(1) I take it that the argument isn’t really that courts
shouldn’t “enforce religiously motivated obligations.” Presumably no court
would or should scrutinize the motivations for a person’s obligation, and then
refuse to enforce the obligation because it stems from the person’s religious
beliefs.
(2) The reason the Court has given for refusing to determine
religious law is that such determinations would involve “entanglement in
questions of religious doctrine, polity, and practice.” Jones v. Wolf. That
reason does not apply when courts apply neutral principles of arbitration law
to simply enforce an arbitral decisions – enforcement that does not require
courts to themselves resolve any questions of religious doctrine.
In fact, Jones expressly endorsed one particular form of binding religious
arbitration as one of the best ways of resolving religious disputes over
property. “[T]he neutral-principles analysis shares the peculiar genius of
private-law systems in general—flexibility in ordering private rights and
obligations to reflect the intentions of the parties. Through appropriate
reversionary clauses and trust provisions, religious societies can specify what
is to happen to church property in the event of a particular contingency, or
what religious body will determine the ownership in the event of a schism or
doctrinal controversy. In this manner, a religious organization can ensure
that a dispute over the ownership of church property will be resolved in accord
with the desires of the members.” (Emphasis added.) And the Court was not
just discussing religious organizations’ decisionmaking that is then enforced
through moral suasion or the threat of excommunication or shunning. The Court
was clearly envisioning secular courts enforcing the decisions of the religious
bodies specified in the contract, will, or deed.
(3) As to church autonomy, we do not strip churches of access to government
power when it comes to protecting their property against crimes, or torts. I
take it that even Marci doesn’t think it’s an invasion of church autonomy to
allow churches to take secular contracts to secular court.
Why can’t a church – or a religious individual – ask a court to enforce the
following contract: “A promises B to do task C. In the event a dispute arises
under this contract, A agrees to pay B whatever amount, if any, it is ordered
to pay by arbitral organization D.” (I take it B would usually have a
corresponding promise to A as well.) After all, it would generally be
enforceable if D is a secular entity applying secular rules; what’s wrong with
its being a religious entity applying religious rules?
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
Sent: Thursday, November 11, 2010 1:03 PM
To: religionlaw@lists.ucla.edu
Subject: Re: TRO against Oklahoma "no use of Sharia Law"
By refusing to use the civil courts to enforce religion-based contracts, we are
not denying "religious people" access to civil enforcement, but rather denying
access only to religious contracts that effect religious law. I think it is
quite clear in the Establishment cases that it is inappropriate for the courts
to determine religious law; that is easy. Why then would it be all right for
them to enforce
religiously motivated obligations? I have not heard a good reason why a
dual-track enforcement scheme is not the better approach, with religious courts
enforcing religious contracts (assuming enforcement does not violate the law,
e.g., no cutting off hands or genitally mutilating girls) and civil courts
enforcing contracts that do not require an interpretation of religious law, or
an interference in the religious organization's universe/world.
For those who believe that so-called "church autonomy" is a positive value, I
cannot see how civil enfocement of religious contracts can be a good thing.
Marci
_______________________________________________
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.
