Gamaliel: A Historical Question
I have a question for those of you who are familiar with early modern, e.g. 16th and 17th century, debates over religious toleration. Do you know of any writers that used the story of Gamaliel as a justification for toleration. In the NT, Gamaliel is a Pharisee who argues against the persecution of the early Christians on the grounds that if there work is not of God it will perish but if it is of God one would be sinning in acting against it. Either way, the best course of action is toleration. (See Acts 5) I am just wondering if it was every invoked in polemics about religious toleration. 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 ___ 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.
The End of NY's Kosher Inspectors
According to the story below, NY has decided to nix its Kosher inspectors as a way of spending money. Does anyone know the details (and citation) for the 2004 case mentioned in the article? Also, I am wondering what precisely the inspectors after the decision. Finally, does anyone know why the inspectors were set up in the first place? Why wasn't the issue simply solved by having private kosher audits by reputable bodies? The idea of a state Kosher inspector just seems perverse and unnecessary to me. What am I missing? http://online.wsj.com/article/SB10001424052748704735304576058100916662270.html?mod=WSJ_hps_sections_newyork 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 ___ 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?
On Mon, 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? FMG is not practiced by the vast majority of Muslims and there is nothing in traditional Islamic law that supports it. My understanding it is that it is a practice -- like honor killings -- that is confined to a specific ethnic group and is practiced despite its formal condemnation by Islamic scholars. It is basically an East African tradition, although I wouldn't be surprised if the Muslim East Africans who practice it see it as connected to their religion, despite the absence of anything about FMG in the classical fiqh. The term autonomy really does nothing to further discussions about law and religion. It is a code word with more hidden agendas than meanings No hidden agenda in my use of the term autonomy, or at least no more hidden agenda than in the use of any other label to refer to a body of theories and arguments. I was not offering it up as a theory of law and religion but as a theory of contract law. You asked why the state should enforce religious contracts. My answer is that the state should enforce such contracts for the same reason that it enforces any other contract. Why should religious contracts be treated differently? I see no reason that the kinds of arguments deployed by autonomy theorist of contract (or efficiency theorists for that matter) cannot be deployed when the contract has a religious content. Given how deeply embedded the idea of the law's agnosticism toward the substantive content of contracts is, it seems to me that the burden is on those seeking to single some contract out for special disapproval. (This is why public policy and unconscionability are defenses rather than formation requirements.) In the case of Islamic commercial arbitration, two Muslims are likely to invoke Islamic law -- if they are Muslim -- because they believe that western law allows undue exploitation of weak parties and the accumulation of wealth through immoral means -- e.g. the charging of interest. They wish to avoid direct complicity in such practices by having future disputes governed by what they regard as a more just set of rules. The state becomes involved in such arbitration proceedings when one side disputes the scope of the contract, alleging that the other has not complied with his or her obligations under it. The state's involvement at this point is predicated on the ordinary values associated with the enforcement of contracts. The state is not enforcing this contract because it subscribes to the inherent value of Islamic law any more than the state's enforcement of your lease covenants has anything to do with the inherent value of restricting dog ownership in your building. Rather, the contract is being enforced either to respect the autonomous choices of citizens in a liberal polity a la Charles Fried, Randy Barnett, Steven Smith, etc. advance the efficient allocation of resources a la Richard Crasswell, Richard Posner, Bob Scott, Alan Schwartz, etc. protect against ex post opprotunism and reliance a la Grant Gilmore, Patrick Atiyah, etc. And so on. My point is simply that there is nothing special about religious contracts and the fact that the argument obscures the very fact that they are religious is an attack on our current system of contract law rather than a truism of law and religion debates. ___ 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 toanarbitrat...
I think it important to publicly identify criminal and tortious behavior with the religious tradition on which it rests. Otherwise, we are catering to the American societal instinct to whitewash religion to protect it from its darker corners. I agree with you in the abstract. You will notice that I did not deny the FMG is in some sense Islamic, only that it is compelled by Islamic law as that term is generally understood. I have no doubt that Muslim East Africans who practice FMG see it as a way of avoiding zina (sexual immorality) even if classical Muslim ulamas have never made this argument and the claim is denied by many modern Islamic jurists. It seems to me that there are two dangers with your preferred strategy. First, doing it well requires a fairly nuanced understanding of a religious tradition and this is not something that one often sees in public discussions of religion. The widespread belief -- which I take it that you shared -- that FMG is part of Islamic law and is a widespread Muslim practice is a case in point. I agree with you that there is a dangerous intellectual poverty in a discussion of religion that insists that it can never have any darker manifestations. On the other hand, there is a real risk of perpetuating ignorant stereotypes and this risk rises the more foreign the religion seems, where in functional terms in American society foreigness is defined in terms of one's distance from mainstream Protestantism. The second danger is the ease of assuming religious causation. For example, one might argue that Islam causes FMG. Here the issues get even more complicated. Clearly Islam does not cause FMG in any absolute sense. FMG is practiced by only a tiny minority of the world's billion or so Muslims. Also, my understanding is that FMG cuts across religious lines in East Africa, and is practiced by Muslims, Christians, and animists. At the same time, you are likely to see uniquely Islamic manifestations of the practice, manifestations that are going to be embedded in Islamic narratives about zina, etc. etc. A public pose of honestly calling a spade a spade etc. etc., especially when it is based on only a cursory understanding of the religious dynamics is likely to simply wash away such nuances and replace it with a linear story of religion X causes evil Y. This is especially true where religion X seems exotic and where there are groups such as the media and the plaintiffs bar that have powerful financial incentives to propagate simplistic stories. At least under existing Establishment Clause doctrine, contracts that require religious interpretation (all contracts require interpretation) present special problems not present in any other contract. I think Jones v. Wolf is very helpful on these points. In that case, the Court says that neutral principles of law can apply in disputes between believers over property, but the Court warns religious organizations to enter into contracts that reflect their intent using those neutral principles. If the courts must be arbiters of belief, they may not resolve the property dispute. Same principles apply here. By keeping courts out of the business of interpreting (i.e., determining) religious doctrine, the ends you mention are not necessarily disserved. Rather, commercial contractors are required to translate their religious beliefs into neutral rules that are then incorporated into the contract. The interpretation of doctrine is therefore done by the individuals, not the courts, and the courts are enforcing neutral principles. The use of Sharia law is a shorthand, not a necessity. The defense that having to spell out the principles of Sharia law that the parties intend to incorporate requires more words or paper is hardly persuasive. I don't have a quarrel with the basic approach in Jones v. Wolf, but I do think that your approach to contract drafting and interpretation runs counter to more than a century of development in contract theory and contract doctrine. I think that it is fairly widely accepted that in contract interpretation one of the chief functions of the courts is to assist the parties in resolving their dispute by seeking to give effect to their agreed upon terms. We do this all the time in other contexts, even when doing so requires that we make inquiries into the the shared meaning of apparently vague or ambiguous terms. This is the whole point behind the modern relaxation of the parole evidence rule or the mirror image rule under UCC 2-207. This approach in effect amounts to an ex post subsidy of contract drafting via the courts. The alternative is to simply refuse to interpret terms that aren't crystal clear on their face and require the parties to bear the costs of increased contract drafting ex ante. My point is simply that there is no reason to impose on religious contractors a greater burden in ex ante drafting than we impose on any other contracting party. This
Re: May American court appoint only Muslim arbitrators, pursuant toanarbitrat...
I agree with what Steven says here, but with some additions. First, generally foreign law is treated as a question of fact rather than a question of law. This means that the courts don't make their own independent judgment about the content of UK law or the like but are supposed to take evidence from experts etc. This means that the question of religious law must be a question of fact not of religious doctrine. To give a concrete example from Islamic law, it is a question of fact whether the Hanbali school of Islamic jurisprudence allows mut'a marriages (temporary marriages for a fixed term). It is NOT a question of fact (or at least a question of fact that a court can inquire into) whether mut'a marriage is truly Islamic. (Shias generally say yes; Sunnis generally say no). It seems to me that courts should be free to pass judgment on the first question but ought to be constitutionally prohibited from passing judgment on the second question. Whether a contract referencing Islamic law is asking the first sort of question or the second sort of question is a matter of interpretation that depends on the facts of the transaction. There are, however, good reasons for supposing that it is pretty unlikely that a commercial contract involving the application of Saudi law is asking the second sort of question rather than the first sort of question. 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 Tue, Jan 4, 2011 at 9:44 AM, Steven Jamar stevenja...@gmail.com wrote: Is contract law shorthand? Or should we spell out all provisions of the UCC and common law contract of the particular state? Or can we just say law of the state of North Carolina? If we can say law of North Carolina will govern, we can also say law of France or law of Saudi Arabia or law of the Vatican. And if one or more of those happen to be religious law, that is just what is going on and the court must interpret that law, whatever its source or external characterization just as it would any other law. Most legal systems do not require that ridiculous thing called consideration as part of the contract formation process. So what? From within any legal system one can determine the existence of non-existence of a contract (or judicially enforceable agreement if you prefer). It doesn't matter whether that is the sharia or civil law or any other legal system. There remain many points of contention about what the law is in the common law and even more about how to apply it in a given setting -- even in a mature area like contracts. Same is true in other legal systems. No big deal. For the commercial contract, the court can figure out what the law is and apply it --even if it includes principles analogous to unconscionability as part of the understanding of the contract law. It is not establishment. It is not interpreting doctrinal disputes among churches with legal consequences -- it is resolving a contract dispute using the choice of law of the parties. End of line. This is no more establishment than is applying any choice of law provision. Like all choice of law provisions, however, the forum state will always be able to ignore particular bits of the foreign law that are against public policy in the forum state. that is a universal part of choice of law standards, howsoever varied choice of law rules themselves are. Steve On Jan 4, 2011, at 9:04 AM, hamilto...@aol.com wrote: t least under existing Establishment Clause doctrine, contracts that require religious interpretation (all contracts require interpretation) present special problems not present in any other contract. I think Jones v. Wolf is very helpful on these points. In that case, the Court says that neutral principles of law can apply in disputes between believers over property, but the Court warns religious organizations to enter into contracts that reflect their intent using those neutral principles. If the courts must be arbiters of belief, they may not resolve the property dispute. Same principles apply here. By keeping courts out of the business of interpreting (i.e., determining) religious doctrine, the ends you mention are not necessarily disserved. Rather, commercial contractors are required to translate their religious beliefs into neutral rules that are then incorporated into the contract. The interpretation of doctrine is therefore done by the individuals, not the courts, and the courts are enforcing neutral principles. The use of Sharia law is a shorthand, not a necessity. The defense that having to spell out the principles of Sharia law that the parties intend to incorporate requires more words or paper is hardly persuasive. -- Prof. Steven D. Jamar vox: 202-806-8017 Associate
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 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’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 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 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 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: Federal regulators apparently force bank to take down religioussymbols
If you step back from the concrete arguments over accommodation or discrimination claims, I wonder if we have any set of coherent narratives to tell about the relationship between law, religion, and commercial activity. It seems to me that when we talk about the relationship between religion and the state we have a pretty clear set of relatively coherent positions with theocracy on one hand and perhaps strict seperationism on the other hand. In between we have accomodationism or some sort of support for religion as of general civic usefulness (I am thinking here of something like the original establishment in the Massachusetts constitution). Are we simply transferring these narratives to the commercial context. That is do we have some reason for adopting say a strict seperationist stance when it comes to the issue of church and market? Alternatively, are we just engaged in some process by which we decide that a given commercial situation is state-like enough to trigger the church-state concerns that we have in the case of the government? A pithier way of raising the issue might be to ask whether we have any unique theories of church-and-market or whether we are simply extending our theories of church-and-state by analogy into the marketplace. 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 Tue, Dec 21, 2010 at 2:18 PM, Volokh, Eugene vol...@law.ucla.edu wrote: I appreciate Michael's thoughtful and detailed response. But it sounds like his approach, then, is different from Alan's, since Alan apparently would treat some such cases as disparate treatment cases (yes?). If so, Alan, what would you think about the Las Cruces, Mogen David, or There Is No God on uniforms, cars, burger wrappers, and so on? Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Michael Masinter Sent: Tuesday, December 21, 2010 11:12 AM To: religionlaw@lists.ucla.edu Subject: RE: Federal regulators apparently force bank to take down religioussymbols As always, Eugene asks good questions. Religious discrimination claims can take several forms -- disparate treatment, failure to accommodate, and in addition harassment and disparate impact. I am not familiar with any case that treats an employer's mandated expression of religious (dis)belief as disparate treatment since such a rule, uniformly applied to all similarly situated employees, would be disparate treatment only if it were adopted for the purpose of discouraging employees or applicants of a particular faith from applying or continuing to work. So I would expect any claim relating to compelled expression to arise as a reasonable accommodation claim. I suppose compelled expression could be part of a religious harassment claim, but religious harassment claims are rare given the high burden (severe or pervasive) that claimants face. Facing that higher burden, a sensible employee or her lawyer would surely prefer a reasonable accommodation claim. Disparate impact claims raise even more difficult issues respecting classwide impact and preclude recovery of damages, so I wouldn't expect to see one of those either. My sense is that neither the Las Cruces employee nor the Mogen David employee is entitled to an accommodation relating to vehicles or stationery. The city seal and Mogen David emblem identify the employer; since no reasonable observer would see them as the compelled expression of belief, I'd expect a court to hold that requiring the employer to forego their use at the request of a religious believer would impose an undue hardship on the conduct of the employer's business. It's worth noting that section 702(a) of Title VII exempts religious corporations, associations, and societies from the prohibition against religious discrimination, and therefore from any duty of religious accommodation. Although courts have struggled to work out a standard for identifying employers entitled to the religious corporation exemption that is both faithful to the intent of its drafters and consistent with the establishment clause, all of the competing standards impose a de facto requirement that the employer be organized as a not for profit business even while insisting that the form of the organization is only part of the analysis. Townley Engineering lost on its claim to a religious corporation exemption for precisely that reason. Mike Michael R. Masinter 3305 College Avenue Professor of Law Fort Lauderdale, FL 33314 Nova Southeastern University 954.262.6151 (voice) masin...@nova.edu954.262.3835 (fax)
Re: A Constitutional right to make pilgrimage
I tried to find a copy of the complaint online. Has anyone seen it? To second Mr. Stern's suggestion, when I was in practice we successfully sued the Wisconsin prison system for failing to accomodate Halal diets for prisoners. The claim looked dead under Smith, but the prison system was already accommodating Kosher prisoners, so we won... 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, Dec 13, 2010 at 9:32 PM, ste...@ajc.org wrote: First the suit is probably brought under tile vii and not the constitution. The smith standard is inapplicable under that statute.. Second, the department will likely argue that the leave policy was administered unevenly-say Jews are given leave for passover. Sent from my Verizon Wireless BlackBerry -Original Message- From: Brad Pardee bp51...@windstream.net Sender: religionlaw-boun...@lists.ucla.edu Date: Mon, 13 Dec 2010 20:22:50 To: religionlaw@lists.ucla.edu Reply-To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Subject: A Constitutional right to make pilgrimmage ___ 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: Catholic Charities Issue
I am not sure that we have a mirror here. Gay people are trying to get out from under an oppressive regime the likes of which conservative believers have not had to endure - nor are likely to. This just seems to muddy the issue to me. Doug's claim is not that gays and conservative Christians have suffered comperable levels of oppression, but that both should be accord a space in which to work out their visions of the good free of collective coercion. Furthermore, I think that it is a mistake for gays -- or any other oppressed minority -- to use the fact of their oppression to suggest that they get some sort of free pass on the basic commitments of philosophical liberalism, given that they are much more likely to persuade those who disagree with them by appeals to liberalism than by attacks upon it. NBO -- ** Nathan Oman It is a misleading cult that teaches that the remedy of our ills is to have the law give over, once and for all, the strivings of the centuries for a rational coherence, and sink back in utter weariness to a justice that is the flickering reflection of the impulse of the moment. -- Benjamin Cardozo -- ___ 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: Missouri declares Christianity its official religion.
I wonder how many of them would have the courage of their convictions if that were the likely outcome of their little legal-literary exercise. I suspect that large numbers of them -- or of their fellow travelers -- would be willing to suffer legal sanctions for their opinions. I think that they are wrong, but I see no particular reason to suppose that they are insincere. It is always nice to imagine that those we disagree with are also cowards or hypocrits, but reality has a nasty way of refusing to script itself as precisely the sort of morality play that we might prefer. NBO -- ** Nathan Oman It is a misleading cult that teaches that the remedy of our ills is to have the law give over, once and for all, the strivings of the centuries for a rational coherence, and sink back in utter weariness to a justice that is the flickering reflection of the impulse of the moment. -- Benjamin Cardozo -- ___ 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: From the list custodian RE: Pink Triangles and Religious Liberty
messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone. C.S.Lewis, Grand Miracle I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered. --The Prisoner - Do you Yahoo!? With a free 1 GB, there's more in store with Yahoo! Mail. _ Steve Sanders E-mail: [EMAIL PROTECTED] ___ 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. -- Paul Finkelman Chapman Distinguished Professor of Law University of Tulsa College of Law 3120 East 4th Place Tulsa, OK 74104-3189 918-631-3706 (office) 918-631-2194 (fax) [EMAIL PROTECTED] ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- ** Nathan Oman www.concurringopions.com www.timesandseasons.org It is a misleading cult that teaches that the remedy of our ills is to have the law give over, once and for all, the strivings of the centuries for a rational coherence, and sink back in utter weariness to a justice that is the flickering reflection of the impulse of the moment. -- Benjamin Cardozo -- ___ 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: B'nai Brith Canada wins in landmark supreme court case onreligious freedoms
Doug, Was the condiminium corporation at issue here a public housing facility, or does the Charter of Rights apply to private actors as well? Nate Oman -- Original Message -- From: Douglas Laycock [EMAIL PROTECTED] Reply-To: Law Religion issues for Law Academics [EMAIL PROTECTED] Date: Thu, 01 Jul 2004 14:45:26 -0500 This is not my prose, but someone else's press release -- B'nai Brith Canada's I think. I doubt we could get the same result in many U.S. jurisdictions. B'nai Brith Canada wins in landmark supreme court case on religious freedoms FOR IMMEDIATE RELEASE June 30, 2004. MONTREAL - In a landmark ruling, the Supreme Court of Canada has upheld the rights of all Canadians to follow their religious practices without interference by the courts. In what is widely seen as an illustration of this point, the Supreme Court of Canada has ruled that Jewish condominium owners in a Montreal building have the right to set up their own personal Succahs, temporary religious huts that are constructed in celebration of the Jewish holiday of Succot. B'nai Brith Canada's League for Human Rights had intervened in the matter following the initial refusal of the condominium corporation to allow observant Jewish residents to construct individual huts on their own balconies. Allan Adel, National Chair of B'nai Brith's League for Human Rights, reacting to the news, stated: We are satisfied with the decision of the Supreme Court, which has applied a broad interpretation to the Charter guarantee of freedom of religion and believe it to be in the best interests of all Canadians. The Succah ruling is an important, groundbreaking case that champions the cause of religious freedom in Canada and will have important ramifications well beyond the immediate facts of the case. Montreal lawyer Steven Slimovitch along with B'nai Brith's Senior Legal Counsel David Matas, represented the League before the Court. Slimovitch, acknowledging that he was pleased with the verdict stated: This decision sets an important precedent for the exercise of sincerely held religious beliefs. The High Court has upheld B'nai Brith's argument that State should not be the final arbiter of religious dogma. Rather, this must be a private matter set by each individual. Established in 1875, B'nai Brith is the Canadian Jewish community's leading human rights agency. Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 (voice) 512-471-6988 (fax) [EMAIL PROTECTED] ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw -- Nathan Oman http://www.tutissima.com http://www.timesandseasons.org -- ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
RE: Gay Activists Threaten Church Tax-Exempt Status
/listinfo/religionlaw ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw -- Nathan Oman http://www.tutissima.com http://www.timesandseasons.org -- ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: Religion Clauses question
Actually it gets even more fun. Louisiana was a French territory when purchased, but for much of its history it was Spainish, so you would need to be able to look at Spainish law as well. Furthermore, the Treaty of Guadalupe Hidalgo contained a similar provision with regard to the territory ceded from Mexico under the treaty (CA, AZ, NM, NV, CO, UT). So Spainish and Mexican law would become relevent for those states. French law might then also be important as a source of persuasive authority, it being another civil law jurisdiction and all. Hence, it turns out that MOST of the geographical area of the United States has a submerged civil law substratum of one kind or another. Nate Oman -- Original Message -- From: [EMAIL PROTECTED] Reply-To: Law Religion issues for Law Academics [EMAIL PROTECTED] Date: Fri, 4 Jun 2004 12:26:49 EDT In a message dated 6/4/04 7:57:29 AM, [EMAIL PROTECTED] writes: (except, perhaps, in Louisiana) (since the treaty making final the purchase of the territory guarantees to the residents of the territory all the rights they enjoyed prior to the conveyance). Jim- You would have to say except, perhaps, in Louisiana and all or part of Missouri, Iowa, North Dakota, Texas, South Dakota, New Mexico, Nebraska, Kansas, Wyoming, Minnesota, Oklahoma, Colorado and Montana. Art -- Nathan Oman http://www.tutissima.com http://www.timesandseasons.org -- ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: Religion Clauses question
This discussion puts me in mind of Waldron's observation about the difficulty of rights based discourse: Rights purport to be fundamental commitments to which we can appeal to neutrally resolve basic disputes, but what counts as a right is precisely what people disagree about. I suspect that those who oppose same sex marriage do so precisely because they don't regard same sex marriage as a right (in the Dworkin, rights as trumps meaning). It seems to me that the language of equal rights only becomes useful once one has defined what counts as a right and what doesn't count as a right. However, once one has those definitions most of the arguing has been done. Nate Oman -- Original Message -- From: Paul Finkelman [EMAIL PROTECTED] Reply-To: [EMAIL PROTECTED], Date: Thu, 03 Jun 2004 13:17:55 -0500 Richard: It seems to me that if you oppose rights for people you can't say you support equal rights. It is pretty clear to me that this is about fundamental rights. I absolutely agree with Prof. Beckwith that there should be no need to endorse or agree with people being gay (although the science seems pretty clear that many if not all gay people are born the way they are, so it is sort of like endorsing or not endorsing people being male or female). One can believe that being gay is immoral; just as one can dislike being around Jews or Moslems or Blacks, or Asians. But, the issue for those of us interested in law is one of rights and equality. I think if you deny a huge class of people the right to marry, to raise children, to share in the civil benefits of marriage (such as shared health insurance, right to inherit, right to make end of life decisions for your partner, right to even visit your loved one in the hospital) then you are in fact against equal rights for all people. I personally would favor the government not marrying anyone -- that is for the clergy; the government should set up regulations for family units; civil unions, and the like. Then let the clergy marry people. But, as long as the government is the marriage business it should not be allowed to discriminate unless there is a strong compelling interest; no one on this list has ever offered a compelling interest (or even a rational basis) argument for opposing same sex unions. The only arguments offer are that it violated God's law (which of course is disputed and truly irrelevant to our legal sysystem) and that it sets a bad example. Well, we can all think of lots of things that set a bad example. I think having more children than you can raise sets a bad example; The Catholic Church clearly does not think that is true, or at least does not think it is true enough to support birht control. I think sixteen year olds set a bad example when they get married, but a number of states disagree. I think parents who yell at little league umpires set a bad example for their kids; but there are not compelling interests or even a rational basis for banning these sorts of behavior. Paul Finkelman Richard Dougherty wrote: Clearly, however, as you note, you are not advocating disrciminating against gay people, and so I welcome you to to fold of many people of faith who support equal rights for all Americans! Paul Finkelman Respectfully, isn't this the kind of point that Prof. Beckwith is getting at? Opponents of gay marriages or civil unions are not necessarily opponents of equal rights for all Americans. Richard Dougherty ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw -- Paul Finkelman Chapman Distinguished Professor University of Tulsa College of Law 3120 East 4th Place Tulsa, Oklahoma 74104-2499 918-631-3706 (office) 918-631-2194 (fax) [EMAIL PROTECTED] ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw -- Nathan Oman http://www.tutissima.com http://www.timesandseasons.org -- ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: FYI An Interesting Case
Doug, I was hoping that progressive here would be a neutral phrase. Perhaps there is a better label, I am just not sure what it is. I don't want to use the word liberal because I like to reserve that term for philosophical purposes -- e.g. liberal v. communitarian -- rather than succomb to its bastardized use in general political discussions. BTW, it seems to me that having the state require an oath and having ATT require an oath are different sorts of things. The state has more guns than ATT does. NBO -- Original Message -- From: Douglas Laycock [EMAIL PROTECTED] Date: Wed, 07 Apr 2004 14:48:27 -0500 It is progressive to require people not to discriminate or harass. It is not progressive to require people to swear loyalty oaths or swear fealty to other people's values. The Colorado case appears to be about the difference. In the Pledge case, it is progressives who are opposing such coerced oaths of allegiance. But for too many people on both sides, it will always be about whose ox is gored. At 03:34 PM 4/7/2004 -0400, Nathan Oman wrote: This is interesting to me because it is an example of the civil rights laws being used as a weapon against progressive workplace policies. Richard Epstein and more recently David Bernstein have argued that civil rights laws present a threat to free exercise rights when they unduly regulate religious employers. This case seems like the flip side of this argument, in which the civil rights laws get used as a sword by the religious against voluntary, progressive policies. NBO -- Original Message -- From: Rick Duncan [EMAIL PROTECTED] Reply-To: [EMAIL PROTECTED], Date: Wed, 7 Apr 2004 14:51:44 -0400 Rick Duncan has sent you an article from The Washington Times. Rick Duncan's comments: --- WORKER OPPOSED TO GAYS WINS SUIT By Amy Fagan THE WASHINGTON TIMES --- An ATT Broadband employee who was fired after refusing to abide by company rules that he said violated his religious beliefs about homosexuality has won a federal court case. Judge Marcia S. Krieger of the U.S. District Court for the District of Colorado awarded Albert Buonanno of Denver $146,269 for lost salary, loss of 401(k) matching contributions and compensation for emotional distress in a Friday ruling released this week. The judge found that although there was no direct religious discrimination against Mr. Buonanno, ATT Broadband failed to show it could not have accommodated Mr. Buonanno's beliefs without undue hardship to the company he had been with for nearly two years. Mr. Buonanno objected to language in a new employee handbook issued in January 2001 that said each person at ATT Broadband is charged with the responsibility to fully recognize, respect and value the differences among all of us, including sexual orientation. He was fired after refusing to sign a certificate of understanding acknowledging that he agreed to the policy. The Civil Rights Act requires employers to reasonably accommodate the religious beliefs of employees unless the employer can show it will create an undue hardship on the company to do so. Mr. Buonanno felt his Christian beliefs prevented him from valuing or agreeing with homosexuality, which he views as a sin, but he pledged not to discriminate against or harass anyone, said John W. Whitehead, president of the Rutherford Institute, the group that represented Mr. Buonanno. This issue is about more than an objection to homosexuality, Mr. Whitehead said. It concerns the freedom of conscience the right of individuals to object to something they believe is wrong, especially when it contradicts their religious beliefs, whether it is war, abortion, homosexuality or a number of other issues. A spokesman for Comcast, which owns ATT Broadband, said, the company is disappointed in the court's ruling, which they said appears to ignore attempts by companies to foster diversity and nondiscrimination in the workplace. The spokesman, who asked not to be named, said the company is reviewing the case and might appeal the ruling. Mr. Buonanno did not ask the court to reinstate him as a quota specialist, instead seeking monetary compensation. He now works for Mental Health Corporation of Denver as a counselor. The ruling could embolden other Christians or religious people to challenge similar policies, said Mr. Whitehead, who expects court challenges to the sensitivity training companies sometimes require, which he said often aims at training workers to accept and value diversity, including homosexuality. I think Buonanno is just the tip of the iceberg, Mr. Whitehead said. Mr. Buonanno wasn't asking anything that would unduly burden
Re: Civil unions and marriage
Greetings, I actually am sympathetic to Professor Laycock's solution. It seems to me that the problems of marriage (at least in our legal tradition) were created by Henry VIII, when the ecclesiastical courts were made into an arm of the state. It makes sense to give marriage back to the churches and the private sphere, and let the state create some separate category. I am curious if anyone knows the history. How did marriage operate when the ecclesiastical courts were separate. Did the common law have some parallel notion of marriage with the ecclesiastical courts to handle stuff like the decent of land, etc. I remember reading someplace that in medieval law a marriage for purposes of the common law courts could be formed by simple agreement, but that a marriage for purposes of the ecclesiastical courts required the sacrament of marriage celebrated by the church. The differing court systems would then give differing remedies depending on what kind of marriage you had. Does anyone with more background on this, know if this is right? Incidentally, I am still confused as to why civil unions present an establishment clause issue. In what sense is religion advanced or established merely because the government has a policy that makes some religious citizens happier? If making a distinction between civil unions and heterosexual marriage is an unconstitutional establishment, then it seems that heterosexual marriage itself would be an unconstitutional establishment. Nate Oman At 10:47 AM 12/5/2003 -0600, you wrote: What seems to me more plausibly unconstitutional is the state and churches jointly administering marriage without distinguishing, either in institution or in vocabulary, the religious relationship (and sacrament, in some faiths) from the legal relationship. The better solution may be civil unions for everybody as the only state recognized relationship. Marriage would then be a wholly religious relationship. And they would be independent of each other. You could enter into marriage without a civil union, or vice versa, or you could do both. And you could terminate a civil union without terminating the marriage, or vice versa, or you could do both. At 10:38 AM 12/5/2003 -0600, you wrote: The previously ignorable entanglement is becoming unpleasantly obvious as the move toward gay marriage progresses, especially as opponents continually express themselves in religious terms. (I note that Pres. Bush responded to the recent Massachusetts case by saying, Marriage is a sacred institution between a man and a woman. Today's decision of the Massachusetts Supreme Judicial Court violates this important principle. I will work with congressional leaders and others to do what is legally necessary to defend the sanctity of marriage. ) Mark seems to be suggesting that it s not accommodation in the constitutionally permissible sense, but just in the political wisdom sense: better to proceed by steps, and allow some bit of solace to the losing side. I think Dean made his unguarded statement because he assumed the proponents of gay marriage ought to be happy enough, and meanwhile it was appropriate to show some respect for the feelings of those who might be quite angry with him for signing the law. I still can t see why it is not unconstitutional. Ann Mark Graber [EMAIL PROTECTED] wrote: I think the accommodation problem is this. For better or (I think) worse, marriage and marriage law have historically entangled church and state in ways that are probably inconsistent with my notions of establishment in the abstract. Part of what civil unions do is attempt some disentangling. Still, given the very long history, efforts at complete disentanglement seem unwise for the foreseeable future. Hence, given people the choice of different forms of unions seems the best choice given past practice. Mark A. Graber [EMAIL PROTECTED] 12/05/03 10:48AM Mark raises the question of accommodation of religion, which my students also raised. My problem with that analysis is this: when have the courts accepted accommodation when it meant leaving the people to be accommodated in the position they were already in but burdening someone else as a way of pleasing them? I don?t think it is like, say, Amos, where you cut a swath around some traditional freedom as you create a new right for a group. It seems more like adopting Title VII with a right against discrimination but requiring different job titles for the people in groups that had previously been discriminated against so that the people who had the jobs before the law would not have to feel offended by the newly entitled persons having the same job. Is there really precedent for that approach to accommodation? (Sorry for the large font, which was apparently contagious. I hadn?t meant to send it out in that form.) Ann Mark Graber [EMAIL PROTECTED] wrote: Why not treat this as an historical accommodation of religion. We might imagine the state has three (four?) categories.
