RE: Can religious and secular courts exist in the same nation?

[Volokh, Eugene]

I don't think divorce is allowed by arbitration, but my
understanding is that arbitration of the property division is allowed.
Some states -- perhaps most -- bar arbitration of child custody, child
support, and visitation questions, on the theory that those involve the
interests of the child and must be decided by a court under the best
interests test; but as best I can tell other states do allow at least
some such arbitration (though with some degree of review in case to make
sure the decision isn't against the child's best interests).
 
Eugene




From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Eric Rassbach
Sent: Friday, November 21, 2008 6:54 AM
To: Law & Religion issues for Law Academics
        Subject: RE: Can religious and secular courts exist in the same
nation?



 

One family law question: is divorce allowed by arbitration
anywhere in the United States? The world?

 

It seems to me that the other difference between entering into a
marriage and getting a divorce is that divorce might involve the
interests of third parties-children, third-party contractors, etc.  I am
quite ignorant of family law, prenuptial agreements, etc., but it seems
like spouses could not enter into enforceable marriage contracts,
subject to arbitration, regarding how, for example, child custody would
be treated in the event of a divorce.  But perhaps these sorts of
agreements exist?

 

 

 

From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene
Sent: Friday, November 21, 2008 7:55 AM
To: Law & Religion issues for Law Academics
    Subject: RE: Can religious and secular courts exist in the same
nation?

 

But doesn't the "one side's choice" characterization assume
the conclusion that people's long-term contracts to engage in religious
arbitration shouldn't count as a choice?  As Cohen v. Cowles Media makes
clear, one can waive free speech rights, and I take it this can also be
done some time in advance.  (Various kinds of nondisclosure agreements
do this all the time.)  Nor does a political conversion excuse one from
such a waiver, I take it.  Ordinary arbitration agreements generally
waive jury trial rights, years in advance of the time when the jury
trial is to take place.  Why wouldn't people be able to waive their
rights not to have to go to religious court, when they expressly
contractually agree to that?  They would still retain the right to
change their faith -- just not to repudiate the promises they made
before that change.

 

Eugene

 

Doug Laycock writes:

 

I have gradually come round to the view that state
recognition of marriages performed by religious authority is problematic
too, but not for the same reasons as divorce.  The marriage is
consensual, and the choice of who is to perform the marriage is
consensual; neither spouse is being coerced by government power.  But a
contested divorce is not consensual, and if one spouse wants to be in
religious court and the other wants to be in civil court, the choice of
where to get it is not consensual.  The question is whether the state
can use its coercive power to enforce one side's choice.

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RE: Can religious and secular courts exist in the same nation?

[Eric Rassbach]

One family law question: is divorce allowed by arbitration anywhere in the 
United States? The world?

It seems to me that the other difference between entering into a marriage and 
getting a divorce is that divorce might involve the interests of third 
parties-children, third-party contractors, etc.  I am quite ignorant of family 
law, prenuptial agreements, etc., but it seems like spouses could not enter 
into enforceable marriage contracts, subject to arbitration, regarding how, for 
example, child custody would be treated in the event of a divorce.  But perhaps 
these sorts of agreements exist?



From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene
Sent: Friday, November 21, 2008 7:55 AM
To: Law & Religion issues for Law Academics
Subject: RE: Can religious and secular courts exist in the same nation?

But doesn't the "one side's choice" characterization assume the conclusion 
that people's long-term contracts to engage in religious arbitration shouldn't 
count as a choice?  As Cohen v. Cowles Media makes clear, one can waive free 
speech rights, and I take it this can also be done some time in advance.  
(Various kinds of nondisclosure agreements do this all the time.)  Nor does a 
political conversion excuse one from such a waiver, I take it.  Ordinary 
arbitration agreements generally waive jury trial rights, years in advance of 
the time when the jury trial is to take place.  Why wouldn't people be able to 
waive their rights not to have to go to religious court, when they expressly 
contractually agree to that?  They would still retain the right to change their 
faith -- just not to repudiate the promises they made before that change.

Eugene

Doug Laycock writes:

I have gradually come round to the view that state recognition of marriages 
performed by religious authority is problematic too, but not for the same 
reasons as divorce.  The marriage is consensual, and the choice of who is to 
perform the marriage is consensual; neither spouse is being coerced by 
government power.  But a contested divorce is not consensual, and if one spouse 
wants to be in religious court and the other wants to be in civil court, the 
choice of where to get it is not consensual.  The question is whether the state 
can use its coercive power to enforce one side's choice.
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Re: Can religious and secular courts exist in the same nation?

[Paul Finkelman]

it would make much more sense to follow the French rule (as well as that of 
many other countries) and have the state register the marriage and then let 
people do what they want with their faith.


Paul Finkelman
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

[EMAIL PROTECTED]

www.paulfinkelman.com

--- On Fri, 11/21/08, Douglas Laycock <[EMAIL PROTECTED]> wrote:

From: Douglas Laycock <[EMAIL PROTECTED]>
Subject: Re: Can religious and secular courts exist in the same nation?
To: religionlaw@lists.ucla.edu, [EMAIL PROTECTED]
Date: Friday, November 21, 2008, 2:30 AM


I have gradually come round to the view that state recognition of marriages 
performed by religious authority is problematic too, but not for the same 
reasons as divorce.  The marriage is consensual, and the choice of who is to 
perform the marriage is consensual; neither spouse is being coerced by 
government power.  But a contested divorce is not consensual, and if one spouse 
wants to be in religious court and the other wants to be in civil court, the 
choice of where to get it is not consensual.  The question is whether the state 
can use its coercive power to enforce one side's choice.

Quoting [EMAIL PROTECTED]:

> In a message dated 11/19/08 2:38:57 PM, [EMAIL PROTECTED] writes:
>
>> ... This is not a problem if both parties agree, after the dispute has
>> arisen, to go to the religious court, and if both parties abide by 
>> the judgment. 
>> That is just a mechanism for voluntary dispute resolution; the government is
>> not involved.  But even in this situation, if the religious court grants a
>> divorce that the state recognizes, we have gone beyond voluntary dispute
>> resolution. 
>>
> Why is it more problematic for the state to recognize a divorce decreed by a
> religious authority than it is for the state to recognize a marriage decreed
> by a religious authority?   (Not a rhetorical question.)
>
>
>
> **
> One site has it all. Your email accounts, your social networks,
> and the things you love. Try the new AOL.com
> today!(http://pr.atwola.com/promoclk/10075x1212962939x1200825291/aol?redir=http://www.aol.com/?optin=new-dp
> %26icid=aolcom40vanity%26ncid=emlcntaolcom0001)
>


Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713___
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RE: Can religious and secular courts exist in the same nation?

[Volokh, Eugene]

But doesn't the "one side's choice" characterization assume the
conclusion that people's long-term contracts to engage in religious
arbitration shouldn't count as a choice?  As Cohen v. Cowles Media makes
clear, one can waive free speech rights, and I take it this can also be
done some time in advance.  (Various kinds of nondisclosure agreements
do this all the time.)  Nor does a political conversion excuse one from
such a waiver, I take it.  Ordinary arbitration agreements generally
waive jury trial rights, years in advance of the time when the jury
trial is to take place.  Why wouldn't people be able to waive their
rights not to have to go to religious court, when they expressly
contractually agree to that?  They would still retain the right to
change their faith -- just not to repudiate the promises they made
before that change.
 
Eugene
 
Doug Laycock writes:
 

I have gradually come round to the view that state recognition
of marriages performed by religious authority is problematic too, but
not for the same reasons as divorce.  The marriage is consensual, and
the choice of who is to perform the marriage is consensual; neither
spouse is being coerced by government power.  But a contested divorce is
not consensual, and if one spouse wants to be in religious court and the
other wants to be in civil court, the choice of where to get it is not
consensual.  The question is whether the state can use its coercive
power to enforce one side's choice.





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Re: Can religious and secular courts exist in the same nation?

[Douglas Laycock]

I have gradually come round to the view that state recognition of marriages 
performed by religious authority is problematic too, but not for the same 
reasons as divorce.  The marriage is consensual, and the choice of who is to 
perform the marriage is consensual; neither spouse is being coerced by 
government power.  But a contested divorce is not consensual, and if one spouse 
wants to be in religious court and the other wants to be in civil court, the 
choice of where to get it is not consensual.  The question is whether the state 
can use its coercive power to enforce one side's choice.

Quoting [EMAIL PROTECTED]:

> In a message dated 11/19/08 2:38:57 PM, [EMAIL PROTECTED] writes:
>
>> ... This is not a problem if both parties agree, after the dispute has
>> arisen, to go to the religious court, and if both parties abide by 
>> the judgment. 
>> That is just a mechanism for voluntary dispute resolution; the government is
>> not involved.  But even in this situation, if the religious court grants a
>> divorce that the state recognizes, we have gone beyond voluntary dispute
>> resolution. 
>>
> Why is it more problematic for the state to recognize a divorce decreed by a
> religious authority than it is for the state to recognize a marriage decreed
> by a religious authority?   (Not a rhetorical question.)
>
>
>
> **
> One site has it all. Your email accounts, your social networks,
> and the things you love. Try the new AOL.com
> today!(http://pr.atwola.com/promoclk/10075x1212962939x1200825291/aol?redir=http://www.aol.com/?optin=new-dp
> %26icid=aolcom40vanity%26ncid=emlcntaolcom0001)
>

Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713___
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Re: Can religious and secular courts exist in the same nation?

[ArtSpitzer]

In a message dated 11/19/08 2:38:57 PM, [EMAIL PROTECTED] writes:

> ... This is not a problem if both parties agree, after the dispute has 
> arisen, to go to the religious court, and if both parties abide by the 
> judgment.  
> That is just a mechanism for voluntary dispute resolution; the government is 
> not involved.  But even in this situation, if the religious court grants a 
> divorce that the state recognizes, we have gone beyond voluntary dispute 
> resolution. 
> 
Why is it more problematic for the state to recognize a divorce decreed by a 
religious authority than it is for the state to recognize a marriage decreed 
by a religious authority?   (Not a rhetorical question.)



**
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Re: Can religious and secular courts exist in the same nation?

[Vance R. Koven]

This is an interesting wrinkle, but I don't see how submitting to the
religious courts for the adjudication of a particular dispute constitutes
the prevention of conversion. If A and B, being both citizens and residents
of France, enter into a contract with an arbitration clause that applies
French law and makes France the seat of the arbitration, and B later
emigrates to the US and becomes a US citizen, there is no policy objection
to conducting the arbitration as originally stipulated. Let's say that
French law would apply some rules to the agreement and its performance that
hinged on the parties' nationality--the arbitrator would need to take into
consideration that at the time of the dispute, party B was not a French
national (if that's possible--it used to be that you could not, under French
law, divest yourself of French nationality). Similarly, one would need to
determine if in a religious court proceeding the rules differ if one party
is not a member of that religion. That doesn't invalidate the proceeding, it
just means that (possibly) different substantive rules might apply at the
time of dispute than would have applied if there had been no conversion.

While that may be a somewhat mitigating factor, even if the religious court
concluded that an agreement to submit to its jurisdiction and the
application of religious law to the dispute could not be undone or modified
based on a change in one party's religion (for example because the religious
law does not recognize changes in religion, although as I understand it even
Islam recognizes such a thing, albeit it sometimes criminalizes it), unless
the remedy ordered offended some basic tenet of national law (slavery,
mutilation, etc.), the national courts should recognize the judgment.

For this reason, I think Prof. Finkelman's concern about the Illinois case
is somewhat misdirected, if what he is saying is that a non-Orthodox Jew can
void the marriage contract's "arbitration" clause even though he signed the
contract. If the religious court had merely *ordered* the religious divorce
and prescribed alimony or other material support, I don't see what the
objection would be, since this would have been perfectly consistent with the
secular proceedings other perhaps than the measurement of damages. The
problem, if I understand correctly, is that under Jewish law the court can't
order a get, it can only recognize one voluntarily acceded to by the
husband. In that case, ordering the husband to consent is putting words into
his mouth rather than enforcing a pre-existing agreement, and it is only
that aspect of the case that suggests Constitutional issues. Still, in light
of the fact that there are other areas in which people can waive free speech
rights, I don't think the religious court's actions raise important enough
fundamental-rights concerns to warrant secular courts' intervention. The
fact that the husband was no longer a member of that religious sect doesn't
seem to be critical here--presumably the court would have done the same
thing even if the husband had remained (or become) Orthodox. Perhaps the
Jewish courts need to get a bit more creative and rule that the husband's
participation in the secular divorce constituted the necessary consent to a
religious one? A good legal fiction is something all us secular lawyers can
appreciate.

Vance

QUEEN.  You have all incurred death; but I
can't slaughter the whole company!  And yet (unfolding a scroll)
the law is clear--every fairy must die who marries a mortal!
LORD CH.  Allow me, as an old Equity draftsman, to make a
suggestion.  The subtleties of the legal mind are equal to the
emergency.  The thing is really quite simple--the insertion of a
single word will do it.  Let it stand that every fairy shall die
who *doesn't* marry a mortal, and there you are, out of your
difficulty at once!

On Wed, Nov 19, 2008 at 2:37 PM, Douglas Laycock <[EMAIL PROTECTED]> wrote:

> This argument that voluntary submission to religious courts is like
> voluntary submission to arbitration has a lot of force.  And it can be
> carried a step further:  arguably it discrimiantes against religion if
> agreements to secular arbitration are enforceable and agreements to
> religious arbitration are not.
>
> As against the discrimination argument, there is the response that secular
> arbitrators at least purport to be enforcing the law of the land (even
> though they often create ad hoc compromises in practice); religious courts
> make no pretense of enforcing secular law.  I'm not sure how far that
> carries.
>
> The more serious argument against civil enforcement of judgments of
> religious courts is that the right to change one's religion is fundamental
> to free exericse.  If I sign a commercial arbitration agreement at time 1,
> and object to arbitration at time 2, when a dispute has actually arisen, I
> am out of luck.  But if I agree to submit to a religious court at time 1
> (say, when I get married), and I object to the re

RE: Can religious and secular courts exist in the same nation?

[James Maule]

I have heard two anecdotes, but know of no reported decision, involving a 
similar situation in Roman Catholic canon law proceedings for an annulment. The 
pattern was the same. A Roman Catholic marries a non-Catholic in a Roman 
Catholic ceremony, with appropriate dispensation (which includes agreements by 
the non-Catholic in terms of raising children Catholic, not interfering with 
the Catholic spouse's exercise of her religion, etc.) Later, when the marriage 
falls apart, the couple divorces under civil law. At about the same time, the 
Roman Catholic ex-spouse also seeks an annulment in order to marry again in the 
church. The non-Roman Catholic spouse refuses to participate, making it more 
difficult or even impossible for the Roman Catholic spouse to make the case for 
an annulment. In one instance, I was told by the person telling me one of the 
anecdotes that the civil court declined to order the non-Roman Catholic spouse 
to make an appearance in the annulment proceedings. I d!
 on't know how the story ended because it was told to me while it was underway 
and I never followed up. In the other anecdote I don't think the proceedings 
had moved along to that point.

Anyhow, would it be wrong to think that somewhere, in some state, this version 
of the question was litigated and became the subject of a reported decision? It 
strikes me as a not uncommon occurrence, that is, surely the response rate of 
the non-Catholic spouse in these instances isn't 100 percent.

Jim Maule

-Original Message-
From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Paul Finkelman
Sent: Thursday, November 20, 2008 9:27 AM
To: religionlaw@lists.ucla.edu; [EMAIL PROTECTED]
Subject: RE: Can religious and secular courts exist in the same nation?

Here is a possible example that supports Doug`s position.  There was a case in 
Illinois some years ago in which a Jewish couple married at an Orthodox 
synagogue (where the wife`s father attended) but niether was orthodox.  The 
wife then became orthodox and the changing religious values led to divorce.  
She demanded a "Get" (a Jewish divorce) from the Orthodox Bet Din, arguing that 
their orthodox kettubah (Jewish Marraige Contract which is written in Aramaic 
which neither husband nor wife could read or understand) required that he give 
her the Get; he refused, arguing that he did not beleive in Orthodox Jewish 
rules and so would not participate.  An Illinois Court ordered him to give her 
the Orthodox Get.  I think the Illinois Court was totally wrong in doing this 
and that the Kettuhbah does not require that he give her a Get. (I am not in 
the US now and cannot locate the case, but it is cited in this article: 
Finkelman, A Bad Marriage:  Jewish Divorce and the First Amendment!

 , 2 Cardozo Women's Law Journal 131-72 (1995).) But, imagine if he had 
converted to another faith altogether?  Become a Baptist or Catholic? Could the 
court order him to go to a Rabbinical Court to participate in a religious/legal 
ceremony process?

Paul Finkelman

Paul Finkelman
President William McKinley Distinguished Professor of Law
 and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386
[EMAIL PROTECTED]
>>> Douglas Laycock <[EMAIL PROTECTED]> 11/19/08 2:37 PM >>>


This argument that voluntary submission to religious courts is like voluntary 
submission to arbitration has a lot of force.  And it can be carried a step 
further:  arguably it discrimiantes against religion if agreements to secular 
arbitration are enforceable and agreements to religious arbitration are not.

As against the discrimination argument, there is the response that secular 
arbitrators at least purport to be enforcing the law of the land (even though 
they often create ad hoc compromises in practice); religious courts make no 
pretense of enforcing secular law.  I'm not sure how far that carries.

The more serious argument against civil enforcement of judgments of religious 
courts is that the right to change one's religion is fundamental to free 
exericse.  If I sign a commercial arbitration agreement at time 1, and object 
to arbitration at time 2, when a dispute has actually arisen, I am out of luck. 
 But if I agree to submit to a religious court at time 1 (say, when I get 
married), and I object to the religious court at time 2, when a dispute has 
actually arisen, I may have abandoned the faith in the meantime; I have at the 
very least changed my view of religious courts.  If government holds me to my 
time 1 agreement, government is preventing me from changing my religion.

This is not a problem if both parties agree, after the dispute has arisen, to 
go to the religious court, and if both parties abide by the judgment.  That is 
just a mechanism for voluntary dispute resolution; the government is not 
involved.  But even in this situation, if the religious court grant

RE: Can religious and secular courts exist in the same nation?

[Paul Finkelman]

Here is a possible example that supports Doug`s position.  There was a case in 
Illinois some years ago in which a Jewish couple married at an Orthodox 
synagogue (where the wife`s father attended) but niether was orthodox.  The 
wife then became orthodox and the changing religious values led to divorce.  
She demanded a "Get" (a Jewish divorce) from the Orthodox Bet Din, arguing that 
their orthodox kettubah (Jewish Marraige Contract which is written in Aramaic 
which neither husband nor wife could read or understand) required that he give 
her the Get; he refused, arguing that he did not beleive in Orthodox Jewish 
rules and so would not participate.  An Illinois Court ordered him to give her 
the Orthodox Get.  I think the Illinois Court was totally wrong in doing this 
and that the Kettuhbah does not require that he give her a Get. (I am not in 
the US now and cannot locate the case, but it is cited in this article: 
Finkelman, A Bad Marriage:  Jewish Divorce and the First Amendment!
 , 2 Cardozo Women's Law Journal 131-72 (1995).) But, imagine if he had 
converted to another faith altogether?  Become a Baptist or Catholic? Could the 
court order him to go to a Rabbinical Court to participate in a religious/legal 
ceremony process? 

Paul Finkelman

Paul Finkelman
President William McKinley Distinguished Professor of Law
 and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386 
[EMAIL PROTECTED]
>>> Douglas Laycock <[EMAIL PROTECTED]> 11/19/08 2:37 PM >>>


This argument that voluntary submission to religious courts is like voluntary 
submission to arbitration has a lot of force.  And it can be carried a step 
further:  arguably it discrimiantes against religion if agreements to secular 
arbitration are enforceable and agreements to religious arbitration are not. 

As against the discrimination argument, there is the response that secular 
arbitrators at least purport to be enforcing the law of the land (even though 
they often create ad hoc compromises in practice); religious courts make no 
pretense of enforcing secular law.  I'm not sure how far that carries. 

The more serious argument against civil enforcement of judgments of religious 
courts is that the right to change one's religion is fundamental to free 
exericse.  If I sign a commercial arbitration agreement at time 1, and object 
to arbitration at time 2, when a dispute has actually arisen, I am out of luck. 
 But if I agree to submit to a religious court at time 1 (say, when I get 
married), and I object to the religious court at time 2, when a dispute has 
actually arisen, I may have abandoned the faith in the meantime; I have at the 
very least changed my view of religious courts.  If government holds me to my 
time 1 agreement, government is preventing me from changing my religion. 

This is not a problem if both parties agree, after the dispute has arisen, to 
go to the religious court, and if both parties abide by the judgment.  That is 
just a mechanism for voluntary dispute resolution; the government is not 
involved.  But even in this situation, if the religious court grants a divorce 
that the state recognizes, we have gone beyond voluntary dispute resolution.   

Quoting "Volokh, Eugene" <[EMAIL PROTECTED]>:

> I'm inclined to say that this is exactly right.  In fact, the
> Court's church property and church government cases suggest that
> religious arbitration is the only permissible mode for resolving those
> cases that require interpretation of religious doctrine.  And U.S. law
> has certainly coexisted for decades, if not longer, with religious
> arbitration by Beth Dins, Christian arbitration bodies, and a smaller
> number of Islamic arbitration bodies.
>
> I was curious, though, about two related questions:  (1)  Does
> Jewish, Muslim, or Christian religious law, as interpreted by at least
> some prominent arbitral bodies, set up rules that are either
> substantively (e.g., men are favored over women in divorce settlements,
> or vice versa) or procedurally (e.g., male witnesses are treated as more
> credible than female witnesses, or religiously orthodox witnesses are
> treated as more credible than apostate witnesses) discriminatory based
> on sex, religion, or ethnicity?  (2)  Is there a generally applicable
> principle of arbitration law (both religious and secular) that declares
> arbitration awards to be against public policy if they are based on
> similarly discriminatory rules?
>
> It may well be that we shouldn't have such a generally applicable
> principle of arbitration law, because parties should be free to waive
> their nondiscrimination rights, at least in certain kinds of contexts.
> But if there such a generally applicable principle, and some religious
> arbitral decisions do indeed tend to involve the application of
> discriminatory rules, then presumably those decisions would be
> unenforceable unless some religious exemption is granted from the

RE: Can religious and secular courts exist in the same nation?

[Volokh, Eugene]

Doug's comments are helpful and thoughtful, as always.  Two brief
follow-ups:
 
(1)  Secular arbitration is allowed to enforce the law of another
land, for instance if the arbitration agreement provides for arbitration
under the law of some foreign country.  It's hard to see why an
agreement to arbitrate under foreign national law should be different
from an agreement to arbitrate under religious law, at least when a
nongovernment arbitrator is doing the arbitration.
 
(2)  I certainly agree that people must have a right to change their
religions, but I wonder whether that means that they can repudiate (or
should be allowed to repudiate) agreements once they no longer have
faith in the underlying cause for the agreement.  If, for instance, I
agree to publish Hindu religious texts, but then convert to a religion
that finds it to be blasphemy to participate in such activity, I take it
that I'm not free to breach the agreement.  Perhaps the agreement ought
not be specifically enforceable (and perhaps it wouldn't be even if it
were a secular contract), but at least I'd be liable for damages, no?
And, if so, what's the difference between that agreement, which I'd
still be bound by (on pain of damages), and an agreement to submit
future disputes to religious arbitration?
 
Eugene




From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock
Sent: Wednesday, November 19, 2008 11:37 AM
To: religionlaw@lists.ucla.edu
    Subject: RE: Can religious and secular courts exist in the same
nation?



This argument that voluntary submission to religious courts is
like voluntary submission to arbitration has a lot of force.  And it can
be carried a step further:  arguably it discrimiantes against religion
if agreements to secular arbitration are enforceable and agreements to
religious arbitration are not.

As against the discrimination argument, there is the response
that secular arbitrators at least purport to be enforcing the law of the
land (even though they often create ad hoc compromises in practice);
religious courts make no pretense of enforcing secular law.  I'm not
sure how far that carries.

The more serious argument against civil enforcement of judgments
of religious courts is that the right to change one's religion is
fundamental to free exericse.  If I sign a commercial arbitration
agreement at time 1, and object to arbitration at time 2, when a dispute
has actually arisen, I am out of luck.  But if I agree to submit to a
religious court at time 1 (say, when I get married), and I object to the
religious court at time 2, when a dispute has actually arisen, I may
have abandoned the faith in the meantime; I have at the very least
changed my view of religious courts.  If government holds me to my time
1 agreement, government is preventing me from changing my religion.

This is not a problem if both parties agree, after the dispute
has arisen, to go to the religious court, and if both parties abide by
the judgment.  That is just a mechanism for voluntary dispute
resolution; the government is not involved.  But even in this situation,
if the religious court grants a divorce that the state recognizes, we
have gone beyond voluntary dispute resolution.  

 

 

Quoting "Volokh, Eugene" <[EMAIL PROTECTED]>:

> I'm inclined to say that this is exactly right.  In fact,
the
> Court's church property and church government cases suggest
that
> religious arbitration is the only permissible mode for
resolving those
> cases that require interpretation of religious doctrine.  And
U.S. law
> has certainly coexisted for decades, if not longer, with
religious
> arbitration by Beth Dins, Christian arbitration bodies, and a
smaller
> number of Islamic arbitration bodies.
>
> I was curious, though, about two related questions:  (1)
Does
> Jewish, Muslim, or Christian religious law, as interpreted by
at least
> some prominent arbitral bodies, set up rules that are either
> substantively (e.g., men are favored over women in divorce
settlements,
> or vice versa) or procedurally (e.g., male witnesses are
treated as more
> credible than female witnesses, or religiously orthodox
witnesses are
> treated as more credible than apostate witnesses)
discriminatory based
> on sex, religion, or ethnicity?  (2)  Is there a generally
applicable
> principle of arbitration law (both religious and secular) that
declares
> arbitration awards to be against public policy if they are
based on
> similarly discriminatory rules?
>
> It may well be that we shouldn't have su

Re: Can religious and secular courts exist in the same nation?

[Paul Diamond]

The issue of Shar'ia courts in the United Kingdom is, of course, primarily a 
political question.  The 'headlines' are no more than the common use of 
arbitration (Arbitration Act 1996) for dispute resolution.  In the United 
Kingdom, as noted, there is only so far that one can go to 'surrender' 
constitutional rights.

The interesting position is that of the government which wishes to promote 
'false jurisdictions' leaving many Islamic women unaware of their rights. It is 
unlikely secular courts will face any challenges to enforcement.   The creation 
of separate communities is unlikely to be healthy, which is the object of the 
policy.  In normal times, this might be a sign of a pluralistic society, but 
not without a concept of the 'common good'.  At the core of this debate is the 
basic need of a liberal State to re-produce itself, namely to produce liberal 
citizens with common values. 

In 1995, the Turkish Constitutional court dissolved Refah, the government 
party, for straying from secularism, which is the guiding doctrine of the 
Turkish State. In the subsequent case of Refah Partis v. Turkey, the European 
Court held that the establishment of a plurality of legal systems based on 
religious beliefs is incompatible with the rule of law. 

Paul

Paul Diamond
Chambers of Paul Diamond
PO Box 1041 Barton
Cambridge CB23 7WY United Kingdom
01223 264544
www.pauldiamond.com
 
  - Original Message - 
  From: Douglas Laycock 
  To: religionlaw@lists.ucla.edu 
  Sent: Wednesday, November 19, 2008 7:37 PM
  Subject: RE: Can religious and secular courts exist in the same nation?


  This argument that voluntary submission to religious courts is like voluntary 
submission to arbitration has a lot of force.  And it can be carried a step 
further:  arguably it discrimiantes against religion if agreements to secular 
arbitration are enforceable and agreements to religious arbitration are not.

  As against the discrimination argument, there is the response that secular 
arbitrators at least purport to be enforcing the law of the land (even though 
they often create ad hoc compromises in practice); religious courts make no 
pretense of enforcing secular law.  I'm not sure how far that carries.

  The more serious argument against civil enforcement of judgments of religious 
courts is that the right to change one's religion is fundamental to free 
exericse.  If I sign a commercial arbitration agreement at time 1, and object 
to arbitration at time 2, when a dispute has actually arisen, I am out of luck. 
 But if I agree to submit to a religious court at time 1 (say, when I get 
married), and I object to the religious court at time 2, when a dispute has 
actually arisen, I may have abandoned the faith in the meantime; I have at the 
very least changed my view of religious courts.  If government holds me to my 
time 1 agreement, government is preventing me from changing my religion.

  This is not a problem if both parties agree, after the dispute has arisen, to 
go to the religious court, and if both parties abide by the judgment.  That is 
just a mechanism for voluntary dispute resolution; the government is not 
involved.  But even in this situation, if the religious court grants a divorce 
that the state recognizes, we have gone beyond voluntary dispute resolution.  





  Quoting "Volokh, Eugene" <[EMAIL PROTECTED]>:

  > I'm inclined to say that this is exactly right.  In fact, the
  > Court's church property and church government cases suggest that
  > religious arbitration is the only permissible mode for resolving those
  > cases that require interpretation of religious doctrine.  And U.S. law
  > has certainly coexisted for decades, if not longer, with religious
  > arbitration by Beth Dins, Christian arbitration bodies, and a smaller
  > number of Islamic arbitration bodies.
  >
  > I was curious, though, about two related questions:  (1)  Does
  > Jewish, Muslim, or Christian religious law, as interpreted by at least
  > some prominent arbitral bodies, set up rules that are either
  > substantively (e.g., men are favored over women in divorce settlements,
  > or vice versa) or procedurally (e.g., male witnesses are treated as more
  > credible than female witnesses, or religiously orthodox witnesses are
  > treated as more credible than apostate witnesses) discriminatory based
  > on sex, religion, or ethnicity?  (2)  Is there a generally applicable
  > principle of arbitration law (both religious and secular) that declares
  > arbitration awards to be against public policy if they are based on
  > similarly discriminatory rules?
  >
  > It may well be that we shouldn't have such a generally applicable
  > principle of arbitration law, because parties should be free to waive
  > their nondiscrimination rights, at least in

RE: Can religious and secular courts exist in the same nation?

[Douglas Laycock]

This argument that voluntary submission to religious courts is like voluntary 
submission to arbitration has a lot of force.  And it can be carried a step 
further:  arguably it discrimiantes against religion if agreements to secular 
arbitration are enforceable and agreements to religious arbitration are not. 

As against the discrimination argument, there is the response that secular 
arbitrators at least purport to be enforcing the law of the land (even though 
they often create ad hoc compromises in practice); religious courts make no 
pretense of enforcing secular law.  I'm not sure how far that carries. 

The more serious argument against civil enforcement of judgments of religious 
courts is that the right to change one's religion is fundamental to free 
exericse.  If I sign a commercial arbitration agreement at time 1, and object 
to arbitration at time 2, when a dispute has actually arisen, I am out of luck. 
 But if I agree to submit to a religious court at time 1 (say, when I get 
married), and I object to the religious court at time 2, when a dispute has 
actually arisen, I may have abandoned the faith in the meantime; I have at the 
very least changed my view of religious courts.  If government holds me to my 
time 1 agreement, government is preventing me from changing my religion. 

This is not a problem if both parties agree, after the dispute has arisen, to 
go to the religious court, and if both parties abide by the judgment.  That is 
just a mechanism for voluntary dispute resolution; the government is not 
involved.  But even in this situation, if the religious court grants a divorce 
that the state recognizes, we have gone beyond voluntary dispute resolution.   

Quoting "Volokh, Eugene" <[EMAIL PROTECTED]>:

> I'm inclined to say that this is exactly right.  In fact, the
> Court's church property and church government cases suggest that
> religious arbitration is the only permissible mode for resolving those
> cases that require interpretation of religious doctrine.  And U.S. law
> has certainly coexisted for decades, if not longer, with religious
> arbitration by Beth Dins, Christian arbitration bodies, and a smaller
> number of Islamic arbitration bodies.
>
> I was curious, though, about two related questions:  (1)  Does
> Jewish, Muslim, or Christian religious law, as interpreted by at least
> some prominent arbitral bodies, set up rules that are either
> substantively (e.g., men are favored over women in divorce settlements,
> or vice versa) or procedurally (e.g., male witnesses are treated as more
> credible than female witnesses, or religiously orthodox witnesses are
> treated as more credible than apostate witnesses) discriminatory based
> on sex, religion, or ethnicity?  (2)  Is there a generally applicable
> principle of arbitration law (both religious and secular) that declares
> arbitration awards to be against public policy if they are based on
> similarly discriminatory rules?
>
> It may well be that we shouldn't have such a generally applicable
> principle of arbitration law, because parties should be free to waive
> their nondiscrimination rights, at least in certain kinds of contexts.
> But if there such a generally applicable principle, and some religious
> arbitral decisions do indeed tend to involve the application of
> discriminatory rules, then presumably those decisions would be
> unenforceable unless some religious exemption is granted from the
> arbitration law principle.
>
> Eugene
>
> Vance Koven writes:
>
>
> We've discussed this a bit on the list before, but I don't see
> why in principle religious courts should not be treated pretty much as
> commercial arbitration is: as a consensual alternative to the state
> legal system (with enforcement permissible through the national courts
> where required). In all such cases, the national legal system provides
> an umbrella of protections, including among other things the necessity
> for consent and honesty in obtaining the agreement by which the parties
> submit to the alternative jurisdiction.
>
> It should not be an objection in most instances that the
> substantive rights of the parties differ from the norms of the secular
> courts. There are very few rights, even constitutional ones, the
> exercise of which in particular circumstances cannot be waived. For
> example, people waive their free speech rights in private contexts all
> the time (think of non-disparagement clauses and even confidentiality
> agreements, including those attached to litigation settlement
> agreements); they waive statutory rights such as nondiscrimination
> rights and antitrust rights; and so on. Some things cannot be waived,
> such as one's right to be free as opposed to enslaved, but of course
> this is understood to be a matter of the perpetuity of the
> arrangement--any employment agreement restricts one's freedom of action
> to an extent--and the mechanism for enforcement (prohibition of contrary
>

RE: Can religious and secular courts exist in the same nation?

[David E. Guinn]

With respect to the "discriminatory" sex based issue raised by Eugene, I am 
curious as to how we can judge discrimination as applied to Shari'a.  For 
example, everyone complains about the Islamic standard that women receive one 
half of what their male siblings receive under inheritance.  What is not 
discussed is that Shari'a also imposes an affirmative "duty to support" those 
same female siblings on the male.  The woman takes her inheritance free and 
clear.  The male, no matter how large or small the inheritance, does not.  
Should the law judge this trade off of benefits and obligations as mutually 
discriminatory and enforce neither?  What if the Islamic courts enforce only 
one of the two obligations?  (Many Western feminists tend to complain that 
favoring the men only is the case in practice.)

David




David E. Guinn, JD, PhD 


Recent Publications Available from SSRN at


http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=199608





Subject: RE: Can religious and secular courts exist in the same nation?
Date: Wed, 19 Nov 2008 10:38:53 -0800
From: [EMAIL PROTECTED]
To: religionlaw@lists.ucla.edu








I'm inclined to say that this is 
exactly right.  In fact, the Court's church property and church government 
cases suggest that religious arbitration is the only permissible mode 
for resolving those cases that require interpretation of religious 
doctrine.  And U.S. law has certainly coexisted for decades, if not longer, 
with religious arbitration by Beth Dins, Christian arbitration bodies, and a 
smaller number of Islamic arbitration bodies.
 
I was curious, though, about two 
related questions:  (1)  Does Jewish, Muslim, or 
Christian religious law, as interpreted by at least some prominent arbitral 
bodies, set up rules that are either substantively (e.g., men are favored over 
women in divorce settlements, or vice versa) or procedurally (e.g., male 
witnesses are treated as more credible than female witnesses, or religiously 
orthodox witnesses are treated as more credible than apostate witnesses) 
discriminatory based on sex, religion, or ethnicity?  (2)  Is there a 
generally applicable principle of arbitration law (both religious and secular) 
that declares arbitration awards to be against public policy if they are based 
on similarly discriminatory rules?
 
It may well be that we shouldn't 
have such a generally applicable principle of arbitration law, because parties 
should be free to waive their nondiscrimination rights, at least in certain 
kinds of contexts.  But if there such a generally applicable principle, and 
some religious arbitral decisions do indeed tend to involve the application of 
discriminatory rules, then presumably those decisions would be unenforceable 
unless some religious exemption is granted from the arbitration law 
principle.
 
Eugene
 
Vance Koven writes:
 
We've 
  discussed this a bit on the list before, but I don't see why in principle 
  religious courts should not be treated pretty much as commercial arbitration 
  is: as a consensual alternative to the state legal system (with enforcement 
  permissible through the national courts where required). In all such cases, 
  the national legal system provides an umbrella of protections, including 
among 
  other things the necessity for consent and honesty in obtaining the agreement 
  by which the parties submit to the alternative jurisdiction. 

It should 
  not be an objection in most instances that the substantive rights of the 
  parties differ from the norms of the secular courts. There are very few 
  rights, even constitutional ones, the exercise of which in particular 
  circumstances cannot be waived. For example, people waive their free speech 
  rights in private contexts all the time (think of non-disparagement clauses 
  and even confidentiality agreements, including those attached to litigation 
  settlement agreements); they waive statutory rights such as nondiscrimination 
  rights and antitrust rights; and so on. Some things cannot be waived, such as 
  one's right to be free as opposed to enslaved, but of course this is 
  understood to be a matter of the perpetuity of the arrangement--any 
employment 
  agreement restricts one's freedom of action to an extent--and the mechanism 
  for enforcement (prohibition of contrary employment rather than specific 
  performance). One also is restricted in waiving rights of third parties (e.g. 
  one's children), which might create some issues under religious law. Still, 
  the general principle ought to be that as to the consenting party an 
agreement 
  to refer most matters to religious courts ought to be upheld and enforced by 
  the secular courts.

I frankly don't see what Matthew or Luke (or Mark 
  or John, for that matter) have to say on the matters quoted below have to do 
  with the subject.

Vance

_

RE: Can religious and secular courts exist in the same nation?

[Volokh, Eugene]

I'm inclined to say that this is exactly right.  In fact, the
Court's church property and church government cases suggest that
religious arbitration is the only permissible mode for resolving those
cases that require interpretation of religious doctrine.  And U.S. law
has certainly coexisted for decades, if not longer, with religious
arbitration by Beth Dins, Christian arbitration bodies, and a smaller
number of Islamic arbitration bodies.
 
I was curious, though, about two related questions:  (1)  Does
Jewish, Muslim, or Christian religious law, as interpreted by at least
some prominent arbitral bodies, set up rules that are either
substantively (e.g., men are favored over women in divorce settlements,
or vice versa) or procedurally (e.g., male witnesses are treated as more
credible than female witnesses, or religiously orthodox witnesses are
treated as more credible than apostate witnesses) discriminatory based
on sex, religion, or ethnicity?  (2)  Is there a generally applicable
principle of arbitration law (both religious and secular) that declares
arbitration awards to be against public policy if they are based on
similarly discriminatory rules?
 
It may well be that we shouldn't have such a generally applicable
principle of arbitration law, because parties should be free to waive
their nondiscrimination rights, at least in certain kinds of contexts.
But if there such a generally applicable principle, and some religious
arbitral decisions do indeed tend to involve the application of
discriminatory rules, then presumably those decisions would be
unenforceable unless some religious exemption is granted from the
arbitration law principle.
 
Eugene
 
Vance Koven writes:
 

We've discussed this a bit on the list before, but I don't see
why in principle religious courts should not be treated pretty much as
commercial arbitration is: as a consensual alternative to the state
legal system (with enforcement permissible through the national courts
where required). In all such cases, the national legal system provides
an umbrella of protections, including among other things the necessity
for consent and honesty in obtaining the agreement by which the parties
submit to the alternative jurisdiction. 

It should not be an objection in most instances that the
substantive rights of the parties differ from the norms of the secular
courts. There are very few rights, even constitutional ones, the
exercise of which in particular circumstances cannot be waived. For
example, people waive their free speech rights in private contexts all
the time (think of non-disparagement clauses and even confidentiality
agreements, including those attached to litigation settlement
agreements); they waive statutory rights such as nondiscrimination
rights and antitrust rights; and so on. Some things cannot be waived,
such as one's right to be free as opposed to enslaved, but of course
this is understood to be a matter of the perpetuity of the
arrangement--any employment agreement restricts one's freedom of action
to an extent--and the mechanism for enforcement (prohibition of contrary
employment rather than specific performance). One also is restricted in
waiving rights of third parties (e.g. one's children), which might
create some issues under religious law. Still, the general principle
ought to be that as to the consenting party an agreement to refer most
matters to religious courts ought to be upheld and enforced by the
secular courts.

I frankly don't see what Matthew or Luke (or Mark or John, for
that matter) have to say on the matters quoted below have to do with the
subject.

Vance


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Re: Can religious and secular courts exist in the same nation?

[Steven Jamar]

some things are out of bounds -- divorce for example -- but it seems short
of that, most things could be handled as analogous to arbitration,
mediation, or negotiated settlement, i.e., contractual.







-- 
Prof. Steven Jamar
Howard University School of Law
Associate Director, Institute of Intellectual Property and Social Justice
(IIPSJ) Inc.
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Re: Can religious and secular courts exist in the same nation?

[Vance R. Koven]

We've discussed this a bit on the list before, but I don't see why in
principle religious courts should not be treated pretty much as commercial
arbitration is: as a consensual alternative to the state legal system (with
enforcement permissible through the national courts where required). In all
such cases, the national legal system provides an umbrella of protections,
including among other things the necessity for consent and honesty in
obtaining the agreement by which the parties submit to the alternative
jurisdiction.

It should not be an objection in most instances that the substantive rights
of the parties differ from the norms of the secular courts. There are very
few rights, even constitutional ones, the exercise of which in particular
circumstances cannot be waived. For example, people waive their free speech
rights in private contexts all the time (think of non-disparagement clauses
and even confidentiality agreements, including those attached to litigation
settlement agreements); they waive statutory rights such as
nondiscrimination rights and antitrust rights; and so on. Some things cannot
be waived, such as one's right to be free as opposed to enslaved, but of
course this is understood to be a matter of the perpetuity of the
arrangement--any employment agreement restricts one's freedom of action to
an extent--and the mechanism for enforcement (prohibition of contrary
employment rather than specific performance). One also is restricted in
waiving rights of third parties (e.g. one's children), which might create
some issues under religious law. Still, the general principle ought to be
that as to the consenting party an agreement to refer most matters to
religious courts ought to be upheld and enforced by the secular courts.

I frankly don't see what Matthew or Luke (or Mark or John, for that matter)
have to say on the matters quoted below have to do with the subject.

Vance

On Wed, Nov 19, 2008 at 9:37 AM, JOHN LOFTON <[EMAIL PROTECTED]> wrote:

> Can religious & secular courts exist in the same nation? Excellent question
> the answer to which is:
>
>  Matthew 6:24
> 24 No man can serve two masters: for either he will hate the one, and
> love the other; or else he will hold to the one, and despise the other. Ye
> cannot serve God and mammon.
> (KJV)
>
> Luke 11:17
> 17 But he, knowing their thoughts, said unto them, Every kingdom
> divided against itself is brought to desolation; and a house divided against
> a house falleth.
> (KJV)
>
>
>
>
>
>
>
>
>  John Lofton, Editor, TheAmericanView.com
> Recovering Republican
>
> "Accursed is that peace of which revolt from God is the bond, and blessed
> are those contentions by which it is necessary to maintain the kingdom of
> Christ." -- John Calvin.
>
>
> -Original Message-
> From: [EMAIL PROTECTED]
> To: Religionlaw@lists.ucla.edu
> Sent: Wed, 19 Nov 2008 8:54 am
> Subject: Can religious and secular courts exist in the same nation?
>
>  An interesting piece in today's *NY Times*.
>
> http://www.nytimes.com/2008/11/19/world/europe/19shariah.html?
>
> Bobby
>
> Robert Justin Lipkin
> Distinguished Professor of Law
> Widener University School of Law
> Delaware
> *
> *Ratio Juris, Contributor:  http://ratiojuris.blogspot.com/*
> Essentially Contested America, Editor-In-Chief
> http://www.essentiallycontestedamerica.org/*
>
>
>
>  --
> Get the Moviefone 
> Toolbar.
> Showtimes, theaters, movie news & more!
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>
> 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.
>
>
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> 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
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> wrongly) forward the messages to others.
>



-- 
Vance R. Koven
Boston, MA USA
[EMAIL PROTECTED]
___

Re: Can religious and secular courts exist in the same nation?

[JOHN LOFTON]

Can religious & secular courts exist in the same nation? Excellent question the 
answer to which is:


Matthew 6:24

24 No man can serve two masters: for either he will hate the one, and love 
the other; or else he will hold to the one, and despise the other. Ye cannot 
serve God and mammon.

(KJV)?

?

Luke 11:17

17 But he, knowing their thoughts, said unto them, Every kingdom divided 
against itself is brought to desolation; and a house divided against a house 
falleth.

(KJV)

?










?John Lofton, Editor, TheAmericanView.com
Recovering Republican

"Accursed is that peace of which revolt from God is the bond, and blessed are 
those contentions by which it is necessary to maintain the kingdom of Christ." 
-- John Calvin.


-Original Message-
From: [EMAIL PROTECTED]
To: Religionlaw@lists.ucla.edu
Sent: Wed, 19 Nov 2008 8:54 am
Subject: Can religious and secular courts exist in the same nation?



An interesting piece in today's NY Times.

?

http://www.nytimes.com/2008/11/19/world/europe/19shariah.html?

?

Bobby
??
Robert Justin Lipkin
Distinguished Professor of Law
Widener University School of Law
Delaware

Ratio Juris, Contributor:? http://ratiojuris.blogspot.com/
Essentially Contested America,?Editor-In-Chief 
http://www.essentiallycontestedamerica.org/Ratio Juris, Contributor:? 
http://ratiojuris.blogspot.com/
Essentially Contested America,?Editor-In-Chief 
http://www.essentiallycontestedamerica.org/




Get the Moviefone Toolbar. Showtimes, theaters, movie news & more!



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