory legal principle at issue here. But I see a discriminatory decision by a judge: I will not appoint Joe Schmoe as an arbitrator, because he is not Muslim. To be sure, the judge is just enforcing a contract. But he is still a government actor, allocating a particular post based on religion. That he is just doing that in enforcing a contract does not, I think, prevent his discriminatory conduct from being state action. By the way, what do you think about a state university administering a privately funded scholarship for Christian students? Eugene ___ 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: May American court appoint only Muslim arbitrators, pursuant toan arbitration agreement?
Nathan is correct in that I would think judicial enforcement of contracts requiring religious arbitrators has plenty of opportunities to threaten the liberal state. First, I assume as a matter of contract law that any obligations arising out of such agreements that involve otherwise illegal conduct are void. So genital mutilation, trading of girls as wives (or simply for procreation), aiding polygamy, covering up child abuse when it is required to be reported, and the settling of debts through indentured servitude are out of the picture. Second, does commercial arbitration ever involve real property? If so, we are right back in Shelley v Kraemer territory, no? One of the reasons in my view justifying the Shelley result is that such contracts shut out minorities for generations to come. The time lag of the deal is troubling Third, I see little difference between this and Bob Jones or Shelley, so I think the racial category is likely to cause courts great trouble Finally, why isn't a liberal society better served by enforcement of such agreements within their own universes, which would leave the civil courts out? Religious cultures have plenty of ways to penalize their members including excommunication or shunning. Why are civil courts needed exceopt to shore up the power of the religion? Marci Sent from my Verizon Wireless BlackBerry -Original Message- From: Nathan Oman nate.o...@gmail.com Sender: religionlaw-boun...@lists.ucla.edu Date: Mon, 3 Jan 2011 16:55:34 To: Law Religion issues for Law Academicsreligionlaw@lists.ucla.edu Reply-To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Subject: Re: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? ___ 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: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement?
It is helpful to remember that in the actual case the contract (at least according to the Texas Ct. of Appeals) did not call the for a court to appoint the arbitrator(s). As Steve Sanders pointed out, a properly drafted contract would avoid the problem we are discussing by providing for private appointment of arbitrators. The question would still remain whether an arbitration award given by such arbitrators should be enforced by a US court. I don't know much about them, but I think the Jewish arbitration cases say the answer is yes. There would still, I suppose, be a question whether the arbitral award might be denied enforcement on other grounds, such as arbitrator prejudice against non-Muslim-owned entities, if such prejudice could be shown, or other bases for denial of enforcement of arbitral awards in general. Mark Scarberry Pepperdine From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Monday, January 03, 2011 7:06 AM To: Law Religion issues for Law Academics Subject: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? That's the issue lurking in In re Aramco Servs. Co.http://scholar.google.com/scholar_case?case=11521915190435651264, now on appeal to the Texas Supreme Court. DynCorp and Aramco Services (both of which were at the time Delaware corporations headquartered in Houston, though Aramco Services is a subsidiary of Saudi Aramcohttps://www.aramcoservices.com/about/, the Saudi government's oil company) signed an agreement under which DynCorp was to create a computer system (in the U.S.) and install it at Aramco's Saudi facilities. The contract provided that it was to be interpreted under Saudi law, and arbitrated under Saudi arbitration rules and regulations. Those rules and regulations apparently call for the arbitrators to be Muslim Saudi citizens. The trial court, however, appointed a three-arbitrator panel consisting of a Muslim (apparently a Saudi) and two non-Muslim non-Saudis. Aramco appealed, arguing that (1) under the contract the arbitrators were not supposed to be appointed by a court, and, (2) in the alternative, that the court erred in appointing non-Muslim non-Saudis. The Texas Court of Appeals agreed with Aramco on item 1, and therefore didn't reach item 2. But there is an interesting constitutional issue lurking in the background: If a contract does call for a court to appoint arbitrators, and provides that the arbitrators must be Muslims (or Jews or Catholics or what have you), may a court implement that provision, or does the First Amendment or the Equal Protection Clause bar the court - a government entity - from discriminating based on religion this way, even pursuant to a party agreement? Any thoughts on this? Eugene ___ To post, send message to Religionlaw@lists.ucla.edu 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: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement?
Eugene writes, By the way, what do you think about a state university administering a privately funded scholarship for Christian students? Just to clarify your point, Eugene - Is the distinction you are drawing one that distinguishes between government resources being allocated by private decision makers on the basis of religion and a government actor allocating private resources on the basis of religion. So for example - if to avoid overcrowding in the courts, the government financed arbitration panels to resolve contract disputes and the parties agreed to select arbitrators of a particular faith to hear their dispute, that would not be a problem. But if a judge chooses arbitrators based on religious belief who will be paid by the parties (according to the terms of the arbitration clause in their contract), that would create a constitutional problem. Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Monday, January 03, 2011 2:29 PM To: Law Religion issues for Law Academics Subject: RE: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? I wrote: I'm no great fan of the more expansive readings of Shelly. But when a government actor is deciding who gets a particular (lucrative) position based on that person's religion, it seems to me that state action is eminently present, or more specifically that the government actor is discriminating based on religion in presumptive violation of the Free Exercise Clause and the First Amendment. To be sure, the government actor isn't motivated by religious animus; it's just trying to enforce a contract. But it is still deliberately treating people different from other people based on whether they are Muslims or not. (When the court just enforces an arbitration conducted by a private party, there is not such discrimination by a government entity, even if the private party discriminates based on religion or sex in selecting the arbitrators.) Nathan Oman writes: Why say that the government is discriminating on the basis of religion if it is simply apply neutral principles of contract law. I understand that there is a question as to whether the contract can be enforced using merely neutral principles, but that isn't your argument here. Rather, I take it that your objection rests on a non-discrimination principle. Where is the discriminatory legal principle at issue? I don't see a discriminatory legal principle at issue here. But I see a discriminatory decision by a judge: I will not appoint Joe Schmoe as an arbitrator, because he is not Muslim. To be sure, the judge is just enforcing a contract. But he is still a government actor, allocating a particular post based on religion. That he is just doing that in enforcing a contract does not, I think, prevent his discriminatory conduct from being state action. By the way, what do you think about a state university administering a privately funded scholarship for Christian students? Eugene ___ 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: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement?
A few thoughts in response to Eugene's email below: Eugene's recounting of what would happen in the Ahmadi hypo leaves out an important step: after one party objects to the Ahmadi as non-Muslim, the Court won't just act immediately. The other party to the arbitration has to take a position. If both (or all) the parties can't agree before the court that the Ahmadi is not Muslim for purposes of the contract, the Court cannot proceed. Thus the Court will always be dealing with a stipulation about the underlying religious question, not simply one party's objection, and won't be deciding a religious question. If the parties can't agree one way or the other, then the Court can't act. I also don't accept Eugene's main point. How is it discrimination (or entanglement) for a court to abstain from deciding an underlying religious question? Was the Supreme Court discriminating against one group of Russian Orthodox by deciding Kedroff the way it did? It is not discrimination in the invidious discrimination sense for one person to say that another person is not really [Religion X] or to exclude them from a particular religious group. That sort of distinction is in the very nature of religious discourse, which *always* includes disputes over things like identity (cf. whether a child born to a Jewish father and a non-Jewish mother is halachically Jewish). It is no more discriminatory or immoral for a court to uphold two parties' agreed understanding of who happens to be Muslim (whether that is set forth in the terms of a contract or by stipulation before the Court), than it is for a court or the police to order someone forcibly removed from a house of wor! ship who has been rejected for leaving the faith. What if the contract said that the arbitrator had to be the sitting Roman Catholic Bishop of Rome? If the parties agree the Pope is Catholic, who is the court to disagree? Should law profs or other potential arbitrators feel discriminated against because they weren't on the list? Re Eugene's other (and I take it primary -- the original post mentioned only the Muslim identity of the arbitrators -- ) concern about entanglement, I don't see how being knowledgeable about Sharia necessarily implicates belief in a religion. I've learned a lot about particular aspects of Sharia representing Muslim clients but that is not affected by whether I am a Muslim or not. Finally, I add a personal note of surprise that I seem to be taking a more classically libertarian position than Eugene is! There's got to be something wrong with that. :) Eric From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Monday, January 03, 2011 5:04 PM To: Law Religion issues for Law Academics Subject: RE: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? I think that the entanglement question would most clearly arise when the dispute is whether someone really knows Sharia as Islamic law (rather than just as Saudi law), and the heart of the disagreement really goes to how he interprets Islamic law. I think there would also be an entanglement question if the court appoints an arbitrator that one party thinks is Muslim and the other doesn't. Nor could that be resolved, I think, by simply saying that the court should just reject any arbitrator to whom the party objects on the grounds of the arbitrator's supposed non-Muslim-ness, unless the contract so provides. The clearer First Amendment problem, I think, stems simply from the court's selecting an arbitrator based on religion, even when the contract so demands. But that is a violation of the nondiscrimination doctrine of First Amendment law, not the nonentanglement doctrine. Also, in the example that Eric points to -- where a court considers appointing an Ahmadi as an arbitrator, one party objects by saying he's not really Muslim, and the court therefore rejects the Ahmadi -- the religious discrimination strikes me as particularly serious, because there isn't even the justification that the judge is just enforcing the contract in appointing a non-Ahmadi. The contract just says that the arbitrator must be Muslim; a judge's rejecting someone because some people don't think he's really Muslim strikes me as religious discrimination by the court, and not just in implementing the clear terms of the contract. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Eric Rassbach Sent: Monday, January 03, 2011 1:54 PM To: Law Religion issues for Law Academics Subject: RE: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? What is the entanglement problem in Eugene's view if the Court is not being asked to decide a
Re: May American court appoint only Muslim arbitrators, pursuant to an arb...
Isn't the answer to this question, Eric, that there is no single Sharia law? Interpretation of Sharia law requires a court to pick and choose between Sharia doctrines. It is not terribly different from the wide variety of Christian interpretations of the Bible. Marci In a message dated 1/3/2011 7:37:08 P.M. Eastern Standard Time, erassb...@becketfund.org writes: e Eugene's other (and I take it primary -- the original post mentioned only the Muslim identity of the arbitrators -- ) concern about entanglement, I don't see how being knowledgeable about Sharia necessarily implicates belief in a religion. I've learned a lot about particular aspects of Sharia representing Muslim clients but that is not affected by whether I am a Muslim or not. ___ 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.
Military chaplains
Does anyone actually know the current appointment system for military chaplains? A fairly high ranking officer told me that they no longer have quotas by denomination, as a result of litigation; that was either held unconstitutional or they agreed in a settlement to abandon it. The special problems of the military and its chaplains authorizes the government to do many things it could not otherwise do, but I'm not sure that appointing officers on the basis of religion is still one of them. On Mon, 3 Jan 2011 16:09:29 -0800 Steve Sanders steve...@umich.edu wrote: To say that military and prison chaplains get special treatment under First Amendment law isn't to explain why that should be so or why it should be restricted to that context. With chaplains, the govt appoints people based on specific religious qualifications to attend to the specific needs of an identifiable group. Under the hypo we're dealing with here it seems to me that's all the court is being asked to do. If it isn't objectionable in one context, why is it in another? On Jan 3, 2011, at 1:31 PM, Volokh, Eugene vol...@law.ucla.edu wrote: One difficulty is that we don't have much law on what constitutes a BFOQ where religion is concerned. But I think military (and prison) chaplaincy cases are generally treated very differently under the First Amendment than other kinds of cases, as to a wide range of First Amendment doctrines -- the ban on religious discrimination, the ban on religious decisions by the government, the ban on government funding of religious practice, and more. So I'm not sure the BFOQ analysis would be that helpful here, or that those cases are generalizable outside the military/prison context. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Steve Sanders Sent: Monday, January 03, 2011 3:28 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? Is someone applying for a military chaplaincy required or expected to have some religious qualification or membership in a religious order? Could a nonbeliever who nonetheless has an extensive academic knowledge of religion sue for discrimination if she's denied such employment? On Jan 3, 2011, at 1:11 PM, Volokh, Eugene vol...@law.ucla.edu wrote: I'm not sure whether BFOQ doctrine as to religion helps us much as to the First Amendment analysis. That private entities aren't barred from discriminating based on religion in some contexts doesn't necessarily tell us, I think, that the government has an equally free hand. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Steve Sanders Sent: Monday, January 03, 2011 12:53 PM To: religionlaw@lists.ucla.edu Subject: RE: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? I recognize this isn't an employment discrimination case, but is the constitutional problem eased if the religion of the arbitrators could be considered a bona fide occupational qualification? We recognize constitutional exceptions for those, right? Per Marc's question, presuming the contract was otherwise valid under state law, it's not clear to me that merely appointing arbitrators who are qualified according to the terms of a contract amounts to a court applying sharia law. Evidently it's the arbitration panel, not the court, that is called on to apply sharia law in the course of interpreting the contract. Generally, the whole point of arbitration is to avoid the courts as much as possible through a private, extrajudicial mechanism for settling disputes. Parties typically agree on arbitrators without the involvement of a court. Thus, it seems to me that if an arbitration agreement is properly drafted, the constitutional issue of a court's discriminatory appointment process shouldn't arise as a matter of design. Steve Sanders Quoting Marc Stern ste...@ajc.org: But would this agreement be enforceable in Oklahoma ,with its ban on courts applying sharia law? Marc D. Stern Associate General Counsel 165 East 56th Street NY NY 10022 ste...@ajc.org 212.891.1480 646.287.2606 (cell) -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Monday, January 03, 2011 02:33 To: Law Religion issues for Law Academics; Eric Rassbach Subject: Re: May American court appoint only Muslim arbitrators,pursuant to an arbitration agreement? The court could apparently comply with the contract, and avoid all entanglement iwth religion, by appointing three Saudis. Does anybody see a problem with that? I
RE: Military chaplains
I don't know about military chaplains (and I know this is a bit of a digression), but there is an interesting case before the 9th Circuit involving prison chaplains, McCollum v. CA Dept. of Corrections. Plaintiff, a Wiccan who applied to be a prison chaplain and was rejected, alleges that California prisons will only hire individuals of five faiths as chaplains: Catholic, Protestant, Jewish, Moslem, and Native American. He also argues that there are more Wiccans in California prisons than adherents of some of the other faiths for whom chaplains have been appointed. Alan Brownstein -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Monday, January 03, 2011 5:22 PM To: Law Religion issues for Law Academics Subject: Military chaplains Does anyone actually know the current appointment system for military chaplains? A fairly high ranking officer told me that they no longer have quotas by denomination, as a result of litigation; that was either held unconstitutional or they agreed in a settlement to abandon it. The special problems of the military and its chaplains authorizes the government to do many things it could not otherwise do, but I'm not sure that appointing officers on the basis of religion is still one of them. On Mon, 3 Jan 2011 16:09:29 -0800 Steve Sanders steve...@umich.edu wrote: To say that military and prison chaplains get special treatment under First Amendment law isn't to explain why that should be so or why it should be restricted to that context. With chaplains, the govt appoints people based on specific religious qualifications to attend to the specific needs of an identifiable group. Under the hypo we're dealing with here it seems to me that's all the court is being asked to do. If it isn't objectionable in one context, why is it in another? On Jan 3, 2011, at 1:31 PM, Volokh, Eugene vol...@law.ucla.edu wrote: One difficulty is that we don't have much law on what constitutes a BFOQ where religion is concerned. But I think military (and prison) chaplaincy cases are generally treated very differently under the First Amendment than other kinds of cases, as to a wide range of First Amendment doctrines -- the ban on religious discrimination, the ban on religious decisions by the government, the ban on government funding of religious practice, and more. So I'm not sure the BFOQ analysis would be that helpful here, or that those cases are generalizable outside the military/prison context. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Steve Sanders Sent: Monday, January 03, 2011 3:28 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? Is someone applying for a military chaplaincy required or expected to have some religious qualification or membership in a religious order? Could a nonbeliever who nonetheless has an extensive academic knowledge of religion sue for discrimination if she's denied such employment? On Jan 3, 2011, at 1:11 PM, Volokh, Eugene vol...@law.ucla.edu wrote: I'm not sure whether BFOQ doctrine as to religion helps us much as to the First Amendment analysis. That private entities aren't barred from discriminating based on religion in some contexts doesn't necessarily tell us, I think, that the government has an equally free hand. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Steve Sanders Sent: Monday, January 03, 2011 12:53 PM To: religionlaw@lists.ucla.edu Subject: RE: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? I recognize this isn't an employment discrimination case, but is the constitutional problem eased if the religion of the arbitrators could be considered a bona fide occupational qualification? We recognize constitutional exceptions for those, right? Per Marc's question, presuming the contract was otherwise valid under state law, it's not clear to me that merely appointing arbitrators who are qualified according to the terms of a contract amounts to a court applying sharia law. Evidently it's the arbitration panel, not the court, that is called on to apply sharia law in the course of interpreting the contract. Generally, the whole point of arbitration is to avoid the courts as much as possible through a private, extrajudicial mechanism for settling disputes. Parties typically agree on arbitrators without the involvement of a court. Thus, it seems to me that if an arbitration agreement is properly drafted, the constitutional issue of a court's discriminatory appointment process shouldn't arise as a
Re: May American court appoint only Muslim arbitrators, pursuant to an arb...
On Mon, Jan 3, 2011 at 7:39 PM, hamilto...@aol.com wrote: Isn't the answer to this question, Eric, that there is no single Sharia law? Interpretation of Sharia law requires a court to pick and choose between Sharia doctrines. It is not terribly different from the wide variety of Christian interpretations of the Bible. Yes and no. There is actually a distinction that is made in Islamic law between sharia and fiqh. Sharia refers to god's commands as they actually are. Fiqh refers to particular interpretations of those laws. The fiqh of a particular school of Islamic law may actually be quite fixed and ascertainable. Hence, if someone says something like this contract should be governed by sharia law as applied in Saudi Arabia or sharia law according to the Habali school the content of the rules may be pretty determinate. Furthermore, if one reads the term sharia law within the entire context of the writing and the contract -- which is how one is supposed to do contractual interpretation after all -- one may be able to impute a particular school's fiqh to the term. (Different schools of fiqh dominate in different countries and often countries that include sharia law by reference in legislation refer to particular schools of fiqh.) Indeed, Arabic makes a distinction between engaging in original interpretation of the Quran and other sources of Islamic law -- ijtihad -- and simply mechanically applying known rules without any interpretation -- taqlid. Hence, the analogy to varying Christian interpretations of the Bible is just that, an analogy. Depending on the the context, however, determining the content of sharia law may actually be about as mechanical as determining the content of UK law. Marci In a message dated 1/3/2011 7:37:08 P.M. Eastern Standard Time, erassb...@becketfund.org writes: e Eugene's other (and I take it primary -- the original post mentioned only the Muslim identity of the arbitrators -- ) concern about entanglement, I don't see how being knowledgeable about Sharia necessarily implicates belief in a religion. I've learned a lot about particular aspects of Sharia representing Muslim clients but that is not affected by whether I am a Muslim or not. ___ 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: May American court appoint only Muslim arbitrators, pursuant toan arb...
Your response requires the agreement to specify which school of Sharia law is to be employed. So my point that Sharia law is not self-defining still stands. No? Marci Sent from my Verizon Wireless BlackBerry -Original Message- From: Nathan Oman nate.o...@gmail.com Sender: religionlaw-boun...@lists.ucla.edu Date: Mon, 3 Jan 2011 20:46:47 To: Law Religion issues for Law Academicsreligionlaw@lists.ucla.edu Reply-To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Subject: Re: May American court appoint only Muslim arbitrators, pursuant to an arb... ___ 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.
From Bob Tuttle, re military chaplains
Douglas Laycock Armistead M. Dobie Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 --- the forwarded message follows --- ---BeginMessage--- Doug, for some reason my message to the list was just bounced back, so here's what I meant to say -- the Department of Defense (through the Armed Forces Chaplaincy Board), using religion-neutral and fairly modest criteria, approves endorsing organizations which, in turn, certify that particular candidate for chaplaincy are authorized to perform religious services within their faith tradition. Not too long ago, the DC Circuit resolved the last of the lawsuits over the Navy's policies on promotion or retention of chaplains (Chaplaincy of the Full Gospel Churches), and the Navy disavowed reliance on faith tradition as basis for chaplains personnel decisions. Bob -- Robert Tuttle Professor of Law Berz Research Professor of Law Religion GWU Law School ---End Message--- ___ 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: May American court appoint only Muslim arbitrators, pursuant toan arbitration agreement?
First, I assume as a matter of contract law that any obligations arising out of such agreements that involve otherwise illegal conduct are void. So genital mutilation, trading of girls as wives (or simply for procreation), aiding polygamy, covering up child abuse when it is required to be reported, and the settling of debts through indentured servitude are out of the picture. This is true regardless of the religious content of the contract, and would be true regardless of the content of constitutional law. (Also, it is worth pointing out that female genital mutilation is not condoned by Islamic law and is condemned by ulama of the classical fiqh.) Second, does commercial arbitration ever involve real property? If so, we are right back in Shelley v Kraemer territory, no? One of the reasons in my view justifying the Shelley result is that such contracts shut out minorities for generations to come. The time lag of the deal is troubling Two points. First, in most of the commercial arbitrations involving Islamic law any real estate is located in a foreign country. Furthermore, the main point at which these arbitrations are likely to diverge significantly from western law is in the application of the prohibition on riba, which is basically usury. The reality is that this is not going to be a dramatic show down over FMG or the stoning of adulterers. It is going to be a dispute about whether a sale and lease back transaction contains an implied usurious interest rate or the like. Second, while I think that there is some truth to concerns about the long lasting effects of real estate, I don't think that is ultimately what makes the outcome in Shelly v. Kramer justifiable is that it involved real rather than personal property. Rather, I think that it had everything to do with the history of racial subordination in this country and the way in which real estate covenants perpetuated that system of racial subordination. It makes not sense to me to try to understand the outcomes in cases like Shelly v. Kramer as applying some universal principle rather than as a reaction to the particular history of slavery and its aftermath in the United States. The normative question, it seems to me, is whether, in light of American history and our present circumstances, Islamic arbitration of commercial disputes between two large corporations that have agreed to the application of Islamic law to their dispute arising out of a transaction occurring in Saudi Arabia raises some similar systemic threat to liberal democracy in the United States. Frankly, I just don't see it as being remotely analogous to the way in which Jim Crow undermined the liberal order in the United States. Indeed, attempts to equate the two strike me as bizarrely implausible. Finally, why isn't a liberal society better served by enforcement of such agreements within their own universes, which would leave the civil courts out? Religious cultures have plenty of ways to penalize their members including excommunication or shunning. Why are civil courts needed exceopt to shore up the power of the religion? I actually think that this makes a great deal of sense, and as I read the contract at issue in the Texas case it is not at all clear to me that it actually did contemplate an American court -- as opposed to a Saudi court -- appointing the arbiter. Hence, as a prudential matter, I think that religious communities would be best served not trying to heavily enlist the state in their dispute resolution processes. That said, it seems to me that one can involve the state in such contracts on exactly the same basis that the state is involved in all contracts, namely respecting the independent choices of its citizens to order their legal affairs as they see fit. Such an autonomy justification for contract is essentially agnostic as to the substantive content of contracts, so long as they do not stray into illegality or unconscionability. What matter is not what the parties choose but that they chose it. Nate Oman ___ 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: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement?
To be appointed a chaplain, a person needs an ecclesiastical endorsement from a recognized endorsing agency connected with the person's faith group. See http://www.goarmy.com/chaplain/about/requirements.html Howard Friedman -Original Message- From: religionlaw-boun...@lists.ucla.edu on behalf of Steve Sanders Sent: Mon 1/3/2011 6:27 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: May American court appoint only Muslim arbitrators,pursuant to an arbitration agreement? Is someone applying for a military chaplaincy required or expected to have some religious qualification or membership in a religious order? Could a nonbeliever who nonetheless has an extensive academic knowledge of religion sue for discrimination if she's denied such employment? On Jan 3, 2011, at 1:11 PM, Volokh, Eugene vol...@law.ucla.edu wrote: I'm not sure whether BFOQ doctrine as to religion helps us much as to the First Amendment analysis. That private entities aren't barred from discriminating based on religion in some contexts doesn't necessarily tell us, I think, that the government has an equally free hand. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Steve Sanders Sent: Monday, January 03, 2011 12:53 PM To: religionlaw@lists.ucla.edu Subject: RE: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? I recognize this isn't an employment discrimination case, but is the constitutional problem eased if the religion of the arbitrators could be considered a bona fide occupational qualification? We recognize constitutional exceptions for those, right? Per Marc's question, presuming the contract was otherwise valid under state law, it's not clear to me that merely appointing arbitrators who are qualified according to the terms of a contract amounts to a court applying sharia law. Evidently it's the arbitration panel, not the court, that is called on to apply sharia law in the course of interpreting the contract. Generally, the whole point of arbitration is to avoid the courts as much as possible through a private, extrajudicial mechanism for settling disputes. Parties typically agree on arbitrators without the involvement of a court. Thus, it seems to me that if an arbitration agreement is properly drafted, the constitutional issue of a court's discriminatory appointment process shouldn't arise as a matter of design. Steve Sanders Quoting Marc Stern ste...@ajc.org: But would this agreement be enforceable in Oklahoma ,with its ban on courts applying sharia law? Marc D. Stern Associate General Counsel 165 East 56th Street NY NY 10022 ste...@ajc.org 212.891.1480 646.287.2606 (cell) -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Monday, January 03, 2011 02:33 To: Law Religion issues for Law Academics; Eric Rassbach Subject: Re: May American court appoint only Muslim arbitrators,pursuant to an arbitration agreement? The court could apparently comply with the contract, and avoid all entanglement iwth religion, by appointing three Saudis. Does anybody see a problem with that? I assume that all Saudis are Muslim, or at least that the percentage is so high that the odds of appointing a non-Muslim Saudi are negligible. On Mon, 3 Jan 2011 12:34:05 -0500 Eric Rassbach erassb...@becketfund.org wrote: Here is the relevant provision (in translation) from the case-link Eugene sent around: The Arbitrator must be a Saudi national or a Moslem foreigner chosen amongst the members of the liberal professions or other persons. He may also be chosen amongst state officials after agreement of the authority on which he depends. Should there be several arbitrators, the Chairman must know the Shari'a, commercial laws and the customs in force in the Kingdom. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Monday, January 03, 2011 11:46 AM To: Law Religion issues for Law Academics Subject: RE: May American court appoint only Muslim arbitrators, pursuant toan arbitration agreement? I agree with Nate's neutral principles / entanglement argument. But I wonder whether one can so easily dismiss the equal protection argument from the enforcement of the contract. The court, after all, would have to decide who gets to perform an important and lucrative task based on that person's religion, whether or not it's merely enforcing a private contract. Of course the judge won't be acting based on religious animus, but he will be deliberately treating people differently based on religion.
RE: May American court appoint only Muslim arbitrators, pursuant toan arbitration agreement?
I think the 1983 New York Court of Appeals decision in Avitzur v. Avitzur, 446 NE2d 136 is relevant to this discussion. There a court enforced the so-called Lieberman clause in a Jewish marriage contract (Ketubah) which bound the parties to appear before a Jewish religious court so the wife could obtain a religious divorce once the parties were divorced civilly. The New York court enforced the agreement over Establishment Clause objections, saying: In short, the relief sought by plaintiff in this action is simply to compel defendant to perform a secular obligation to which he contractually bound himself. In this regard, no doctrinal issue need be passed upon, no implementation of a religious duty is contemplated, and no interference with religious authority will result. Certainly nothing the Beth Din can do would in any way affect the civil divorce. To the extent that an enforceable promise can be found by the application of neutral principles of contract law, plaintiff will have demonstrated entitlement to the relief sought. Howard Friedman -Original Message- From: religionlaw-boun...@lists.ucla.edu on behalf of Brownstein, Alan Sent: Mon 1/3/2011 6:29 PM To: Law Religion issues for Law Academics Subject: RE: May American court appoint only Muslim arbitrators, pursuant toan arbitration agreement? Eugene writes, By the way, what do you think about a state university administering a privately funded scholarship for Christian students? Just to clarify your point, Eugene - Is the distinction you are drawing one that distinguishes between government resources being allocated by private decision makers on the basis of religion and a government actor allocating private resources on the basis of religion. So for example - if to avoid overcrowding in the courts, the government financed arbitration panels to resolve contract disputes and the parties agreed to select arbitrators of a particular faith to hear their dispute, that would not be a problem. But if a judge chooses arbitrators based on religious belief who will be paid by the parties (according to the terms of the arbitration clause in their contract), that would create a constitutional problem. Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Monday, January 03, 2011 2:29 PM To: Law Religion issues for Law Academics Subject: RE: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? I wrote: I'm no great fan of the more expansive readings of Shelly. But when a government actor is deciding who gets a particular (lucrative) position based on that person's religion, it seems to me that state action is eminently present, or more specifically that the government actor is discriminating based on religion in presumptive violation of the Free Exercise Clause and the First Amendment. To be sure, the government actor isn't motivated by religious animus; it's just trying to enforce a contract. But it is still deliberately treating people different from other people based on whether they are Muslims or not. (When the court just enforces an arbitration conducted by a private party, there is not such discrimination by a government entity, even if the private party discriminates based on religion or sex in selecting the arbitrators.) Nathan Oman writes: Why say that the government is discriminating on the basis of religion if it is simply apply neutral principles of contract law. I understand that there is a question as to whether the contract can be enforced using merely neutral principles, but that isn't your argument here. Rather, I take it that your objection rests on a non-discrimination principle. Where is the discriminatory legal principle at issue? I don't see a discriminatory legal principle at issue here. But I see a discriminatory decision by a judge: I will not appoint Joe Schmoe as an arbitrator, because he is not Muslim. To be sure, the judge is just enforcing a contract. But he is still a government actor, allocating a particular post based on religion. That he is just doing that in enforcing a contract does not, I think, prevent his discriminatory conduct from being state action. By the way, what do you think about a state university administering a privately funded scholarship for Christian students? Eugene ___ 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: May American court appoint only Muslim arbitrators, pursuant toan arb...
On Mon, Jan 3, 2011 at 8:52 PM, hamilto...@aol.com wrote: Your response requires the agreement to specify which school of Sharia law is to be employed. So my point that Sharia law is not self-defining still stands. No? Yes and no. In the abstract, I think that your point is entirely correct. In principle the meaning of the term sharia law necessarily requires a deeply religious act of interpretation. That said, however, words generally are not used in the abstract. They certainly are not used in the abstract within contracts. (Or at least this is the premise of the century-long attack on the plain meaning rule by realist and neoclassical contract law in the 20th century.) Rather, words are always used within the context of a particular transaction and a particular contract. As a matter of ordinary contract interpretation, the term sharia law must be construed in light of the context in which it is used. Frankly, in almost any contract involving commercial arbitration it will probably be possible from the context to determine the body of fiqh that the parties expect to apply. The content of that fiqh may then be determined using expert witnesses, just as one would determine the content of UK law. Furthermore, it is extremely unlikely that the parties to such a contract intend for the arbiter to engage in ijtihad rather than taqlid. Ijtihad is the kind of thing that really elite jurists, religious radicals, or semi-mythical geniuses of the past did. It is not the sort of thing that one expects from your run of the mill Islamic arbiter. It would be really weird to suppose that the drafters of the contract understood the terms are requiring a deeply religious act of interpretation. Let me give an example: Suppose that a man enters into a contract with another man in which he promises to pay $10,000 in return for which the other man promises to convey a parcel of land to the church. Now in the abstract the term church is fraught with theological complexities and difficulties. Ecclesialogy varies greatly from Christian sect to Christian sect. On the other hand, if both men have spent their lives attending the 1st Baptist Church of Hendersonville, Kentucky and they engaged in negotiations in which the first man said he wanted to purchase the land from the second man to build an extension to the sanctuary, a court is going to be able to construe the term church without theological pyrotechnics and without shaking liberal democracy to its foundations. This is true even though the term church standing alone in the contract doesn't contain any kind of explicit gloss. My only point is that rather than exocticizing Islamic law with a few well chosen examples from the popular press, courts ought to understand how it gets used in the context of the contract and transactions they are called on to adjudicate. Marci Sent from my Verizon Wireless BlackBerry -Original Message- From: Nathan Oman nate.o...@gmail.com Sender: religionlaw-boun...@lists.ucla.edu Date: Mon, 3 Jan 2011 20:46:47 To: Law Religion issues for Law Academicsreligionlaw@lists.ucla.edu Reply-To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Subject: Re: May American court appoint only Muslim arbitrators, pursuant to an arb... ___ 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: May American court appoint only Muslim arbitrators, pursuant toanarbitration agreement?
FGM is not Islamic at all. It is a cultural phenomenon. It, like the chador and other cultural things, got linked to Islam over centuries of relative isolation. Steve On Jan 3, 2011, at 9:35 PM, hamilto...@aol.com wrote: Point of clarification--So genital mutilation is culturally Islamic as opposed to theologically Islamic? -- Prof. Steven D. Jamar vox: 202-806-8017 Associate Director, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ When I grow up, I too will go to faraway places, and when I grow old, I too will live beside the sea. That is all very well, little Alice, said her grandfather, but there is a third thing you must do. What is that? asked Alice. You must do something to make the world more beautiful, said her grandfather. All right, said Alice. from Miss Rumphius by Barbara Cooney (© 1982) ___ 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: May American court appoint only Muslim arbitrators, pursuant toanarbitration agreement?
If you don't separate religious from civil, the question becomes nonsensical. Contracts are to enforced under the sharia -- as a matter of religious obligation. Separation of religion and state systems is not the only viable system. But it may well be the best. If a contract in Saudi Arabia is to be enforced in the U.S. it must be enforced in civil courts -- no religious ones around to do the work. This is a commercial contract -- not a religious one -- it is just a question of what law to apply to it. Steve On Jan 3, 2011, at 9:35 PM, hamilto...@aol.com wrote: The more important question is whether the might of the state should shore up a religious contract. Don't religious organizations have sufficient methods to enforce religious law without having to ask civil institutions to intervene? Moreover, where is the state interest in seeing disputes resolved through theological beliefs? Let us take the perspective of the society for a moment and not just the subjective desires of the contracting religious parties. The core issue here is twofold: why is the religious dispute in a civil court and what benefit is the religion seeking by resorting to civil enforcement? Those questions need to be frankly addressed. -- Prof. Steven D. Jamar vox: 202-806-8017 Associate Director, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ For all men of good will May 17, 1954, came as a joyous daybreak to end the long night of enforced segregation. . . . It served to transform the fatigue of despair into the buoyancy of hope. Martin Luther King, Jr., in 1960 on Brown v. Board of Education ___ 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.
Avitzur
I am in California for AALS and can't dig out Avitzur; but if I recall correctly (and please, someone correct me if i am wrong); but I thought that the case involved in the enforcement of the N Y Get law (which is of dubious constitutionality) which requires a man who is the moving party in a Orthodox of Conservative Jewish divorce to give the wife a get (a Jewish divorce document) and that it is not based on anything in the Ketubah (the Jewish marriage Contract). Please clarify, if you can, or correct me if I am wrong. There is no such thing as Lieberman clause in a traditional Ketubah (after all, there were no Liebermans around at the time). So again, perhaps I am misremembering and this was not a traditional Ketubah but some modernized contract -- Paul Finkelman President William McKinley Distinguished Professor of Law and Public Policy Albany Law School 80 New Scotland Avenue Albany, NY 12208-3494 518-445-3386 (o) 518-445-3363 (f) www.paulfinkelman.com From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Friedman, Howard M. Sent: Monday, January 03, 2011 9:23 PM To: Law Religion issues for Law Academics Subject: RE: May American court appoint only Muslim arbitrators, pursuant toan arbitration agreement? I think the 1983 New York Court of Appeals decision in Avitzur v. Avitzur, 446 NE2d 136 is relevant to this discussion. There a court enforced the so-called Lieberman clause in a Jewish marriage contract (Ketubah) which bound the parties to appear before a Jewish religious court so the wife could obtain a religious divorce once the parties were divorced civilly. The New York court enforced the agreement over Establishment Clause objections, saying: In short, the relief sought by plaintiff in this action is simply to compel defendant to perform a secular obligation to which he contractually bound himself. In this regard, no doctrinal issue need be passed upon, no implementation of a religious duty is contemplated, and no interference with religious authority will result. Certainly nothing the Beth Din can do would in any way affect the civil divorce. To the extent that an enforceable promise can be found by the application of neutral principles of contract law, plaintiff will have demonstrated entitlement to the relief sought. Howard Friedman -Original Message- From: religionlaw-boun...@lists.ucla.edu on behalf of Brownstein, Alan Sent: Mon 1/3/2011 6:29 PM To: Law Religion issues for Law Academics Subject: RE: May American court appoint only Muslim arbitrators, pursuant toan arbitration agreement? Eugene writes, By the way, what do you think about a state university administering a privately funded scholarship for Christian students? Just to clarify your point, Eugene - Is the distinction you are drawing one that distinguishes between government resources being allocated by private decision makers on the basis of religion and a government actor allocating private resources on the basis of religion. So for example - if to avoid overcrowding in the courts, the government financed arbitration panels to resolve contract disputes and the parties agreed to select arbitrators of a particular faith to hear their dispute, that would not be a problem. But if a judge chooses arbitrators based on religious belief who will be paid by the parties (according to the terms of the arbitration clause in their contract), that would create a constitutional problem. Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Monday, January 03, 2011 2:29 PM To: Law Religion issues for Law Academics Subject: RE: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? I wrote: I'm no great fan of the more expansive readings of Shelly. But when a government actor is deciding who gets a particular (lucrative) position based on that person's religion, it seems to me that state action is eminently present, or more specifically that the government actor is discriminating based on religion in presumptive violation of the Free Exercise Clause and the First Amendment. To be sure, the government actor isn't motivated by religious animus; it's just trying to enforce a contract. But it is still deliberately treating people different from other people based on whether they are Muslims or not. (When the court just enforces an arbitration conducted by a private party, there is not such discrimination by a government entity, even if the private party discriminates based on religion or sex in selecting the arbitrators.) Nathan Oman writes: Why say that the government is discriminating on the basis of religion if it is simply apply neutral principles of contract law. I understand that there is a question as to whether the contract can be enforced using merely
Re: Avitzur
The Ketubah at issue in Aviztur provided (in the English version): “[W]e, the bride and bridegroom * * * hereby agree to recognize the Beth Din of the Rabbinical Assembly and the Jewish Theological Seminary of America or its duly appointed representatives, as having authority to counsel us in the light of Jewish tradition which requires husband and wife to give each other complete love and devotion, and to summon either party at the request of the other, in order to enable the party so requesting to live in accordance with the standards of the Jewish law of marriage throughout his or her lifetime. We authorize the Beth Din to impose such terms of compensation as it may see fit for failure to respond to its summons or to carry out its decision.” David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A. From: Finkelman, Paul paul.finkel...@albanylaw.edumailto:paul.finkel...@albanylaw.edu paul.finkel...@albanylaw.edumailto:paul.finkel...@albanylaw.edu Reply-To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Date: Mon, 3 Jan 2011 19:36:35 -0800 To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: Avitzur I am in California for AALS and can't dig out Avitzur; but if I recall correctly (and please, someone correct me if i am wrong); but Ithought that the case involved in the enforcement of the N Y Get law (which is of dubious constitutionality) which requires a man who is the moving party in a Orthodox of Conservative Jewish divorce to give the wife a get (a Jewish divorce document) and that it is not based on anything in the Ketubah (the Jewish marriage Contract). Please clarify, if you can, or correct me if I am wrong. There is no such thing as “Lieberman” clause in a traditional Ketubah (after all, there were no Liebermans around at the time). So again, perhaps I am misremembering and this was not a traditional Ketubah but some modernized contract -- Paul Finkelman President William McKinley Distinguished Professor of Law and Public Policy Albany Law School 80 New Scotland Avenue Albany, NY 12208-3494 518-445-3386 (o) 518-445-3363 (f) www.paulfinkelman.com ___ 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: Avitzur
Some Conservative rabbis use (or at least in the past used) ketubot that added the Lieberman clause to the traditional language. See http://www.ritualwell.org/lifecycles/intimacypartnering/Jewishweddingscommitmentceremonies/sitefolder.2005-06-07.5921979856/LiebermanClause.xml Avitzur enforced such a provision. -Original Message- From: religionlaw-boun...@lists.ucla.edu on behalf of Finkelman, Paul paul.finkel...@albanylaw.edu Sent: Mon 1/3/2011 10:36 PM To: Law Religion issues for Law Academics Subject: Avitzur I am in California for AALS and can't dig out Avitzur; but if I recall correctly (and please, someone correct me if i am wrong); but I thought that the case involved in the enforcement of the N Y Get law (which is of dubious constitutionality) which requires a man who is the moving party in a Orthodox of Conservative Jewish divorce to give the wife a get (a Jewish divorce document) and that it is not based on anything in the Ketubah (the Jewish marriage Contract). Please clarify, if you can, or correct me if I am wrong. There is no such thing as Lieberman clause in a traditional Ketubah (after all, there were no Liebermans around at the time). So again, perhaps I am misremembering and this was not a traditional Ketubah but some modernized contract -- Paul Finkelman President William McKinley Distinguished Professor of Law and Public Policy Albany Law School 80 New Scotland Avenue Albany, NY 12208-3494 518-445-3386 (o) 518-445-3363 (f) www.paulfinkelman.com From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Friedman, Howard M. Sent: Monday, January 03, 2011 9:23 PM To: Law Religion issues for Law Academics Subject: RE: May American court appoint only Muslim arbitrators, pursuant toan arbitration agreement? I think the 1983 New York Court of Appeals decision in Avitzur v. Avitzur, 446 NE2d 136 is relevant to this discussion. There a court enforced the so-called Lieberman clause in a Jewish marriage contract (Ketubah) which bound the parties to appear before a Jewish religious court so the wife could obtain a religious divorce once the parties were divorced civilly. The New York court enforced the agreement over Establishment Clause objections, saying: In short, the relief sought by plaintiff in this action is simply to compel defendant to perform a secular obligation to which he contractually bound himself. In this regard, no doctrinal issue need be passed upon, no implementation of a religious duty is contemplated, and no interference with religious authority will result. Certainly nothing the Beth Din can do would in any way affect the civil divorce. To the extent that an enforceable promise can be found by the application of neutral principles of contract law, plaintiff will have demonstrated entitlement to the relief sought. Howard Friedman -Original Message- From: religionlaw-boun...@lists.ucla.edu on behalf of Brownstein, Alan Sent: Mon 1/3/2011 6:29 PM To: Law Religion issues for Law Academics Subject: RE: May American court appoint only Muslim arbitrators, pursuant toan arbitration agreement? Eugene writes, By the way, what do you think about a state university administering a privately funded scholarship for Christian students? Just to clarify your point, Eugene - Is the distinction you are drawing one that distinguishes between government resources being allocated by private decision makers on the basis of religion and a government actor allocating private resources on the basis of religion. So for example - if to avoid overcrowding in the courts, the government financed arbitration panels to resolve contract disputes and the parties agreed to select arbitrators of a particular faith to hear their dispute, that would not be a problem. But if a judge chooses arbitrators based on religious belief who will be paid by the parties (according to the terms of the arbitration clause in their contract), that would create a constitutional problem. Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Monday, January 03, 2011 2:29 PM To: Law Religion issues for Law Academics Subject: RE: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? I wrote: I'm no great fan of the more expansive readings of Shelly. But when a government actor is deciding who gets a particular (lucrative) position based on that person's religion, it seems to me that state action is eminently present, or more specifically that the government actor is discriminating based on religion in presumptive violation of the Free Exercise Clause and the First Amendment. To be sure, the government actor isn't motivated by religious animus; it's just trying to enforce a contract. But it is still deliberately treating people different from other
RE: Avitzur
thanks -- Paul Finkelman President William McKinley Distinguished Professor of Law and Public Policy Albany Law School 80 New Scotland Avenue Albany, NY 12208-3494 518-445-3386 (o) 518-445-3363 (f) www.paulfinkelman.com From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of David Cruz Sent: Monday, January 03, 2011 11:14 PM To: Law Religion issues for Law Academics Subject: Re: Avitzur Importance: Low The Ketubah at issue in Aviztur provided (in the English version): [W]e, the bride and bridegroom * * * hereby agree to recognize the Beth Din of the Rabbinical Assembly and the Jewish Theological Seminary of America or its duly appointed representatives, as having authority to counsel us in the light of Jewish tradition which requires husband and wife to give each other complete love and devotion, and to summon either party at the request of the other, in order to enable the party so requesting to live in accordance with the standards of the Jewish law of marriage throughout his or her lifetime. We authorize the Beth Din to impose such terms of compensation as it may see fit for failure to respond to its summons or to carry out its decision. David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A. From: Finkelman, Paul paul.finkel...@albanylaw.edumailto:paul.finkel...@albanylaw.edu paul.finkel...@albanylaw.edumailto:paul.finkel...@albanylaw.edu Reply-To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Date: Mon, 3 Jan 2011 19:36:35 -0800 To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: Avitzur I am in California for AALS and can't dig out Avitzur; but if I recall correctly (and please, someone correct me if i am wrong); but Ithought that the case involved in the enforcement of the N Y Get law (which is of dubious constitutionality) which requires a man who is the moving party in a Orthodox of Conservative Jewish divorce to give the wife a get (a Jewish divorce document) and that it is not based on anything in the Ketubah (the Jewish marriage Contract). Please clarify, if you can, or correct me if I am wrong. There is no such thing as Lieberman clause in a traditional Ketubah (after all, there were no Liebermans around at the time). So again, perhaps I am misremembering and this was not a traditional Ketubah but some modernized contract -- Paul Finkelman President William McKinley Distinguished Professor of Law and Public Policy Albany Law School 80 New Scotland Avenue Albany, NY 12208-3494 518-445-3386 (o) 518-445-3363 (f) www.paulfinkelman.com ___ 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: May American court appoint only Muslim arbitrators, pursuant toanarbitration agreement?
A subsidiary of a Saudi government agency (Aramco) entered into a contract with an American company, having to do with conduct in Saudi Arabia. I take it that we'd have no problem with a subsidiary of a French government agency providing that disputes with it would be arbitrated under French law. The same, I think, would be true with regard to Saudi law, and I don't see how the fact that Saudi law is based on Islamic law should make a difference. It seems to me improper - for reasons being discussed in a different branch of this thread - for American courts to choose arbitrators based on those arbitrators' religion (even if a contract so provides). But if that was absent, I see no reason to bar arbitration under Saudi law when we would allow arbitration under French law. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Monday, January 03, 2011 6:36 PM To: Nathan Oman; Law Religion issues for Law Academics Subject: Re: May American court appoint only Muslim arbitrators, pursuant toanarbitration agreement? Point of clarification--So genital mutilation is culturally Islamic as opposed to theologically Islamic? Shelley was about the composition of a community, which is what land use law is generally about, and not simply a response to the previous embedded practice of slavery. The court was unwilling to permit courts to be the enablers of segregated land ownership. One of the basics of American society is real property ownership and the relationship of generations. So I will stand by my admittedly sociological reading of Shelley. Trying to squeeze Shelley into the slavery category is insufficiently nuanced in my view. The term autonomy really does nothing to further discussions about law and religion. It is a code word with more hidden agendas than meanings The more important question is whether the might of the state should shore up a religious contract. Don't religious organizations have sufficient methods to enforce religious law without having to ask civil institutions to intervene? Moreover, where is the state interest in seeing disputes resolved through theological beliefs? Let us take the perspective of the society for a moment and not just the subjective desires of the contracting religious parties. The core issue here is twofold: why is the religious dispute in a civil court and what benefit is the religion seeking by resorting to civil enforcement? Those questions need to be frankly addressed. Marci Sent from my Verizon Wireless BlackBerry From: Nathan Oman nate.o...@gmail.com Date: Mon, 3 Jan 2011 21:05:24 -0500 To: hamilto...@aol.com; Law Religion issues for Law Academicsreligionlaw@lists.ucla.edu Subject: Re: May American court appoint only Muslim arbitrators, pursuant toan arbitration agreement? First, I assume as a matter of contract law that any obligations arising out of such agreements that involve otherwise illegal conduct are void. So genital mutilation, trading of girls as wives (or simply for procreation), aiding polygamy, covering up child abuse when it is required to be reported, and the settling of debts through indentured servitude are out of the picture. This is true regardless of the religious content of the contract, and would be true regardless of the content of constitutional law. (Also, it is worth pointing out that female genital mutilation is not condoned by Islamic law and is condemned by ulama of the classical fiqh.) Second, does commercial arbitration ever involve real property? If so, we are right back in Shelley v Kraemer territory, no? One of the reasons in my view justifying the Shelley result is that such contracts shut out minorities for generations to come. The time lag of the deal is troubling Two points. First, in most of the commercial arbitrations involving Islamic law any real estate is located in a foreign country. Furthermore, the main point at which these arbitrations are likely to diverge significantly from western law is in the application of the prohibition on riba, which is basically usury. The reality is that this is not going to be a dramatic show down over FMG or the stoning of adulterers. It is going to be a dispute about whether a sale and lease back transaction contains an implied usurious interest rate or the like. Second, while I think that there is some truth to concerns about the long lasting effects of real estate, I don't think that is ultimately what makes the outcome in Shelly v. Kramer justifiable is that it involved real rather than personal property. Rather, I think that it had everything to do with the history of racial subordination in this country and the way in which real estate covenants perpetuated that system of racial subordination. It makes not sense to me to try to understand the outcomes in
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I'm not sure I quite understand Eric's point. If the contract says that Muslim arbitrators are to be chosen, but there's a dispute about who's a Muslim, and the result is that the court can't act, then that's another way of saying that the contract is not enforceable by the court (since the consequence of the court's not acting is that the contract won't be enforced). Just as with a will that says I leave the property to the X church, so long as it remains true to its founding religious doctrine, a contract that says a Muslim arbitrator must be selected would not be enforceable by a secular court, so long as there's a dispute about who's Muslim. As to the discrimination point, the discrimination rests simply in the court's saying you're not a Muslim, so I will not appoint you to this position. It may not be invidious in the sense of reflecting a judge's hostility to the person; but it is still discrimination. If a police officer is told by a property owner to remove a trespasser, the police officer can do so without discriminating based on religion, even if the property owner's motivation stems from the trespasser's having been ejected from the faith. The police officer doesn't care about the trespasser's religion, and might not even know the trespasser's religion. There is no discrimination on the police officer's part. But if a property owner tells the police, please eject everyone who isn't a Catholic, I don't think the police officers can do that. Likewise with a judge being told to appoint only Muslims. Eugene Eric Rassbach writes: A few thoughts in response to Eugene's email below: Eugene's recounting of what would happen in the Ahmadi hypo leaves out an important step: after one party objects to the Ahmadi as non-Muslim, the Court won't just act immediately. The other party to the arbitration has to take a position. If both (or all) the parties can't agree before the court that the Ahmadi is not Muslim for purposes of the contract, the Court cannot proceed. Thus the Court will always be dealing with a stipulation about the underlying religious question, not simply one party's objection, and won't be deciding a religious question. If the parties can't agree one way or the other, then the Court can't act. I also don't accept Eugene's main point. How is it discrimination (or entanglement) for a court to abstain from deciding an underlying religious question? Was the Supreme Court discriminating against one group of Russian Orthodox by deciding Kedroff the way it did? It is not discrimination in the invidious discrimination sense for one person to say that another person is not really [Religion X] or to exclude them from a particular religious group. That sort of distinction is in the very nature of religious discourse, which *always* includes disputes over things like identity (cf. whether a child born to a Jewish father and a non-Jewish mother is halachically Jewish). It is no more discriminatory or immoral for a court to uphold two parties' agreed understanding of who happens to be Muslim (whether that is set forth in the terms of a contract or by stipulation before the Court), than it is for a court or the police to order someone forcibly removed from a house of worship who has been rejected for leaving the faith. What if the contract said that the arbitrator had to be the sitting Roman Catholic Bishop of Rome? If the parties agree the Pope is Catholic, who is the court to disagree? Should law profs or other potential arbitrators feel discriminated against because they weren't on the list? Re Eugene's other (and I take it primary -- the original post mentioned only the Muslim identity of the arbitrators -- ) concern about entanglement, I don't see how being knowledgeable about Sharia necessarily implicates belief in a religion. I've learned a lot about particular aspects of Sharia representing Muslim clients but that is not affected by whether I am a Muslim or not. Finally, I add a personal note of surprise that I seem to be taking a more classically libertarian position than Eugene is! There's got to be something wrong with that. :) Eric ___ 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.
