I'm not sure whether BFOQ doctrine as to religion helps us much as to
the First Amendment analysis. That private entities aren't barred from
discriminating based on religion in some contexts doesn't necessarily tell us,
I think, that the government has an equally free hand.
Eugene
> -----Original Message-----
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Steve Sanders
> Sent: Monday, January 03, 2011 12:53 PM
> To: religionlaw@lists.ucla.edu
> Subject: RE: May American court appoint only Muslim arbitrators, pursuant to
> an arbitration agreement?
>
> I recognize this isn't an employment discrimination case, but is the
> constitutional problem eased if the religion of the arbitrators could
> be considered a bona fide occupational qualification? We recognize
> constitutional exceptions for those, right?
>
> Per Marc's question, presuming the contract was otherwise valid under
> state law, it's not clear to me that merely appointing arbitrators who
> are qualified according to the terms of a contract amounts to a court
> "applying sharia law." Evidently it's the arbitration panel, not the
> court, that is called on to apply sharia law in the course of
> interpreting the contract.
>
> Generally, the whole point of arbitration is to avoid the courts as
> much as possible through a private, extrajudicial mechanism for
> settling disputes. Parties typically agree on arbitrators without the
> involvement of a court. Thus, it seems to me that if an arbitration
> agreement is properly drafted, the constitutional issue of a court's
> discriminatory appointment process shouldn't arise as a matter of
> design.
>
> Steve Sanders
>
> Quoting Marc Stern <ste...@ajc.org>:
>
> > But would this agreement be enforceable in Oklahoma ,with its ban on courts
> > applying sharia law?
> >
> > Marc D. Stern
> > Associate General Counsel
> > 165 East 56th Street
> > NY NY 10022
> >
> > ste...@ajc.org
> > 212.891.1480
> > 646.287.2606 (cell)
> >
> >
> >
> >
> >
> >
> > -----Original Message-----
> > From: religionlaw-boun...@lists.ucla.edu
> > [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock
> > Sent: Monday, January 03, 2011 02:33
> > To: Law & Religion issues for Law Academics; Eric Rassbach
> > Subject: Re: May American court appoint only Muslim arbitrators,pursuant to
> > an arbitration agreement?
> >
> > The court could apparently comply with the contract, and avoid all
> > entanglement iwth religion, by appointing three Saudis. Does anybody see a
> > problem with that?
> >
> > I assume that all Saudis are Muslim, or at least that the percentage is so
> > high that the odds of appointing a non-Muslim Saudi are negligible.
> >
> >
> >
> > On Mon, 3 Jan 2011 12:34:05 -0500
> > Eric Rassbach <erassb...@becketfund.org> wrote:
> >>
> >> Here is the relevant provision (in translation) from the case-link Eugene
> > sent around:
> >>
> >> The Arbitrator must be a Saudi national or a Moslem foreigner chosen
> > amongst the members of the liberal professions or other persons. He may
> also
> > be chosen amongst state officials after agreement of the authority on which
> > he depends. Should there be several arbitrators, the Chairman must know the
> > Shari'a, commercial laws and the customs in force in the Kingdom.
> >>
> >>
> >>
> >>
> >> ________________________________________
> >> From: religionlaw-boun...@lists.ucla.edu
> > [religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
> > [vol...@law.ucla.edu]
> >> Sent: Monday, January 03, 2011 11:46 AM
> >> To: Law & Religion issues for Law Academics
> >> Subject: RE: May American court appoint only Muslim arbitrators, pursuant
> > to an arbitration agreement?
> >>
> >> I agree with Nate's neutral principles / entanglement
> > argument. But I wonder whether one can so easily dismiss the equal
> > protection argument from the enforcement of the contract. The court, after
> > all, would have to decide who gets to perform an important and lucrative
> > task based on that person's religion, whether or not it's merely enforcing a
> > private contract. Of course the judge won't be acting based on religious
> > animus, but he will be deliberately treating people differently based on
> > religion.
> >>
> >> Also, is the Batson / J.E.B. line of cases relevant here,
> > assuming that it can be expanded to peremptories based on religion and not
> > just race or sex? (As I recall, most lower court cases that have considered
> > the issue have indeed expanded Batson and J.E.B. to religion.) If a court
> > may not allow a private party to challenge a juror based on religion, even
> > when the judge wouldn't himself be discriminating based on religion, may a
> > court allow private party agreement to provide for selection - by the judge
> > - of an arbitrator based on religion?
> >>
> >> Eugene
> >>
> >> From: religionlaw-boun...@lists.ucla.edu
> > [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Nathan Oman
> >> Sent: Monday, January 03, 2011 7:28 AM
> >> To: Law & Religion issues for Law Academics
> >> Subject: 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<mailto: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
> > Aramco<https://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
> > appoi
> > nted 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<mailto:Religionlaw@lists.ucla.edu>
> >> To subscribe, unsubscribe, change options, or get password, see
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> >>
> >> Please note that messages sent to this large list cannot be viewed as
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> >>
> >> _______________________________________________
> >> 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
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> >
> > Douglas Laycock
> > Armistead M. Dobie Professor of Law
> > University of Virginia Law School
> > 580 Massie Road
> > Charlottesville, VA 22903
> > 434-243-8546
> > _______________________________________________
> > To post, send message to Religionlaw@lists.ucla.edu
> > To subscribe, unsubscribe, change options, or get password, see
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> >
> > Please note that messages sent to this large list cannot be viewed as
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> >
> >
> >
> > _______________________________________________
> > 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
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> >
> >
> >
>
>
>
> _________________________________
>
> Steve Sanders
> E-mail: steve...@umich.edu
> Web: http://www.stevesanders.net
> _______________________________________________
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
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>
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