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
> 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
>
>
>
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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