Re: Wills that state they are to be interpreted under religious law

[verizon]

The courts are not going to get into which version of Sharia law applies. They 
want to apply “neutral principals of law.” The court will want something that 
can be applied mechanically and does not violate public policy.
 
There are many cases of wills with religious requirements.
 
Shapira v. Union National Bank 315 NE2d 825 (Ohio 1974). Requirement that son, 
Daniel Jacob Shapira, marry a Jewish girl the daughter of two Jewish parents 
within 7 years of dad’s death was upheld by the court. (I think there has been 
more than one movie with the time limit requirement.)
 
What if he marries a woman who meets the requirements and they join Jews for 
Jesus?
 
Maddox v Maddox, 52 Va 804 (Virginia 1854) Requirement that niece marry a 
Quaker was an unreasonable restraint because there were only 5 or 6 Quaker 
bachelors in the neighborhood. There may have been a different result if the 
niece had lived in Pennsylvania.
 
Will of Bernard Manger set up a trust to pay for grandchildren’s college 
education so long a they go to Shabbat services twice a month. Two sons 
disinherited because they did not marry Jewish women.  Senator Joseph Lieberman 
is the trustee. A settlement rewriting the will was agreed to with the two sons 
inheriting and their wives converting to Judaism in the orthodox manner. (Wall 
Street Journal August 25, 2000)
 
Alan Armstrong

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






On Apr 29, 2011, at 7:07 PM, Douglas Laycock wrote:

> this seems rather obviously to be a homemade will (what American lawyer 
> drafting a formal docunment would talk about kids instead of children), and 
> if he had gotten proper legal advice, he could have left his money as he 
> wanted, and preferred his sons to his daughters, with no limitation in any 
> state except Louisiana I think. 
> 
> So in part the question is whether he can do indirectly what he could have 
> done directly. But that's the question only if Islamic law is clear, and 
> there's only one version on this issue. I don't know the answer, but there 
> are said to be four main schools of Islamic law, and it seems unlikely that 
> they all unambiguously agree on how to divide an intestate estate. But they 
> might. I certainly don't know.
> 
> On Fri, 29 Apr 2011 16:05:10 -0700
> "Volokh, Eugene"  wrote:
>> Any thoughts about the case below?  I think I'd raised this question before 
>> on the list, but the case offers an especially concrete example:
>> 
>> 
>> In Alkhafaji v. TIAA-CREF Individual and Instit. Services LLC, 2010 WL 
>> 1435056 (Pa. Ct. Com. Pl. Jan. 14, 2010), Prof. Abbass 
>> Alkhafaji died, and 
>> left a will that apparently said, in relevant part,
>> 
>> (4) About my pension, the beneficiaries are all my biological kids and my 
>> current wife, ... after reducing all costs associated with the house 
>> [The] rest of the pension, if any left, should be divided according to 
>> Islamic Laws and Sharia
>> 
>> (9) In case I have additional monetary benefits from my job, such as life 
>> insurance, 401K, 403B or any other retirement funds that I am not aware of, 
>> Allah as my witness, They should be divided, after costs associated with the 
>> payment of those funds according to Islamic Laws and “Sharia.”
>> 
>> The trial court entered an order that concluded with, “(1) TIAA-CREF 
>> Individual and Institutional Services LLC, shall make distribution of the 
>> pension accounts of the TIAA-CREF certificates ... to the decedent’s 
>> surviving spouse, ... in accordance with decedent’s last will and testament 
>> dated July 17, 2007, and to his biological children, ... in accordance of 
>> the law of Sharia, mainly [sic], one-eighth share to the surviving spouse, 
>> ... and thereafter, the remaining balance to be divided, two shares each to 
>> the six male children, and one share each to the [two] female children.”
>> 
>> 
>> 
>> This raises two questions:
>> 
>> 
>> 
>> (1) May a court interpret a will — or a contract, deed, trust instrument, or 
>> what have you — that calls for the application of religious law (whether 
>> Islamic law, Jewish law, canon law, or any other religious law)? Or does the 
>> Establishment Clause preclude courts from deciding what, say, Islamic law 
>> actually requires, at least if there’s a controversy between the parties 
>> about what the “true” interpretation of the religious law should be? Here, 
>> one side argues that under Islamic law, the contested provisions of the will 
>> are invalid, and that the court erred in relying on the widow’s 
>> interpretation of Sharia law; to quote the appellee’s brief, 2011 WL 1573386:
>> 
>> The Court’s determination that the pension should be distributed by giving 
>> the widow one eighth of the estate, with the remainder going to the children 

Re: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement?

[verizon]

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



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Re: Faith Base Banking

[verizon]

I think the bank was claiming something like Hebrew National's "we answer to a 
higher authority."
That is, they would be more friendly, transparent, and helpful than other 
banks. Maybe they would keep the borrower from getting a loan that could not be 
repaid.

Alan

Law Office of Alan Leigh Armstrong
18652 Florida St., Suite 225
Huntington Beach CA 92648-6006
714 375 1147 faz 714 782 6007
a...@alanarmstrong.com
Serving the family and small business since 1984





On May 10, 2010, at 2:51 PM, Vance R. Koven wrote:

> I don't see any particular connection to religion at all here. Everybody 
> seems to be saying they were in compliance with banking regulations, the 
> securities laws and anything else they've been charged with violating. If 
> there is going to be a claim that being a "religious" bank means they don't 
> have to abide by whatever lending criteria the law establishes (and if they 
> were out of compliance, I'd like to know what Fannie Mae and Freddie Mac's 
> excuse was), it would strike me as both a "last refuge of a scoundrel" issue 
> and a possible estoppel issue if they didn't make any exemption claims when 
> obtaining their banking licenses (I don't know what regulations would apply 
> to the borrower--there are already cases that hold a bank loan is not a 
> securities transaction to which Rule 10b-5 would apply).
> 
> There are, however, religious banks, in the sense of banks that apply 
> religious law to their products, chiefly Islamic banks that structure 
> products around the interest prohibition. Of course, Western banks also deal 
> in such products for clients to whom the religious prohibitions matter. 
> However, the NYT article doesn't suggest that Integrity was claiming a 
> Christian loan is one that doesn't need to be repaid.
> 
> Vance
> 
> On Mon, May 10, 2010 at 2:30 PM,  wrote:
> Sounds like religious insurance.  They typically argue they should not have 
> to abide by regulations and they discriminate on the basis of religion in 
> hiring and in choosing customers
> 
> As I remember there is a religious exemption for religious insurers in the 
> health care law.
> 
> Marci
> Sent from my Verizon Wireless BlackBerry
> 
> -Original Message-
> From: "Volokh, Eugene" 
> Date: Mon, 10 May 2010 11:13:12
> To: 'Law & Religion issues for Law Academics'
> Subject: RE: Faith Base Banking
> 
> ___
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> 
> 
> -- 
> Vance R. Koven
> Boston, MA USA
> vrko...@world.std.com
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Re:

[verizon]

I have a problem picturing the situation.

She is claiming she was fired by a Roman Catholic hospital for wearing clothing 
that, I presume, is similar to what Amish women wear. 
Her style of dress is probably closer to what nuns wore until the 60"s than 
what many of the female employees of the hospital are wearing today.

Alan

Law Office of Alan Leigh Armstrong
18652 Florida St., Suite 225
Huntington Beach CA 92648-6006
714 375 1147 faz 714 782 6007
a...@alanarmstrong.com
Serving the family and small business since 1984





On May 4, 2010, at 2:24 PM, Marc Stern wrote:

>  
> It is hard to believe Congress meant to allow the defendant to deny the 
> plaintiff employment because of her religiously mandated dress reflecting her 
> different religious beliefs, but meant to allow a suit when the employer 
> simply makes adverse comments about the person's dress.
> On the other hand ,i think the court is right about retaliation cases not 
> being preempted by the religious exemption.
> Marc Stern
> From: religionlaw-boun...@lists.ucla. d to  edu 
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
> Sent: Tuesday, May 04, 2010 4:36 PM
> To: 'Law & Religion issues for Law Academics'
> Subject: Religious harassment claim against a religious hospital?
> 
>Prof. Howard Friedman’s excellent Religion Clause blog pointed 
> to Kennedy v. Villa St. Catherine’s, Inc. (D. Md. Apr. 30), 
> http://www.mdd.uscourts.gov/Opinions/Opinions/Kennedymsjm&o043010.pdf .  
> Plaintiff, a nursing assistant, was a member of the Church of the Brethren 
> and wore her denomination’s religious garb; the Assistant Director of Nursing 
> Services at Villa St. Catherine’s Nursing Center allegedly told her – in 
> front of the hospital’s administrator/CEO – that plaintiff’s clothes were 
> “inappropriate in a Catholic institution ... made the residents’ family 
> members uncomfortable, ... and that Plaintiff should conform to a more 
> traditional mode of dress.”  Some time later – it’s not clear to me when – 
> plaintiff was fired.  She sued, claiming in part that the conduct was open 
> his remarks.
> It is hard to
>The defendant moved for summary judgment, apparently based 
> only on the Title VII exemption for religious discrimination by religious 
> institutions, and not (yet) based on the claim that the behavior was not 
> “severe or pervasive” enough to create a hostile or abusive environment based 
> on religion for the plaintiff and for a reasonable person.  The claim that 
> the defendant was a religious institution was apparently “undisputed.”  The 
> court, however, held that religious harassment isn’t covered by that 
> exemption, largely because “Unlike decisions to employ or fire based on 
> religious beliefs, harassment is not a legitimate part of creation or 
> maintenance of a workforce composed of individuals of compatible religious 
> beliefs.  Nor could Congress have considered it a legitimate way to ‘exercise 
> a preference,’” and because the EEOC has taken the view that “the religious 
> organization ‘exemption only applies to hiring and discharge, and does not 
> apply to terms, conditions, or privileges of employment, such as wages or 
> benefits.’”
>  
>Any thoughts on whether this decision is sensible?  It strikes 
> me as unsound as a matter of statutory construction, because the exemption 
> applies to “discrimination,” and the premise of hostile environment 
> harassment law is that harassment is illegal precisely because it constitutes 
> discrimination in the terms and conditions of employment.  (The EEOC’s view 
> about the exemption generally not applying to terms, conditions, and 
> privileges of employment thus strikes me as unsound as well.)
>  
>But beyond this, it strikes me as exacerbating the First 
> Amendment dangers posed by hostile environment harassment law.  Religious 
> harassment claims might apply not just based on statements to the particular 
> person, but also based on religious proselytizing aimed at the employees at 
> large, based on religious claims that offend other religious belief systems, 
> and so on – the sort of behavior that I would think religious institutions 
> should be free to engage in.  Or am I missing something here?
>  
>Eugene
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