I think that the entanglement question would most clearly arise when
the dispute is whether someone really knows Sharia as Islamic law (rather than
just as Saudi law), and the heart of the disagreement really goes to how he
interprets Islamic law.
I think there would also be an entanglement question if the court
appoints an arbitrator that one party thinks is Muslim and the other doesn't.
Nor could that be resolved, I think, by simply saying that the court should
just reject any arbitrator to whom the party objects on the grounds of the
arbitrator's supposed non-Muslim-ness, unless the contract so provides.
The clearer First Amendment problem, I think, stems simply from the
court's selecting an arbitrator based on religion, even when the contract so
demands. But that is a violation of the nondiscrimination doctrine of First
Amendment law, not the nonentanglement doctrine.
Also, in the example that Eric points to -- where a court considers
appointing an Ahmadi as an arbitrator, one party objects by saying "he's not
really Muslim," and the court therefore rejects the Ahmadi -- the religious
discrimination strikes me as particularly serious, because there isn't even the
justification that the judge is just enforcing the contract in appointing a
non-Ahmadi. The contract just says that the arbitrator must be Muslim; a
judge's rejecting someone because some people don't think he's really Muslim
strikes me as religious discrimination by the court, and not just in
implementing the clear terms of the contract.
Eugene
> -----Original Message-----
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Eric Rassbach
> Sent: Monday, January 03, 2011 1:54 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: May American court appoint only Muslim arbitrators, pursuant to
> an arbitration agreement?
>
>
> What is the entanglement problem in Eugene's view if the Court is not being
> asked to decide a religious question? If ARAMCO objected to the appointment
> of an Ahmadi arbitrator as non-Muslim then I could see how the Court would
> be unable to resolve the dispute. But appointing a Muslim arbitrator that both
> the parties agree is Muslim means that a court does not have to reach a
> religious question because it has been answered by the parties before the
> Court
> can get started. And since a court can't decide whether an Ahmadi is a Muslim
> or not, or any similar disputed question, it will never appoint a Muslim as an
> arbitrator where the parties disagree about whether he/she is Muslim.
>
> I also don't see how it creates other entanglement problems such as ongoing
> surveillance.
>
> For the same reasons I don't see a problem where a court enforces a
> corporation sole's documents. A court does not get entangled in a religious
> question by deciding that Mr. X is the Catholic Bishop of Utopia.
>
>
> ________________________________________
> 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 4:19 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: May American court appoint only Muslim arbitrators,
> pursuant
> to an arbitration agreement?
>
> My view is that being a Muslim is not a limitation on being an
> arbitrator that a court may properly enforce, given the First Amendment and
> the Equal Protection Clause.
>
> I don't think there's any constitutional difficulty with a
> court's
> deciding whether someone adequately knows Sharia as it is understood in Saudi
> Arabia, though I imagine a court would have a pretty difficult time resolving
> such matters; it would make much more sense to leave the appointment of
> such an arbitrator to a private entity (or to a Saudi government entity).
>
> There might be a constitutional difficulty - of the
> entanglement /
> religious decisions variety - with a court's deciding whether someone
> adequately knows Sharia as Islamic law as such, for instance if there's a
> dispute
> about whether a person's view on a Sharia question shows ignorance or just
> shows disagreement about theological matters.
>
> Eugene
>
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Steven Jamar
> Sent: Monday, January 03, 2011 12:38 PM
> To: Law & Religion issues for Law Academics
> Subject: Re: May American court appoint only Muslim arbitrators, pursuant to
> an arbitration agreement?
>
> Eugene, do you contend that knowledge of the Sharia is not a valid limitation
> or
> only that being a Muslim is not?
>
>
> On Jan 3, 2011, at 2:32 PM, Douglas Laycock wrote:
>
>
> must know the Shari'a, commercial laws and the customs in force in the
> Kingdom
>
> --
> Prof. Steven D. Jamar vox: 202-806-8017
> Associate Director, Institute for Intellectual Property and Social Justice
> http://iipsj.org
> Howard University School of Law fax: 202-806-8567
> http://iipsj.com/SDJ/
>
>
> "Love the pitcher less and the water more."
>
>
>
> Sufi Saying
>
>
>
>
> _______________________________________________
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