My sense is that the prison and military contexts aren't just justified
on the grounds of the governments "attend[ing] to the specific needs of an
identifiable group" -- that would equally apply to parochial school funding
(even of a sort that goes far beyond what was allowed by Zelman and Mitchell v.
Helms), the law struck down in Thornton v. Caldor, the law struck down in
Kiryas Joel, and more.
Rather, the premise, as I understand it, is that in the few
intrusive-control contexts in which the government segregates people from
normal religious life, and limits their ability to access their own religious
institutions, the government may itself provide religious services (even though
it would normally be broadly barred from that, by a wide range of First
Amendment doctrines). In the court system, I don't see any similar limitation
on people's ability to get religious dispute resolution: People remain free to
have their disputes arbitrated by religious institutions, and to have those
arbitrations be enforced, so long as they simply provide in their contracts
that the arbitrators are to be chosen by some private entity (or even some
foreign government entity). So I see no special justification for relaxing the
normal First Amendment non-discrimination and no-religious-decisions rules
here, nor any substantial similarity to the highly unusual (as First Amendme!
nt law goes) contexts of prisons and the military.
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 4:09 PM
> To: Law & Religion issues for Law Academics
> Cc: Law & Religion issues for Law Academics
> Subject: Re: May American court appoint only Muslim arbitrators, pursuant to
> an arbitration agreement?
>
> To say that military and prison chaplains get special treatment under First
> Amendment law isn't to explain why that should be so or why it should be
> restricted to that context. With chaplains, the govt appoints people based on
> specific religious qualifications to attend to the specific needs of an
> identifiable
> group. Under the hypo we're dealing with here it seems to me that's all the
> court is being asked to do. If it isn't objectionable in one context, why is
> it in
> another?
>
> On Jan 3, 2011, at 1:31 PM, "Volokh, Eugene" <vol...@law.ucla.edu> wrote:
>
> > One difficulty is that we don't have much law on what constitutes a BFOQ
> where religion is concerned. But I think military (and prison) chaplaincy
> cases
> are generally treated very differently under the First Amendment than other
> kinds of cases, as to a wide range of First Amendment doctrines -- the ban on
> religious discrimination, the ban on religious decisions by the government,
> the
> ban on government funding of religious practice, and more. So I'm not sure
> the
> BFOQ analysis would be that helpful here, or that those cases are
> generalizable
> outside the military/prison context.
> >
> > 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 3:28 PM
> >> To: Law & Religion issues for Law Academics
> >> Cc: Law & Religion issues for Law Academics
> >> Subject: Re: May American court appoint only Muslim arbitrators, pursuant
> to
> >> an arbitration agreement?
> >>
> >>
> >> Is someone applying for a military chaplaincy required or expected to have
> >> some religious qualification or membership in a religious order? Could a
> >> nonbeliever who nonetheless has an extensive academic knowledge of
> religion
> >> sue for discrimination if she's denied such employment?
> >>
> >> On Jan 3, 2011, at 1:11 PM, "Volokh, Eugene" <vol...@law.ucla.edu>
> wrote:
> >>
> >>> 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
> >>>>> 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.
> >>>>>>
> >>>>>> _______________________________________________
> >>>>>> 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.
> >>>>>
> >>>>> 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
> >>>>> 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.
> >>>>>
> >>>>>
> >>>>>
> >>>>> _______________________________________________
> >>>>> 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.
> >>>>>
> >>>>>
> >>>>>
> >>>>
> >>>>
> >>>>
> >>>> _________________________________
> >>>>
> >>>> 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
> >>>> 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.
> >>>>
> >>>
> >>> _______________________________________________
> >>> 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.
> >>>
> >>>
> >> _______________________________________________
> >> 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
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> the
> >> messages to others.
> >>
> >
> > _______________________________________________
> > 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
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> >
> >
> _______________________________________________
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>
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