Let me deal in this post with Eric's query about the entanglement
issues raised by contracts that call for judges to appoint Muslim arbitrators.
I think the matter is complex, and involves an interaction between First
Amendment no-entanglement doctrine and First Amendment no-discrimination
doctrine. But since I'm more familiar with disputes about who is a Christian
(or who is a Jew) than about who is a Muslim, let me discuss this in the
context of a hypothetical contract that calls on courts to appoint "arbitrators
who are Christian"; and let me refer specifically to what I understand is a
dispute among Christians about whether Mormons are Christian. Let me also
assume that we have a typical plaintiff vs. defendant lawsuit in which an
impasse, or unenforceability, is favorable to the defendant.
I agree that if the court chooses arbitrators from among those
submitted by parties, and both parties submit only arbitrators who both parties
agree are Christian, there would probably be no entanglement problem. But say
that the plaintiff proposes a Mormon, and the defendant objects on the grounds
that the Mormon isn't a Christian. The court can't decide whether the Mormon
is a Christian. What happens then?
1. One possibility is that the court will say the
appoint-only-Christian-arbitrators provision is unenforceable, and the court
will therefore select arbitrators without regard to their Christianity. I
assume this means that such provisions will become generally unenforceable, so
long as the plaintiff wants to force such a decision by proposing a Mormon (or
a similarly contested person that it suspects the defendant will challenge).
The parties could still ensure arbitration only by Christians, just by
providing only Christian names to the court (which won't be a problem in my
view), so long as that's what the parties continue to want to do. But this
would be because of each party's independent choice, not because of enforcement
of the "arbitrators who are Christian" provision.
2. Another possibility is that the court will say the case can't
proceed. This means the defendant will de facto win, because an impasse is in
its favor. And this in turn means that plaintiffs will have a strong incentive
*not* to propose Mormon arbitrators. The "arbitrators who are Christian"
provision will thus in effect become an "arbitrators who are Christian and not
Mormon" provision, because of the court's willingness to declare an impasse
when there's a dispute. That strikes me as improper, both on
no-religious-decisions grounds, and on no-discrimination grounds. Am I
mistaken?
3. Yet I take it that a court would rarely allow there to be a total
impasse that keeps a case from proceeding because of one party's objection to
an arbitrator. What might the court do to avoid the impasse? Well, it might
reject the plaintiff's proposal of a Mormon arbitrator, or make it clear to the
plaintiff that the court will retaliate in various ways -- either through
formal sanctions or through more informal attempts to punish perceived
obstructionism -- if the plaintiff continues with the proposal. Yet this would
mean that the court is discriminating against Mormon arbitrators, even though
the contract could plausibly be read to allow them.
4. Alternatively, the court might reject the defendant's objections to
the Mormon, or make it clear to the defendant that the court will retaliate
against it if the objections persist. Yet this would mean that the court is
effectively deciding that Mormons are Christians, which violates the
no-religious-decisions principle.
What course of action, or justification for one of these courses of
action, am I missing here?
Eugene
Eric Rassbach writes:
> I had taken Eugene to be saying that even in the absence of a dispute over
> whether a particular arbitrator was Muslim or not, a civil court could not,
> acting
> as an arbitral authority, carry out an arbitral provision appointing a Muslim
> as an
> arbitrator because that would violate the rule against entanglement. Leaving
> to
> one side Eugene's separate objection about discrimination, it sounds like from
> the response below that we are actually in agreement on the following points
> re
> entanglement: (1) if there is a dispute over whether a particular arbitrator
> is
> Muslim or not, then the court cannot act (i.e. it cannot appoint an arbitrator
> over one party's objection) because that would force it to decide a religious
> question; and (2) if there is no dispute over whether a particular arbitrator
> is a
> Muslim, the civil court may enforce the Muslim arbitrator provision because it
> does not have to decide a religious question to do so. Please correct me if I
> am
> wrong about this.
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