RE: TRO against Oklahoma no use of Sharia Law
Interesting quote re the Oklahoma ban and religious arbitration: http://articles.latimes.com/2010/nov/10/opinion/la-oe-helfand-oklahoma-20101110 Rex Duncan, a Republican state representative in Oklahoma and a sponsor of the amendment, has explained that part of its purpose is to ban religious forms of arbitration: Parties would come to the courts and say we want to be bound by Islamic law and then ask the courts to enforce those agreements. That is a backdoor way to get Sharia law into courts. There ... have been some efforts, I believe, to explore bringing that to America, and it's dangerous. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Wednesday, November 10, 2010 2:09 PM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law (1) Yes, there's a 1982 case finding no standing with regard to that Arkansas law. (2) The Oklahoma law is indeed awful, not just because of the prohibition on the use of Sharia law but chiefly because of the prohibition on the use of foreign law. See http://volokh.com/2010/03/19/oklahoma-house-of-representatives-proposes-ban-on-use-of-foreign-law-in-oklahoma-courts/, where I describe the various contract, tort, and family law controversies that would be completely screwed up by this amendment. (I don't think there'll be a problem with enforcing arbitral awards, but there would be a problem in the other contexts.) -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Eric Rassbach Sent: Wednesday, November 10, 2010 10:42 AM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law One interesting parallel are blasphemy laws still on the books in several states but unenforceable under Torcaso v. Watkins. For example, the Arkansas Constitution disqualifies atheists from serving in certain public capacities: http://www.becketfund.org/index.php/article/958.html Presumably these provisions create harms identical to the ones created by the OK provision, and suffer from the same standing/ripeness issues that the Oklahoma law does, precisely because they are so clearly unenforceable. However, one interesting question that arises from the text of the Oklahoma provision (set out below) is that it says that Oklahoma state courts shall not consider international or Sharia Law. Would the word consider prevent an Oklahoma state court from enforcing an arbitral award conducted in accordance with Sharia? What about an arbitration conducted in accordance with English law? (Many international agreements provide for arbitration under English law.) What about interpreting a contract with a choice of law provision specifying English, Canadian, or French law? The Courts provided for in subsection A of this section, when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Oklahoma Constitution/wiki/index.php/Oklahoma_Constitution, the United States Code, federal regulations promulgated pursuant thereto, established common law, the Oklahoma Statutes and rules promulgated pursuant thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions. The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international or Sharia Law. The provisions of this subsection shall apply to all cases before the respective courts including, but not limited to, cases of first impression. From: religionlaw-boun...@lists.ucla.edu [religionlaw- boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Tuesday, November 09, 2010 5:41 PM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law Perhaps I'm missing something here, but I thought that Flast was limited to taxpayer lawsuits based on the spending of money pursuant to a legislative authorization. See especially Hein, but also Valley Forge. Does it really stand for the broader proposition that any citizen of a state has standing to sue based on the very existence of a statute that endorses or disapproves of religion? I would have thought not, but I'd love to hear what others have to say - again, about what standing law currently is, not what it should be. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Tuesday, November 09, 2010 2:32 PM To: Law Religion issues for Law Academics Subject: Re: TRO against Oklahoma no use of Sharia Law
RE: TRO against Oklahoma no use of Sharia Law
The quoted language may mean no more than that parties can't agree to bound by religious law and then ask a court to determine (in violation of the First Am.) what that religious law requires. Mark Scarberry Pepperdine -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Eric Rassbach Sent: Thursday, November 11, 2010 7:31 AM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law Interesting quote re the Oklahoma ban and religious arbitration: http://articles.latimes.com/2010/nov/10/opinion/la-oe-helfand-oklahoma-20101110 Rex Duncan, a Republican state representative in Oklahoma and a sponsor of the amendment, has explained that part of its purpose is to ban religious forms of arbitration: Parties would come to the courts and say we want to be bound by Islamic law and then ask the courts to enforce those agreements. That is a backdoor way to get Sharia law into courts. There ... have been some efforts, I believe, to explore bringing that to America, and it's dangerous. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Wednesday, November 10, 2010 2:09 PM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law (1) Yes, there's a 1982 case finding no standing with regard to that Arkansas law. (2) The Oklahoma law is indeed awful, not just because of the prohibition on the use of Sharia law but chiefly because of the prohibition on the use of foreign law. See http://volokh.com/2010/03/19/oklahoma-house-of-representatives-proposes-ban-on-use-of-foreign-law-in-oklahoma-courts/, where I describe the various contract, tort, and family law controversies that would be completely screwed up by this amendment. (I don't think there'll be a problem with enforcing arbitral awards, but there would be a problem in the other contexts.) -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Eric Rassbach Sent: Wednesday, November 10, 2010 10:42 AM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law One interesting parallel are blasphemy laws still on the books in several states but unenforceable under Torcaso v. Watkins. For example, the Arkansas Constitution disqualifies atheists from serving in certain public capacities: http://www.becketfund.org/index.php/article/958.html Presumably these provisions create harms identical to the ones created by the OK provision, and suffer from the same standing/ripeness issues that the Oklahoma law does, precisely because they are so clearly unenforceable. However, one interesting question that arises from the text of the Oklahoma provision (set out below) is that it says that Oklahoma state courts shall not consider international or Sharia Law. Would the word consider prevent an Oklahoma state court from enforcing an arbitral award conducted in accordance with Sharia? What about an arbitration conducted in accordance with English law? (Many international agreements provide for arbitration under English law.) What about interpreting a contract with a choice of law provision specifying English, Canadian, or French law? The Courts provided for in subsection A of this section, when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Oklahoma Constitution/wiki/index.php/Oklahoma_Constitution, the United States Code, federal regulations promulgated pursuant thereto, established common law, the Oklahoma Statutes and rules promulgated pursuant thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions. The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international or Sharia Law. The provisions of this subsection shall apply to all cases before the respective courts including, but not limited to, cases of first impression. From: religionlaw-boun...@lists.ucla.edu [religionlaw- boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Tuesday, November 09, 2010 5:41 PM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law Perhaps I'm missing something here, but I thought that Flast was limited to taxpayer lawsuits based on the spending of money pursuant to a legislative authorization. See especially Hein, but also Valley Forge. Does it really stand for the broader proposition that any citizen of a state has standing to sue
RE: TRO against Oklahoma no use of Sharia Law
In the video Prof. Helfand is apparently quoting, Rep. Duncan refers to religious arbitration immediately before he says the quoted language: http://prawfsblawg.blogs.com/prawfsblawg/2010/11/religious-arbitration-and-the-new-multiculturalism.html From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark [mark.scarbe...@pepperdine.edu] Sent: Thursday, November 11, 2010 11:06 AM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law The quoted language may mean no more than that parties can't agree to bound by religious law and then ask a court to determine (in violation of the First Am.) what that religious law requires. Mark Scarberry Pepperdine -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Eric Rassbach Sent: Thursday, November 11, 2010 7:31 AM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law Interesting quote re the Oklahoma ban and religious arbitration: http://articles.latimes.com/2010/nov/10/opinion/la-oe-helfand-oklahoma-20101110 Rex Duncan, a Republican state representative in Oklahoma and a sponsor of the amendment, has explained that part of its purpose is to ban religious forms of arbitration: Parties would come to the courts and say we want to be bound by Islamic law and then ask the courts to enforce those agreements. That is a backdoor way to get Sharia law into courts. There ... have been some efforts, I believe, to explore bringing that to America, and it's dangerous. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Wednesday, November 10, 2010 2:09 PM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law (1) Yes, there's a 1982 case finding no standing with regard to that Arkansas law. (2) The Oklahoma law is indeed awful, not just because of the prohibition on the use of Sharia law but chiefly because of the prohibition on the use of foreign law. See http://volokh.com/2010/03/19/oklahoma-house-of-representatives-proposes-ban-on-use-of-foreign-law-in-oklahoma-courts/, where I describe the various contract, tort, and family law controversies that would be completely screwed up by this amendment. (I don't think there'll be a problem with enforcing arbitral awards, but there would be a problem in the other contexts.) -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Eric Rassbach Sent: Wednesday, November 10, 2010 10:42 AM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law One interesting parallel are blasphemy laws still on the books in several states but unenforceable under Torcaso v. Watkins. For example, the Arkansas Constitution disqualifies atheists from serving in certain public capacities: http://www.becketfund.org/index.php/article/958.html Presumably these provisions create harms identical to the ones created by the OK provision, and suffer from the same standing/ripeness issues that the Oklahoma law does, precisely because they are so clearly unenforceable. However, one interesting question that arises from the text of the Oklahoma provision (set out below) is that it says that Oklahoma state courts shall not consider international or Sharia Law. Would the word consider prevent an Oklahoma state court from enforcing an arbitral award conducted in accordance with Sharia? What about an arbitration conducted in accordance with English law? (Many international agreements provide for arbitration under English law.) What about interpreting a contract with a choice of law provision specifying English, Canadian, or French law? The Courts provided for in subsection A of this section, when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Oklahoma Constitution/wiki/index.php/Oklahoma_Constitution, the United States Code, federal regulations promulgated pursuant thereto, established common law, the Oklahoma Statutes and rules promulgated pursuant thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions. The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international or Sharia Law. The provisions of this subsection shall apply to all cases before the respective courts including, but not limited to, cases of first impression. From: religionlaw-boun
RE: TRO against Oklahoma no use of Sharia Law
But would the amendment actually apply to judicial enforcement of religious arbitrations -- or arbitrations under the law of foreign countries -- so long as the court itself was only applying secular American law and not religious or foreign law? Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Eric Rassbach Sent: Thursday, November 11, 2010 9:05 AM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law In the video Prof. Helfand is apparently quoting, Rep. Duncan refers to religious arbitration immediately before he says the quoted language: http://prawfsblawg.blogs.com/prawfsblawg/2010/11/religious-arbitration- and-the-new-multiculturalism.html ___ 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.
RE: TRO against Oklahoma no use of Sharia Law
Wouldn't that depend on whether consider and look to mean something broader than apply? And if one party challenged enforcement of the arbitration clause as unconscionable or involuntary based on the use of religious law, would deciding that question require a court to consider religious law? From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Thursday, November 11, 2010 12:14 PM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law But would the amendment actually apply to judicial enforcement of religious arbitrations -- or arbitrations under the law of foreign countries -- so long as the court itself was only applying secular American law and not religious or foreign law? Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Eric Rassbach Sent: Thursday, November 11, 2010 9:05 AM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law In the video Prof. Helfand is apparently quoting, Rep. Duncan refers to religious arbitration immediately before he says the quoted language: http://prawfsblawg.blogs.com/prawfsblawg/2010/11/religious-arbitration- and-the-new-multiculturalism.html ___ 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.
RE: TRO against Oklahoma no use of Sharia Law
Eric Rassbach writes: Wouldn't that depend on whether consider and look to mean something broader than apply? My sense is that one advantage of arbitration is that courts generally need not consider or look to the underlying law. As I understand it, that's what happens in intrachurch disputes, when courts defer to the decision of the authorized church tribunal -- not a traditional arbitration, I realize, but close to it. And if one party challenged enforcement of the arbitration clause as unconscionable or involuntary based on the use of religious law, would deciding that question require a court to consider religious law? I take it that if the claim required deciding what religious law should actually have been applied, the First Amendment would bar a secular court from resolving the claim. But do you mean that it would have consider religious law to decide whether it actually called for (say) the application of sex discriminatory rules? I would think that even there the court wouldn't actually consider the law as such, but just hear testimony -- from instance, from the arbitral tribunal's judges, or from the parties -- about what procedures were actually followed by the tribunal. Or am I missing something? From: religionlaw-boun...@lists.ucla.edu [religionlaw- boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Thursday, November 11, 2010 12:14 PM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law But would the amendment actually apply to judicial enforcement of religious arbitrations -- or arbitrations under the law of foreign countries -- so long as the court itself was only applying secular American law and not religious or foreign law? Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Eric Rassbach Sent: Thursday, November 11, 2010 9:05 AM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law In the video Prof. Helfand is apparently quoting, Rep. Duncan refers to religious arbitration immediately before he says the quoted language: http://prawfsblawg.blogs.com/prawfsblawg/2010/11/religious-arbitration- and-the-new-multiculturalism.html ___ 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 read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: TRO against Oklahoma no use of Sharia Law
Let's say that an arbitration clause says that the case shall be decided in accordance with Islamic law as determined by the Texas Islamic Court. One party sues in Oklahoma state court. The defendant asks the court to stop the state court proceedings and enforce the arbitration clause. The plaintiff says the arbitration clause is unenforceable because some substantive and procedural aspects of Islamic law as typically determined by the Texas Islamic Court are unconscionable/against public policy. Would the court have to consider or look to Sharia to decide the enforceability question? An analogy might be an adequate alternative review on a forum non conveniens motion; courts have had to consider, for example, whether Saudi courts are adequate alternative fora given the lesser weight given to the testimony of women and non-Muslims. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Thursday, November 11, 2010 1:09 PM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law Eric Rassbach writes: Wouldn't that depend on whether consider and look to mean something broader than apply? My sense is that one advantage of arbitration is that courts generally need not consider or look to the underlying law. As I understand it, that's what happens in intrachurch disputes, when courts defer to the decision of the authorized church tribunal -- not a traditional arbitration, I realize, but close to it. And if one party challenged enforcement of the arbitration clause as unconscionable or involuntary based on the use of religious law, would deciding that question require a court to consider religious law? I take it that if the claim required deciding what religious law should actually have been applied, the First Amendment would bar a secular court from resolving the claim. But do you mean that it would have consider religious law to decide whether it actually called for (say) the application of sex discriminatory rules? I would think that even there the court wouldn't actually consider the law as such, but just hear testimony -- from instance, from the arbitral tribunal's judges, or from the parties -- about what procedures were actually followed by the tribunal. Or am I missing something? From: religionlaw-boun...@lists.ucla.edu [religionlaw- boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Thursday, November 11, 2010 12:14 PM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law But would the amendment actually apply to judicial enforcement of religious arbitrations -- or arbitrations under the law of foreign countries -- so long as the court itself was only applying secular American law and not religious or foreign law? Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Eric Rassbach Sent: Thursday, November 11, 2010 9:05 AM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law In the video Prof. Helfand is apparently quoting, Rep. Duncan refers to religious arbitration immediately before he says the quoted language: http://prawfsblawg.blogs.com/prawfsblawg/2010/11/religious-arbitration- and-the-new-multiculturalism.html ___ 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 read the Web archives; and list members can
Re: TRO against Oklahoma no use of Sharia Law
What are the arguments for enforcing religious arbitration agreements or disputes when religions have their own courts? Marci Sent from my Verizon Wireless BlackBerry -Original Message- From: Eric Rassbach erassb...@becketfund.org Sender: religionlaw-boun...@lists.ucla.edu Date: Thu, 11 Nov 2010 13:49:19 To: Law Religion issues for Law Academicsreligionlaw@lists.ucla.edu Reply-To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Subject: RE: TRO against Oklahoma no use of Sharia Law Let's say that an arbitration clause says that the case shall be decided in accordance with Islamic law as determined by the Texas Islamic Court. One party sues in Oklahoma state court. The defendant asks the court to stop the state court proceedings and enforce the arbitration clause. The plaintiff says the arbitration clause is unenforceable because some substantive and procedural aspects of Islamic law as typically determined by the Texas Islamic Court are unconscionable/against public policy. Would the court have to consider or look to Sharia to decide the enforceability question? An analogy might be an adequate alternative review on a forum non conveniens motion; courts have had to consider, for example, whether Saudi courts are adequate alternative fora given the lesser weight given to the testimony of women and non-Muslims. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Thursday, November 11, 2010 1:09 PM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law Eric Rassbach writes: Wouldn't that depend on whether consider and look to mean something broader than apply? My sense is that one advantage of arbitration is that courts generally need not consider or look to the underlying law. As I understand it, that's what happens in intrachurch disputes, when courts defer to the decision of the authorized church tribunal -- not a traditional arbitration, I realize, but close to it. And if one party challenged enforcement of the arbitration clause as unconscionable or involuntary based on the use of religious law, would deciding that question require a court to consider religious law? I take it that if the claim required deciding what religious law should actually have been applied, the First Amendment would bar a secular court from resolving the claim. But do you mean that it would have consider religious law to decide whether it actually called for (say) the application of sex discriminatory rules? I would think that even there the court wouldn't actually consider the law as such, but just hear testimony -- from instance, from the arbitral tribunal's judges, or from the parties -- about what procedures were actually followed by the tribunal. Or am I missing something? From: religionlaw-boun...@lists.ucla.edu [religionlaw- boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Thursday, November 11, 2010 12:14 PM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law But would the amendment actually apply to judicial enforcement of religious arbitrations -- or arbitrations under the law of foreign countries -- so long as the court itself was only applying secular American law and not religious or foreign law? Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Eric Rassbach Sent: Thursday, November 11, 2010 9:05 AM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law In the video Prof. Helfand is apparently quoting, Rep. Duncan refers to religious arbitration immediately before he says the quoted language: http://prawfsblawg.blogs.com/prawfsblawg/2010/11/religious-arbitration- and-the-new-multiculturalism.html ___ 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
RE: TRO against Oklahoma no use of Sharia Law
That's an excellent question, but wouldn't there be a First Amendment problem here even in the absence of the Oklahoma provision? If the court has to decide what Islamic law really calls for, then that, I think, would involve a secular court impermissible deciding a religious question. On the other hand, if the court simply accepts testimony that the Texas Islamic Court actually devalues the testimony of women witnesses (to take one example of a possible challenge), or for that matter refuses to hear certain kinds of testimony regardless of the witness's sex -- as I understand it, an arbitration may sometimes be set aside on the grounds that an arbitrator simply refused to consider certain evidence -- then I don't think that would violate the no religious decisions principle. The court won't be considering what Islamic law really means, but only what procedures this tribunal is applying. But for the same reason that this is consistent with the First Amendment, wouldn't it also be consistent with the Oklahoma provision (especially if ambiguity in the provision is interpreted to avoid constitutional doubts)? At that point, the court isn't consider[ing] ... Sharia law, but just hearing testimony about which particular procedures this tribunal was usin! g. Eugene Eric Rassbach writes: Let's say that an arbitration clause says that the case shall be decided in accordance with Islamic law as determined by the Texas Islamic Court. One party sues in Oklahoma state court. The defendant asks the court to stop the state court proceedings and enforce the arbitration clause. The plaintiff says the arbitration clause is unenforceable because some substantive and procedural aspects of Islamic law as typically determined by the Texas Islamic Court are unconscionable/against public policy. Would the court have to consider or look to Sharia to decide the enforceability question? An analogy might be an adequate alternative review on a forum non conveniens motion; courts have had to consider, for example, whether Saudi courts are adequate alternative fora given the lesser weight given to the testimony of women and non-Muslims. ___ 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.
Re: TRO against Oklahoma no use of Sharia Law
For many agreements to arbitrate, the Federal Arbitration Act is the argument for enforcement; there is nothing in the FAA that would exempt agreements that provide for a religiously based arbitral forum. For others, analogous state statutes are the argument for enforcement. Michael R. Masinter 3305 College Avenue Professor of Law Fort Lauderdale, FL 33314 Nova Southeastern University 954.262.6151 (voice) masin...@nova.edu954.262.3835 (fax) Quoting hamilto...@aol.com: What are the arguments for enforcing religious arbitration agreements or disputes when religions have their own courts? Marci Sent from my Verizon Wireless BlackBerry -Original Message- From: Eric Rassbach erassb...@becketfund.org Sender: religionlaw-boun...@lists.ucla.edu Date: Thu, 11 Nov 2010 13:49:19 To: Law Religion issues for Law Academicsreligionlaw@lists.ucla.edu Reply-To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Subject: RE: TRO against Oklahoma no use of Sharia Law Let's say that an arbitration clause says that the case shall be decided in accordance with Islamic law as determined by the Texas Islamic Court. One party sues in Oklahoma state court. The defendant asks the court to stop the state court proceedings and enforce the arbitration clause. The plaintiff says the arbitration clause is unenforceable because some substantive and procedural aspects of Islamic law as typically determined by the Texas Islamic Court are unconscionable/against public policy. Would the court have to consider or look to Sharia to decide the enforceability question? An analogy might be an adequate alternative review on a forum non conveniens motion; courts have had to consider, for example, whether Saudi courts are adequate alternative fora given the lesser weight given to the testimony of women and non-Muslims. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Thursday, November 11, 2010 1:09 PM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law Eric Rassbach writes: Wouldn't that depend on whether consider and look to mean something broader than apply? My sense is that one advantage of arbitration is that courts generally need not consider or look to the underlying law. As I understand it, that's what happens in intrachurch disputes, when courts defer to the decision of the authorized church tribunal -- not a traditional arbitration, I realize, but close to it. And if one party challenged enforcement of the arbitration clause as unconscionable or involuntary based on the use of religious law, would deciding that question require a court to consider religious law? I take it that if the claim required deciding what religious law should actually have been applied, the First Amendment would bar a secular court from resolving the claim. But do you mean that it would have consider religious law to decide whether it actually called for (say) the application of sex discriminatory rules? I would think that even there the court wouldn't actually consider the law as such, but just hear testimony -- from instance, from the arbitral tribunal's judges, or from the parties -- about what procedures were actually followed by the tribunal. Or am I missing something? From: religionlaw-boun...@lists.ucla.edu [religionlaw- boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Thursday, November 11, 2010 12:14 PM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law But would the amendment actually apply to judicial enforcement of religious arbitrations -- or arbitrations under the law of foreign countries -- so long as the court itself was only applying secular American law and not religious or foreign law? Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Eric Rassbach Sent: Thursday, November 11, 2010 9:05 AM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law In the video Prof. Helfand is apparently quoting, Rep. Duncan refers to religious arbitration immediately before he says the quoted language: http://prawfsblawg.blogs.com/prawfsblawg/2010/11/religious-arbitration- and-the-new-multiculturalism.html ___ 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
Re: TRO against Oklahoma no use of Sharia Law
I guess my question is not so much how is it possible, but (1) why would we want civil courts to enforce religious agreements? and (2) why would the civil courts be willing to use civil enforcement measures to enforce religious agreements? If a person makes an agreement based on religious principle, why shouldn't they be limited to religious fora and their means of enforcement, whether it is shunning, or excommunication, or having to teach Sunday School. There seems to be an implicit agreement in this discussion that enforcement of religious agreements in civil courts is a positive policy decision. I think it probably is not. A dual system is the better approach for Establishment purposes and for the identity of religious individuals. So, in the Catholic Church, there are civil trials for civil liability for causing child sex abuse by clergy and there are ecclesiatical trials for the Church's version of justice. Marci For many agreements to arbitrate, the Federal Arbitration Act is the rgument for enforcement; there is nothing in the FAA that would xempt agreements that provide for a religiously based arbitral forum. For others, analogous state statutes are the argument for enforcement. -Original Message- From: Michael Masinter masin...@nova.edu To: religionlaw religionlaw@lists.ucla.edu Sent: Thu, Nov 11, 2010 2:56 pm Subject: Re: TRO against Oklahoma no use of Sharia Law For many agreements to arbitrate, the Federal Arbitration Act is the rgument for enforcement; there is nothing in the FAA that would xempt agreements that provide for a religiously based arbitral forum. For others, analogous state statutes are the argument for enforcement. Michael R. Masinter 3305 College Avenue rofessor of Law Fort Lauderdale, FL 33314 ova Southeastern University 954.262.6151 (voice) asin...@nova.edu954.262.3835 (fax) Quoting hamilto...@aol.com: What are the arguments for enforcing religious arbitration agreements or disputes when religions have their own courts? Marci Sent from my Verizon Wireless BlackBerry -Original Message- From: Eric Rassbach erassb...@becketfund.org Sender: religionlaw-boun...@lists.ucla.edu Date: Thu, 11 Nov 2010 13:49:19 To: Law Religion issues for Law Academicsreligionlaw@lists.ucla.edu Reply-To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Subject: RE: TRO against Oklahoma no use of Sharia Law Let's say that an arbitration clause says that the case shall be decided in accordance with Islamic law as determined by the Texas Islamic Court. One party sues in Oklahoma state court. The defendant asks the court to stop the state court proceedings and enforce the arbitration clause. The plaintiff says the arbitration clause is unenforceable because some substantive and procedural aspects of Islamic law as typically determined by the Texas Islamic Court are unconscionable/against public policy. Would the court have to consider or look to Sharia to decide the enforceability question? An analogy might be an adequate alternative review on a forum non conveniens motion; courts have had to consider, for example, whether Saudi courts are adequate alternative fora given the lesser weight given to the testimony of women and non-Muslims. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Thursday, November 11, 2010 1:09 PM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law Eric Rassbach writes: Wouldn't that depend on whether consider and look to mean something broader than apply? My sense is that one advantage of arbitration is that courts generally need not consider or look to the underlying law. As I understand it, that's what happens in intrachurch disputes, when courts defer to the decision of the authorized church tribunal -- not a traditional arbitration, I realize, but close to it. And if one party challenged enforcement of the arbitration clause as unconscionable or involuntary based on the use of religious law, would deciding that question require a court to consider religious law? I take it that if the claim required deciding what religious law should actually have been applied, the First Amendment would bar a secular court from resolving the claim. But do you mean that it would have consider religious law to decide whether it actually called for (say) the application of sex discriminatory rules? I would think that even there the court wouldn't actually consider the law as such, but just hear testimony -- from instance, from the arbitral tribunal's judges, or from the parties -- about what procedures
Re: TRO against Oklahoma no use of Sharia Law
I would think that, under Lukumi Babalu and McDaniel, the government may not authorize the enforcement of secular arbitrations but refuse to enforce religious arbitrations. Whatever the scope of permitted discrimination against religion might be under Locke v. Davey, I don't see how Locke would extend to a situation such as this one. More broadly, the Court has interpreted the First Amendment as barring any religious decisions by courts. If some dispute over property - perhaps a substantial amount of property, and perhaps in the context of a schism in which excommunication and shunning might not be much of a remedy - or contract rights requires a determination of a religious question (e.g., whether a supplier's food products are kosher, whether the terms of a religious trust have been fulfilled, and so on), the civil courts will refuse to hear the dispute. I think that's sensible, for the reasons the Court has set out. But if we are to deny religious people a means for resolving their disputes through the normal machinery (and the normal enforcement mechanisms) of civil law, machinery that is one of the essential functions of a government, it seems to me that we should offer them some alternative mechanism. The obvious solution, I think, is the same solution that people get when they want some specialized or supposedly more efficient tribunal to resolve their secular contracts, but with the enforcement power of the state behind the contracts: binding arbitration. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Thursday, November 11, 2010 12:07 PM To: religionlaw@lists.ucla.edu Subject: Re: TRO against Oklahoma no use of Sharia Law I guess my question is not so much how is it possible, but (1) why would we want civil courts to enforce religious agreements? and (2) why would the civil courts be willing to use civil enforcement measures to enforce religious agreements? If a person makes an agreement based on religious principle, why shouldn't they be limited to religious fora and their means of enforcement, whether it is shunning, or excommunication, or having to teach Sunday School. There seems to be an implicit agreement in this discussion that enforcement of religious agreements in civil courts is a positive policy decision. I think it probably is not. A dual system is the better approach for Establishment purposes and for the identity of religious individuals. So, in the Catholic Church, there are civil trials for civil liability for causing child sex abuse by clergy and there are ecclesiatical trials for the Church's version of justice. 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.
RE: TRO against Oklahoma no use of Sharia Law
Dear colleagues, I agree with Marci that a healthy, positive sense of the distinction between religious authority and political / civil authority is important for religious freedom. (This is one reason, I think, measures like the recent attempt in Connecticut to re-organize Catholic parishes on a trustee-ship model are troubling.) And, I think Eugene is right to point out that any willingness on the political authority's part to enforce religious arbitrations or resolve religious disputes is (and should be) cabined by the no religious decisions and no excessive entanglement rules. Still, it does seem to me that political communities might reasonably conclude that an important dimension of human freedom - one that is not outside the appropriate zone of a secular government's concern -- is the ability to enter into a wide variety of actually-binding promises and agreements. I am inclined to think that the fact these agreements and promises (freely and knowingly) incorporate religious commitments, norms, laws, etc., should not necessarily (thought it certainly might, in some cases) make them inappropriate for enforcement by non-religious authorities. Best, Rick Richard W. Garnett Professor of Law and Associate Dean Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) SSRN pagehttp://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235 Blogs: Prawfsblawghttp://prawfsblawg.blogs.com/ Mirror of Justicehttp://www.mirrorofjustice.blogs.com/ Law, Religion, and Ethicshttp://lawreligionethics.net/ From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Thursday, November 11, 2010 3:32 PM To: Law Religion issues for Law Academics Subject: Re: TRO against Oklahoma no use of Sharia Law I would think that, under Lukumi Babalu and McDaniel, the government may not authorize the enforcement of secular arbitrations but refuse to enforce religious arbitrations. Whatever the scope of permitted discrimination against religion might be under Locke v. Davey, I don't see how Locke would extend to a situation such as this one. More broadly, the Court has interpreted the First Amendment as barring any religious decisions by courts. If some dispute over property - perhaps a substantial amount of property, and perhaps in the context of a schism in which excommunication and shunning might not be much of a remedy - or contract rights requires a determination of a religious question (e.g., whether a supplier's food products are kosher, whether the terms of a religious trust have been fulfilled, and so on), the civil courts will refuse to hear the dispute. I think that's sensible, for the reasons the Court has set out. But if we are to deny religious people a means for resolving their disputes through the normal machinery (and the normal enforcement mechanisms) of civil law, machinery that is one of the essential functions of a government, it seems to me that we should offer them some alternative mechanism. The obvious solution, I think, is the same solution that people get when they want some specialized or supposedly more efficient tribunal to resolve their secular contracts, but with the enforcement power of the state behind the contracts: binding arbitration. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Thursday, November 11, 2010 12:07 PM To: religionlaw@lists.ucla.edu Subject: Re: TRO against Oklahoma no use of Sharia Law I guess my question is not so much how is it possible, but (1) why would we want civil courts to enforce religious agreements? and (2) why would the civil courts be willing to use civil enforcement measures to enforce religious agreements? If a person makes an agreement based on religious principle, why shouldn't they be limited to religious fora and their means of enforcement, whether it is shunning, or excommunication, or having to teach Sunday School. There seems to be an implicit agreement in this discussion that enforcement of religious agreements in civil courts is a positive policy decision. I think it probably is not. A dual system is the better approach for Establishment purposes and for the identity of religious individuals. So, in the Catholic Church, there are civil trials for civil liability for causing child sex abuse by clergy and there are ecclesiatical trials for the Church's version of justice. 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
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 -Original Message- From: Volokh, Eugene vol...@law.ucla.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Thu, Nov 11, 2010 3:39 pm Subject: Re: TRO against Oklahoma no use of Sharia Law I would think that, under Lukumi Babalu and McDaniel, the government may not authorize the enforcement of secular arbitrations but refuse to enforce religious arbitrations. Whatever the scope of permitted discrimination against religion might be under Locke v. Davey, I don’t see how Locke would extend to a situation such as this one. More broadly, the Court has interpreted the First Amendment as barring any religious decisions by courts. If some dispute over property – perhaps a substantial amount of property, and perhaps in the context of a schism in which excommunication and shunning might not be much of a remedy – or contract rights requires a determination of a religious question (e.g., whether a supplier’s food products are kosher, whether the terms of a religious trust have been fulfilled, and so on), the civil courts will refuse to hear the dispute. I think that’s sensible, for the reasons the Court has set out. But if we are to deny religious people a means for resolving their disputes through the normal machinery (and the normal enforcement mechanisms) of civil law, machinery that is one of the essential functions of a government, it seems to me that we should offer them some alternative mechanism. The obvious solution, I think, is the same solution that people get when they want some specialized or supposedly more efficient tribunal to resolve their secular contracts, but with the enforcement power of the state behind the contracts: binding arbitration. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Thursday, November 11, 2010 12:07 PM To: religionlaw@lists.ucla.edu Subject: Re: TRO against Oklahoma no use of Sharia Law I guess my question is not so much how is it possible, but (1) why would we want civil courts to enforce religious agreements? and (2) why would the civil courts be willing to use civil enforcement measures to enforce religious agreements? If a person makes an agreement based on religious principle, why shouldn't they be limited to religious fora and their means of enforcement, whether it is shunning, or excommunication, or having to teach Sunday School. There seems to be an implicit agreement in this discussion that enforcement of religious agreements in civil courts is a positive policy decision. I think it probably is not. A dual system is the better approach for Establishment purposes and for the identity of religious individuals. So, in the Catholic Church, there are civil trials for civil liability for causing child sex abuse by clergy and there are ecclesiatical trials for the Church's version of justice. Marci ___ o post, send message to Religionlaw@lists.ucla.edu o subscribe, unsubscribe, change options, or get password, see ttp://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. nyone can subscribe to the list and read messages that are posted; people can ead the Web archives; and list members can (rightly or wrongly) forward the essages 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
Re: TRO against Oklahoma no use of Sharia Law
(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.
Re: TRO against Oklahoma no use of Sharia Law
Taking up one issue first---I read Jones v Wolf as a message from the Court to religious entities that own property: if they want judicial enforcement of their intentions regarding property, they need to have documents that would reach their desired ends throuigh neutral principles of law. In other words, if the deal is based on canon law, don't expect judicial enforcement. If it reflects secular property law, the courts will enforce such deals That is how the courts in the Catholic voluntary bankrupotcy cases have read the case Marci Sent from my Verizon Wireless BlackBerry -Original Message- From: Volokh, Eugene vol...@law.ucla.edu Sender: religionlaw-boun...@lists.ucla.edu Date: Thu, 11 Nov 2010 13:25:20 To: Law Religion issues for Law Academicsreligionlaw@lists.ucla.edu Reply-To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Subject: Re: TRO against Oklahoma no use of Sharia Law ___ 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.
RE: TRO against Oklahoma no use of Sharia Law
I'm not sure I understand. Jones v. Wolf expressly says (emphasis added): Furthermore, the 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. Sounds to me like the Court quite expressly endorsed not just the use of religion-neutral contracts, but (alternatively) the creation of contracts that call for religious arbitration by a particular religious body - arbitration that can dispose of private rights and obligations and resolve[] dispute[s] in a way that is legally binding. And that's true even if the deal is based on canon law, which is of course what the religious body will determine the ownership based on. That's binding arbitration by a religious tribunal using religious principles, and Jones fully endorsed it. Eugene Marci Hamilton writes: Taking up one issue first---I read Jones v Wolf as a message from the Court to religious entities that own property: if they want judicial enforcement of their intentions regarding property, they need to have documents that would reach their desired ends throuigh neutral principles of law. In other words, if the deal is based on canon law, don't expect judicial enforcement. If it reflects secular property law, the courts will enforce such deals That is how the courts in the Catholic voluntary bankrupotcy cases have read the case ___ 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.
RE: TRO against Oklahoma no use of Sharia Law
One interesting parallel are blasphemy laws still on the books in several states but unenforceable under Torcaso v. Watkins. For example, the Arkansas Constitution disqualifies atheists from serving in certain public capacities: http://www.becketfund.org/index.php/article/958.html Presumably these provisions create harms identical to the ones created by the OK provision, and suffer from the same standing/ripeness issues that the Oklahoma law does, precisely because they are so clearly unenforceable. However, one interesting question that arises from the text of the Oklahoma provision (set out below) is that it says that Oklahoma state courts shall not consider international or Sharia Law. Would the word consider prevent an Oklahoma state court from enforcing an arbitral award conducted in accordance with Sharia? What about an arbitration conducted in accordance with English law? (Many international agreements provide for arbitration under English law.) What about interpreting a contract with a choice of law provision specifying English, Canadian, or French law? The Courts provided for in subsection A of this section, when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Oklahoma Constitution/wiki/index.php/Oklahoma_Constitution, the United States Code, federal regulations promulgated pursuant thereto, established common law, the Oklahoma Statutes and rules promulgated pursuant thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions. The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international or Sharia Law. The provisions of this subsection shall apply to all cases before the respective courts including, but not limited to, cases of first impression. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Tuesday, November 09, 2010 5:41 PM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law Perhaps I’m missing something here, but I thought that Flast was limited to taxpayer lawsuits based on the spending of money pursuant to a legislative authorization. See especially Hein, but also Valley Forge. Does it really stand for the broader proposition that any citizen of a state has standing to sue based on the very existence of a statute that endorses or disapproves of religion? I would have thought not, but I’d love to hear what others have to say – again, about what standing law currently is, not what it should be. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Tuesday, November 09, 2010 2:32 PM To: Law Religion issues for Law Academics Subject: Re: TRO against Oklahoma no use of Sharia Law Flast v Cohen. State taxpayer standing is different from federal--broader. Crampton v Zabriskie This law is the epitome of one where broad standing should be allowed because of the obvious establishment issues raised and the clear discrimination against some law on a religious basis. It is not merely in god we trust on money. But perhaps I was a bit flippant in my response. It should be the simplest standing case for injury by someone in the state. But, since it is not taxing and spending, it might not be so simple for this court. It is not a monument case. Nor is it like money cases and so on. It is targeting a specific religion for negative treatment. But, as I noted in my prior post, their is a possibility of someone actually having standing in the more traditional sense of particularized individual injury by application of the law, and the court could (to its discredit) allow the state to enact and have on its books such a law unchallenged and unchallengeable for decades until exactly the right case comes along. Steve On Nov 9, 2010, at 5:11 PM, Volokh, Eugene wrote: I’m not sure whether Prof. Jamar is making a point about what standing law should be, or what it is now. But as to the latter, as best I can tell, the Court has never held that anyone has standing to challenge a law just because the law itself endorses or disapproves of a religion. And Newdow v. Levefre (9th Cir. 2010), http://scholar.google.com/scholar_case?case=753698042392989497, seems to hold that there is no standing in such cases: Newdow lacks standing to challenge 36 U.S.C. § 302, which merely recognizes “In God We Trust” is the national motto. Unlike §§ 5112(d)(1) and 5114(b) [which provide for the placement of the motto on currency], § 302 does not authorize or require the inscription of the motto on any object. Without §§ 5112
RE: TRO against Oklahoma no use of Sharia Law
I should note that, after I sent my original post, I was alerted to the Kleinfeld en banc 6-to-5 majority opinion in Catholic League v. San Francisco (which I had read when it came out, but didn't remember when I was writing). On further research it seems to me that the opinion is an outlier, and that its attempt to distinguish the other precedents - apparently on the grounds that the resolution in Catholic League was unambiguous condemnation of a religion in one's own community - is unsatisfying. (See http://volokh.com/2010/11/10/standing-to-challenge-laws-that-allegedly-endorse-or-disapprove-of-religion/#more-39151 .) But I thought I'd note it in any event. Eugene From: Volokh, Eugene Sent: Tuesday, November 09, 2010 2:41 PM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law Perhaps I'm missing something here, but I thought that Flast was limited to taxpayer lawsuits based on the spending of money pursuant to a legislative authorization. See especially Hein, but also Valley Forge. Does it really stand for the broader proposition that any citizen of a state has standing to sue based on the very existence of a statute that endorses or disapproves of religion? I would have thought not, but I'd love to hear what others have to say - again, about what standing law currently is, not what it should be. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Tuesday, November 09, 2010 2:32 PM To: Law Religion issues for Law Academics Subject: Re: TRO against Oklahoma no use of Sharia Law Flast v Cohen. State taxpayer standing is different from federal--broader. Crampton v Zabriskie This law is the epitome of one where broad standing should be allowed because of the obvious establishment issues raised and the clear discrimination against some law on a religious basis. It is not merely in god we trust on money. But perhaps I was a bit flippant in my response. It should be the simplest standing case for injury by someone in the state. But, since it is not taxing and spending, it might not be so simple for this court. It is not a monument case. Nor is it like money cases and so on. It is targeting a specific religion for negative treatment. But, as I noted in my prior post, their is a possibility of someone actually having standing in the more traditional sense of particularized individual injury by application of the law, and the court could (to its discredit) allow the state to enact and have on its books such a law unchallenged and unchallengeable for decades until exactly the right case comes along. Steve On Nov 9, 2010, at 5:11 PM, Volokh, Eugene wrote: I'm not sure whether Prof. Jamar is making a point about what standing law should be, or what it is now. But as to the latter, as best I can tell, the Court has never held that anyone has standing to challenge a law just because the law itself endorses or disapproves of a religion. And Newdow v. Levefre (9th Cir. 2010), http://scholar.google.com/scholar_case?case=753698042392989497, seems to hold that there is no standing in such cases: Newdow lacks standing to challenge 36 U.S.C. § 302, which merely recognizes In God We Trust is the national motto. Unlike §§ 5112(d)(1) and 5114(b) [which provide for the placement of the motto on currency], § 302 does not authorize or require the inscription of the motto on any object. Without §§ 5112 and 5114, the motto would not appear on coins and currency, and Newdow would lack the unwelcome direct contact with the motto that gives rise to his injury-in-fact. Although Newdow alleges the national motto turns Atheists into political outsiders and inflicts a stigmatic injury upon them, an abstract stigmatic injury resulting from such outsider status is insufficient to confer standing. Other lower court cases recognizing standing to challenge monuments, city seals, and the like have likewise all stressed the objectors' frequent regular contact with the offending inscriptions and symbols. Or am I missing something here? Eugene From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Tuesday, November 09, 2010 2:04 PM To: Law Religion issues for Law Academics Subject: Re: TRO against Oklahoma no use of Sharia Law Simplest establishment standing case ever. Disfavoring one religion is an establishment violation -- that gives anyone standing. Of course the current court could change the rules and restrict standing in this area as they have in others. Since it is at least theoretically possible that someone in Oklahoma could suffer actual harm from this provision (enforcement of an internationally valid Will which is compliant with Hanafi
RE: TRO against Oklahoma no use of Sharia Law
(1) Yes, there's a 1982 case finding no standing with regard to that Arkansas law. (2) The Oklahoma law is indeed awful, not just because of the prohibition on the use of Sharia law but chiefly because of the prohibition on the use of foreign law. See http://volokh.com/2010/03/19/oklahoma-house-of-representatives-proposes-ban-on-use-of-foreign-law-in-oklahoma-courts/, where I describe the various contract, tort, and family law controversies that would be completely screwed up by this amendment. (I don't think there'll be a problem with enforcing arbitral awards, but there would be a problem in the other contexts.) -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Eric Rassbach Sent: Wednesday, November 10, 2010 10:42 AM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law One interesting parallel are blasphemy laws still on the books in several states but unenforceable under Torcaso v. Watkins. For example, the Arkansas Constitution disqualifies atheists from serving in certain public capacities: http://www.becketfund.org/index.php/article/958.html Presumably these provisions create harms identical to the ones created by the OK provision, and suffer from the same standing/ripeness issues that the Oklahoma law does, precisely because they are so clearly unenforceable. However, one interesting question that arises from the text of the Oklahoma provision (set out below) is that it says that Oklahoma state courts shall not consider international or Sharia Law. Would the word consider prevent an Oklahoma state court from enforcing an arbitral award conducted in accordance with Sharia? What about an arbitration conducted in accordance with English law? (Many international agreements provide for arbitration under English law.) What about interpreting a contract with a choice of law provision specifying English, Canadian, or French law? The Courts provided for in subsection A of this section, when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Oklahoma Constitution/wiki/index.php/Oklahoma_Constitution, the United States Code, federal regulations promulgated pursuant thereto, established common law, the Oklahoma Statutes and rules promulgated pursuant thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions. The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international or Sharia Law. The provisions of this subsection shall apply to all cases before the respective courts including, but not limited to, cases of first impression. From: religionlaw-boun...@lists.ucla.edu [religionlaw- boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Tuesday, November 09, 2010 5:41 PM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law Perhaps I'm missing something here, but I thought that Flast was limited to taxpayer lawsuits based on the spending of money pursuant to a legislative authorization. See especially Hein, but also Valley Forge. Does it really stand for the broader proposition that any citizen of a state has standing to sue based on the very existence of a statute that endorses or disapproves of religion? I would have thought not, but I'd love to hear what others have to say - again, about what standing law currently is, not what it should be. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Tuesday, November 09, 2010 2:32 PM To: Law Religion issues for Law Academics Subject: Re: TRO against Oklahoma no use of Sharia Law Flast v Cohen. State taxpayer standing is different from federal--broader. Crampton v Zabriskie This law is the epitome of one where broad standing should be allowed because of the obvious establishment issues raised and the clear discrimination against some law on a religious basis. It is not merely in god we trust on money. But perhaps I was a bit flippant in my response. It should be the simplest standing case for injury by someone in the state. But, since it is not taxing and spending, it might not be so simple for this court. It is not a monument case. Nor is it like money cases and so on. It is targeting a specific religion for negative treatment. But, as I noted in my prior post, their is a possibility of someone actually having standing in the more traditional sense of particularized individual injury by application of the law, and the court could (to its
Re: TRO against Oklahoma no use of Sharia Law
It should be borne in mind that there's a big difference between applying the law of a foreign jurisdiction, either because a contract calls for it or because conflicts rules require it, and international law, which consists of treaties and customary rules. Also, most states have statutes or decisional law stipulating that Federal law is part of the law of the state. The statute itself refers to the Constitution and Federal law, which incorporates the law of Nations within it. One might well argue then that a state law that excludes that aspect of Federal law violates the Supremacy Clause, or that a law that refuses recognition to another state's law that permits reference (for example in a private arbitration) to Sharia or other private law violates the Full Faith and Credit Clause. Or, one can construe the Oklahoma law very narrowly and say it only directs courts not to consider principles of Sharia *as such* as sources of domestic (OK) judicial decisions. Since in each of those cases, you'd have to wait for an appropriate case to come up and then argue the grounds that are best suited to the facts, the objection to standing on an a priori basis is rather powerful. Vance On Wed, Nov 10, 2010 at 1:42 PM, Eric Rassbach erassb...@becketfund.orgwrote: One interesting parallel are blasphemy laws still on the books in several states but unenforceable under Torcaso v. Watkins. For example, the Arkansas Constitution disqualifies atheists from serving in certain public capacities: http://www.becketfund.org/index.php/article/958.html Presumably these provisions create harms identical to the ones created by the OK provision, and suffer from the same standing/ripeness issues that the Oklahoma law does, precisely because they are so clearly unenforceable. However, one interesting question that arises from the text of the Oklahoma provision (set out below) is that it says that Oklahoma state courts shall not consider international or Sharia Law. Would the word consider prevent an Oklahoma state court from enforcing an arbitral award conducted in accordance with Sharia? What about an arbitration conducted in accordance with English law? (Many international agreements provide for arbitration under English law.) What about interpreting a contract with a choice of law provision specifying English, Canadian, or French law? The Courts provided for in subsection A of this section, when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Oklahoma Constitution/wiki/index.php/Oklahoma_Constitution, the United States Code, federal regulations promulgated pursuant thereto, established common law, the Oklahoma Statutes and rules promulgated pursuant thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions. The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international or Sharia Law. The provisions of this subsection shall apply to all cases before the respective courts including, but not limited to, cases of first impression. From: religionlaw-boun...@lists.ucla.edu [ religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [ vol...@law.ucla.edu] Sent: Tuesday, November 09, 2010 5:41 PM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law Perhaps I’m missing something here, but I thought that Flast was limited to taxpayer lawsuits based on the spending of money pursuant to a legislative authorization. See especially Hein, but also Valley Forge. Does it really stand for the broader proposition that any citizen of a state has standing to sue based on the very existence of a statute that endorses or disapproves of religion? I would have thought not, but I’d love to hear what others have to say – again, about what standing law currently is, not what it should be. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Tuesday, November 09, 2010 2:32 PM To: Law Religion issues for Law Academics Subject: Re: TRO against Oklahoma no use of Sharia Law Flast v Cohen. State taxpayer standing is different from federal--broader. Crampton v Zabriskie This law is the epitome of one where broad standing should be allowed because of the obvious establishment issues raised and the clear discrimination against some law on a religious basis. It is not merely in god we trust on money. But perhaps I was a bit flippant in my response. It should be the simplest standing case for injury by someone in the state. But, since it is not taxing and spending, it might not be so simple for this court. It is not a monument case. Nor is it like
Re: TRO against Oklahoma no use of Sharia Law
As I suggested in my previous post, which I sent before I'd read Eugene's latest, it should not be too difficult to interpret the Oklahoma law as permitting application of foreign and international law when these are plainly controlling under contractual and conflicts rules and insofar as they are already incorporated into domestic law. Of course, that would require a judiciary that would feel itself embarrassed to allow the parade of horribles that Eugene adumbrates (I certainly would). Vance On Wed, Nov 10, 2010 at 2:09 PM, Volokh, Eugene vol...@law.ucla.edu wrote: (1) Yes, there's a 1982 case finding no standing with regard to that Arkansas law. (2) The Oklahoma law is indeed awful, not just because of the prohibition on the use of Sharia law but chiefly because of the prohibition on the use of foreign law. See http://volokh.com/2010/03/19/oklahoma-house-of-representatives-proposes-ban-on-use-of-foreign-law-in-oklahoma-courts/, where I describe the various contract, tort, and family law controversies that would be completely screwed up by this amendment. (I don't think there'll be a problem with enforcing arbitral awards, but there would be a problem in the other contexts.) -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Eric Rassbach Sent: Wednesday, November 10, 2010 10:42 AM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law One interesting parallel are blasphemy laws still on the books in several states but unenforceable under Torcaso v. Watkins. For example, the Arkansas Constitution disqualifies atheists from serving in certain public capacities: http://www.becketfund.org/index.php/article/958.html Presumably these provisions create harms identical to the ones created by the OK provision, and suffer from the same standing/ripeness issues that the Oklahoma law does, precisely because they are so clearly unenforceable. However, one interesting question that arises from the text of the Oklahoma provision (set out below) is that it says that Oklahoma state courts shall not consider international or Sharia Law. Would the word consider prevent an Oklahoma state court from enforcing an arbitral award conducted in accordance with Sharia? What about an arbitration conducted in accordance with English law? (Many international agreements provide for arbitration under English law.) What about interpreting a contract with a choice of law provision specifying English, Canadian, or French law? The Courts provided for in subsection A of this section, when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Oklahoma Constitution/wiki/index.php/Oklahoma_Constitution, the United States Code, federal regulations promulgated pursuant thereto, established common law, the Oklahoma Statutes and rules promulgated pursuant thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions. The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international or Sharia Law. The provisions of this subsection shall apply to all cases before the respective courts including, but not limited to, cases of first impression. From: religionlaw-boun...@lists.ucla.edu [religionlaw- boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Tuesday, November 09, 2010 5:41 PM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law Perhaps I'm missing something here, but I thought that Flast was limited to taxpayer lawsuits based on the spending of money pursuant to a legislative authorization. See especially Hein, but also Valley Forge. Does it really stand for the broader proposition that any citizen of a state has standing to sue based on the very existence of a statute that endorses or disapproves of religion? I would have thought not, but I'd love to hear what others have to say - again, about what standing law currently is, not what it should be. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Tuesday, November 09, 2010 2:32 PM To: Law Religion issues for Law Academics Subject: Re: TRO against Oklahoma no use of Sharia Law Flast v Cohen. State taxpayer standing is different from federal--broader. Crampton v Zabriskie This law is the epitome of one where broad standing should be allowed because of the obvious establishment issues raised and the clear discrimination against some
RE: TRO against Oklahoma no use of Sharia Law
The five judges who dissented on the standing issue stated explicitly that while the Catholic League did not have standing, the Catholic Church would have. Why isnt that caveat controlling here? Marc D. Stern Associate General Counsel for Legal Advocacy ste...@ajc.org 212.891.1480 646.287.2606 (cell) http://www.ajc.org/ NOTICE This email may contain confidential and/or privileged material and is intended for the sole use of the intended recipient(s). If you are not the intended recipient, please be advised that you have received this email in error and that any use, disclosure, copying, distribution or other transmission is prohibited, improper and may be unlawful. If you have received this email in error, you must destroy this email and kindly notify the sender by reply email. If this email contains the word CONFIDENTIAL in its Subject line, then even a valid recipient must hold it in confidence and not distribute or disclose it. In such case ONLY the author of the email has permission to forward or otherwise distribute it or disclose its contents to others. _ From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Wednesday, November 10, 2010 1:56 PM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law I should note that, after I sent my original post, I was alerted to the Kleinfeld en banc 6-to-5 majority opinion in Catholic League v. San Francisco (which I had read when it came out, but didnt remember when I was writing). On further research it seems to me that the opinion is an outlier, and that its attempt to distinguish the other precedents apparently on the grounds that the resolution in Catholic League was unambiguous condemnation of a religion in ones own community is unsatisfying. (See http://volokh.com/2010/11/10/standing-to-challenge-laws-that-allegedly-endor se-or-disapprove-of-religion/#more-39151 .) But I thought Id note it in any event. Eugene From: Volokh, Eugene Sent: Tuesday, November 09, 2010 2:41 PM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law Perhaps Im missing something here, but I thought that Flast was limited to taxpayer lawsuits based on the spending of money pursuant to a legislative authorization. See especially Hein, but also Valley Forge. Does it really stand for the broader proposition that any citizen of a state has standing to sue based on the very existence of a statute that endorses or disapproves of religion? I would have thought not, but Id love to hear what others have to say again, about what standing law currently is, not what it should be. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Tuesday, November 09, 2010 2:32 PM To: Law Religion issues for Law Academics Subject: Re: TRO against Oklahoma no use of Sharia Law Flast v Cohen. State taxpayer standing is different from federal--broader. Crampton v Zabriskie This law is the epitome of one where broad standing should be allowed because of the obvious establishment issues raised and the clear discrimination against some law on a religious basis. It is not merely in god we trust on money. But perhaps I was a bit flippant in my response. It should be the simplest standing case for injury by someone in the state. But, since it is not taxing and spending, it might not be so simple for this court. It is not a monument case. Nor is it like money cases and so on. It is targeting a specific religion for negative treatment. But, as I noted in my prior post, their is a possibility of someone actually having standing in the more traditional sense of particularized individual injury by application of the law, and the court could (to its discredit) allow the state to enact and have on its books such a law unchallenged and unchallengeable for decades until exactly the right case comes along. Steve On Nov 9, 2010, at 5:11 PM, Volokh, Eugene wrote: Im not sure whether Prof. Jamar is making a point about what standing law should be, or what it is now. But as to the latter, as best I can tell, the Court has never held that anyone has standing to challenge a law just because the law itself endorses or disapproves of a religion. And Newdow v. Levefre (9th Cir. 2010), http://scholar.google.com/scholar_case?case=753698042392989497, seems to hold that there is no standing in such cases: Newdow lacks standing to challenge 36 U.S.C. § 302, which merely recognizes In God We Trust is the national motto. Unlike §§ 5112(d)(1) and 5114(b) [which provide for the placement of the motto on currency], § 302 does not authorize or require the inscription of the motto on any object. Without §§ 5112 and 5114
RE: TRO against Oklahoma no use of Sharia Law
Oklahoma has enacted a state RFRA. The new constitutional provision would seem to forbid Muslims and Muslims only- from invoking that law in a case involving sharia law, i.e., any claim of religious liberty advanced by a Muslim. (it would also bar, I assume, any claim in the Oklahoma courts by a Muslim inmate under RLUIPA).Why is not the rendering of Muslims outlaws with regard to religious liberty sufficient harm to create standing? Marc D. Stern Associate General Counsel for Legal Advocacy ste...@ajc.org 212.891.1480 646.287.2606 (cell) http://www.ajc.org/ NOTICE This email may contain confidential and/or privileged material and is intended for the sole use of the intended recipient(s). If you are not the intended recipient, please be advised that you have received this email in error and that any use, disclosure, copying, distribution or other transmission is prohibited, improper and may be unlawful. If you have received this email in error, you must destroy this email and kindly notify the sender by reply email. If this email contains the word CONFIDENTIAL in its Subject line, then even a valid recipient must hold it in confidence and not distribute or disclose it. In such case ONLY the author of the email has permission to forward or otherwise distribute it or disclose its contents to others. _ From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Vance R. Koven Sent: Wednesday, November 10, 2010 2:22 PM To: Law Religion issues for Law Academics Subject: Re: TRO against Oklahoma no use of Sharia Law As I suggested in my previous post, which I sent before I'd read Eugene's latest, it should not be too difficult to interpret the Oklahoma law as permitting application of foreign and international law when these are plainly controlling under contractual and conflicts rules and insofar as they are already incorporated into domestic law. Of course, that would require a judiciary that would feel itself embarrassed to allow the parade of horribles that Eugene adumbrates (I certainly would). Vance On Wed, Nov 10, 2010 at 2:09 PM, Volokh, Eugene vol...@law.ucla.edu wrote: (1) Yes, there's a 1982 case finding no standing with regard to that Arkansas law. (2) The Oklahoma law is indeed awful, not just because of the prohibition on the use of Sharia law but chiefly because of the prohibition on the use of foreign law. See http://volokh.com/2010/03/19/oklahoma-house-of-representatives-proposes-ban- on-use-of-foreign-law-in-oklahoma-courts/, where I describe the various contract, tort, and family law controversies that would be completely screwed up by this amendment. (I don't think there'll be a problem with enforcing arbitral awards, but there would be a problem in the other contexts.) -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Eric Rassbach Sent: Wednesday, November 10, 2010 10:42 AM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law One interesting parallel are blasphemy laws still on the books in several states but unenforceable under Torcaso v. Watkins. For example, the Arkansas Constitution disqualifies atheists from serving in certain public capacities: http://www.becketfund.org/index.php/article/958.html Presumably these provisions create harms identical to the ones created by the OK provision, and suffer from the same standing/ripeness issues that the Oklahoma law does, precisely because they are so clearly unenforceable. However, one interesting question that arises from the text of the Oklahoma provision (set out below) is that it says that Oklahoma state courts shall not consider international or Sharia Law. Would the word consider prevent an Oklahoma state court from enforcing an arbitral award conducted in accordance with Sharia? What about an arbitration conducted in accordance with English law? (Many international agreements provide for arbitration under English law.) What about interpreting a contract with a choice of law provision specifying English, Canadian, or French law? The Courts provided for in subsection A of this section, when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Oklahoma Constitution/wiki/index.php/Oklahoma_Constitution, the United States Code, federal regulations promulgated pursuant thereto, established common law, the Oklahoma Statutes and rules promulgated pursuant thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions. The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international or Sharia Law. The provisions of this subsection
RE: TRO against Oklahoma no use of Sharia Law
(1) I'm not sure that the Oklahoma amendment should be interpreted that way. As I said, I think it will, under the most logical interpretation, cause all sorts of harm, chiefly stemming from the ban on considering foreign law (The courts shall not look to the legal precepts of other nations or cultures). But I'm not sure that its provision that Specifically, the courts shall not consider international law or Sharia Law would ban religious exemptions for Muslims, since such exemptions could be handled by simply asking what the objector sincerely believes, without any consideration of Sharia Law as such. And given the canon of interpreting provision to avoid constitutional doubt, I would think that the provision should indeed be interpreted to not preclude religious exemption claims for Muslims. More broadly, if there's some uncertainty about the meaning of the provision, then I would think that Pullman abstention would be sound. (2) But even if the amendment is properly interpreted as prohibiting exemption for Muslims, wouldn't a challenger lack standing unless he's in a position to ask for a specific exemption, and is facing a denial of that exemption? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marc Stern Sent: Wednesday, November 10, 2010 11:34 AM To: 'Law Religion issues for Law Academics' Subject: RE: TRO against Oklahoma no use of Sharia Law Oklahoma has enacted a state RFRA. The new constitutional provision would seem to forbid Muslims -and Muslims only- from invoking that law in a case involving sharia law, i.e., any claim of religious liberty advanced by a Muslim. (it would also bar, I assume, any claim in the Oklahoma courts by a Muslim inmate under RLUIPA).Why is not the rendering of Muslims outlaws with regard to religious liberty sufficient harm to create standing? Marc D. Stern Associate General Counsel for Legal Advocacy ste...@ajc.org 212.891.1480 646.287.2606 (cell) [cid:image001.jpg@01CB80D0.7618A2B0]http://www.ajc.org/ NOTICE This email may contain confidential and/or privileged material and is intended for the sole use of the intended recipient(s). If you are not the intended recipient, please be advised that you have received this email in error and that any use, disclosure, copying, distribution or other transmission is prohibited, improper and may be unlawful. If you have received this email in error, you must destroy this email and kindly notify the sender by reply email. If this email contains the word CONFIDENTIAL in its Subject line, then even a valid recipient must hold it in confidence and not distribute or disclose it. In such case ONLY the author of the email has permission to forward or otherwise distribute it or disclose its contents to others. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Vance R. Koven Sent: Wednesday, November 10, 2010 2:22 PM To: Law Religion issues for Law Academics Subject: Re: TRO against Oklahoma no use of Sharia Law As I suggested in my previous post, which I sent before I'd read Eugene's latest, it should not be too difficult to interpret the Oklahoma law as permitting application of foreign and international law when these are plainly controlling under contractual and conflicts rules and insofar as they are already incorporated into domestic law. Of course, that would require a judiciary that would feel itself embarrassed to allow the parade of horribles that Eugene adumbrates (I certainly would). Vance On Wed, Nov 10, 2010 at 2:09 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: (1) Yes, there's a 1982 case finding no standing with regard to that Arkansas law. (2) The Oklahoma law is indeed awful, not just because of the prohibition on the use of Sharia law but chiefly because of the prohibition on the use of foreign law. See http://volokh.com/2010/03/19/oklahoma-house-of-representatives-proposes-ban-on-use-of-foreign-law-in-oklahoma-courts/, where I describe the various contract, tort, and family law controversies that would be completely screwed up by this amendment. (I don't think there'll be a problem with enforcing arbitral awards, but there would be a problem in the other contexts.) -Original Message- From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-mailto:religionlaw- boun...@lists.ucla.edumailto:boun...@lists.ucla.edu] On Behalf Of Eric Rassbach Sent: Wednesday, November 10, 2010 10:42 AM To: Law Religion issues for Law Academics Subject: RE: TRO against Oklahoma no use of Sharia Law One interesting parallel are blasphemy laws still on the books in several states but unenforceable under Torcaso v. Watkins. For example, the Arkansas Constitution disqualifies
RE: TRO against Oklahoma no use of Sharia Law
But the resolution was non-binding and unenforceable; how then, on your view of standing are they harmed? Marc D. Stern Associate General Counsel for Legal Advocacy ste...@ajc.org 212.891.1480 646.287.2606 (cell) http://www.ajc.org/ NOTICE This email may contain confidential and/or privileged material and is intended for the sole use of the intended recipient(s). If you are not the intended recipient, please be advised that you have received this email in error and that any use, disclosure, copying, distribution or other transmission is prohibited, improper and may be unlawful. If you have received this email in error, you must destroy this email and kindly notify the sender by reply email. If this email contains the word CONFIDENTIAL in its Subject line, then even a valid recipient must hold it in confidence and not distribute or disclose it. In such case ONLY the author of the email has permission to forward or otherwise distribute it or disclose its contents to others. _ From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Wednesday, November 10, 2010 3:20 PM To: Law Religion issues for Law Academics Subject: FW: TRO against Oklahoma no use of Sharia Law Well, the Catholic League minority reasoned that the parties who are personally the subjects of the resolution, such as Cardinal Levada, Archbishop Niederauer, and Catholic Charities, could demonstrate cognizable harm, because they were singled out by name in the resolution; but that people who are simply offended by the condemnation of Catholicism do not have standing. I would think that the plaintiff in the Oklahoma case falls more in the latter category than in the former. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marc Stern Sent: Wednesday, November 10, 2010 11:36 AM To: 'Law Religion issues for Law Academics' Subject: RE: TRO against Oklahoma no use of Sharia Law The five judges who dissented on the standing issue stated explicitly that while the Catholic League did not have standing, the Catholic Church would have. Why isn't that caveat controlling here? Marc D. Stern Associate General Counsel for Legal Advocacy image001.jpg___ 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.
RE: TRO against Oklahoma no use of Sharia Law
Perhaps principles from the common law of defamation can do some work in the Catholic League case -- the allegedly injured party must show that the defamatory statement was of and concerning the plaintiff (so named church officials, yes; all unnamed Catholics, no?) Ira C. Lupu F. Elwood Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg Original message Date: Wed, 10 Nov 2010 15:25:37 -0500 From: religionlaw-boun...@lists.ucla.edu (on behalf of Marc Stern ste...@ajc.org) Subject: RE: TRO against Oklahoma no use of Sharia Law To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu But the resolution was non-binding and unenforceable; how then, on your view of standing are they harmed? Marc D. Stern Associate General Counsel for Legal Advocacy ste...@ajc.org 212.891.1480 646.287.2606 (cell) [IMG] NOTICE This email may contain confidential and/or privileged material and is intended for the sole use of the intended recipient(s). If you are not the intended recipient, please be advised that you have received this email in error and that any use, disclosure, copying, distribution or other transmission is prohibited, improper and may be unlawful. If you have received this email in error, you must destroy this email and kindly notify the sender by reply email. If this email contains the word CONFIDENTIAL in its Subject line, then even a valid recipient must hold it in confidence and not distribute or disclose it. In such case ONLY the author of the email has permission to forward or otherwise distribute it or disclose its contents to others. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Wednesday, November 10, 2010 3:20 PM To: Law Religion issues for Law Academics Subject: FW: TRO against Oklahoma no use of Sharia Law Well, the Catholic League minority reasoned that the parties who are personally the subjects of the resolution, such as Cardinal Levada, Archbishop Niederauer, and Catholic Charities, could demonstrate cognizable harm, because they were singled out by name in the resolution; but that people who are simply offended by the condemnation of Catholicism do not have standing. I would think that the plaintiff in the Oklahoma case falls more in the latter category than in the former. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marc Stern Sent: Wednesday, November 10, 2010 11:36 AM To: 'Law Religion issues for Law Academics' Subject: RE: TRO against Oklahoma no use of Sharia Law The five judges who dissented on the standing issue stated explicitly that while the Catholic League did not have standing, the Catholic Church would have. Why isn't that caveat controlling here? Marc D. Stern Associate General Counsel for Legal Advocacy ___ 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.
RE: TRO against Oklahoma no use of Sharia Law
Well, it's not my view of standing - it's the Catholic Charities minority's. The five judges thought that San Franciscans didn't have standing to challenge the resolution simply on the theory that it allegedly conveyed a message of hostility to their religion, or made them feel like outsiders. That strikes me as quite hard to distinguish from the message-of-hostility claim in the Oklahoma litigation; likewise, that Oklahoma claim strikes me as hard to support under any of the circuit cases on standing in such cases, other than the Catholic Charities majority. Now it's true that the Catholic Charities minority thought that the parties who are personally the subjects of the resolution, such as Cardinal Levada, Archbishop Niederauer, and Catholic Charities, could demonstrate cognizable harm, presumably because there was something particularized as to them in the resolution. Maybe the minority was mistaken on this - maybe under the logic of the opinion, the result should be the same as to both rank-and-file Catholics and the Cardinal, Archbishop, and Catholic Charities. But given the minority's distinction, it seems to me that rank-and-file Muslims in Oklahoma are much closer to rank-and-file Catholics in San Francisco than to the people and organization specifically named in the San Francisco resolution. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marc Stern Sent: Wednesday, November 10, 2010 12:26 PM To: 'Law Religion issues for Law Academics' Subject: RE: TRO against Oklahoma no use of Sharia Law But the resolution was non-binding and unenforceable; how then, on your view of standing are they harmed? Marc D. Stern Associate General Counsel for Legal Advocacy ste...@ajc.org 212.891.1480 646.287.2606 (cell) ___ 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.
Re: TRO against Oklahoma no use of Sharia Law
But isn't the question under the state RFRA what the individual plaintiff sincerely believes, not what sharia (or the talmud, or the Bible, or the Pope) says? Art Spitzer In a message dated 11/10/10 3:55:31 PM, ste...@ajc.org writes: Oklahoma has enacted a state RFRA. The new constitutional provision would seem to forbid Muslims –and Muslims only- from invoking that law in a case involving sharia law, i.e., any claim of religious liberty advanced by a Muslim. (it would also bar, I assume, any claim in the Oklahoma courts by a Muslim inmate under RLUIPA).Why is not the rendering of Muslims outlaws with regard to religious liberty sufficient harm to create standing? ___ 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.
Re: TRO against Oklahoma no use of Sharia Law
Simplest establishment standing case ever. Disfavoring one religion is an establishment violation -- that gives anyone standing. Of course the current court could change the rules and restrict standing in this area as they have in others. Since it is at least theoretically possible that someone in Oklahoma could suffer actual harm from this provision (enforcement of an internationally valid Will which is compliant with Hanafi or Shafai or Wahabi or other schools of Islamic jurisprudence, for example), the court could use this to trim establishment claim standing. On Nov 9, 2010, at 4:47 PM, Volokh, Eugene wrote: I thought I’d ask list members what they thought about this. Here’s my post on the subject, in case it’s of interest – I’d love to hear whether others on the list agree. http://volokh.com/2010/11/09/district-court-temporarily-enjoins-oklahoma-no-use-of-shariah-law-in-court-constitutional-amendment -- 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/ Never doubt that the work of a small group of thoughtful, committed citizens can change the world. Indeed, it’s the only thing that ever has. Margaret Meade ___ 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.
RE: TRO against Oklahoma no use of Sharia Law
I'm not sure whether Prof. Jamar is making a point about what standing law should be, or what it is now. But as to the latter, as best I can tell, the Court has never held that anyone has standing to challenge a law just because the law itself endorses or disapproves of a religion. And Newdow v. Levefre (9th Cir. 2010), http://scholar.google.com/scholar_case?case=753698042392989497, seems to hold that there is no standing in such cases: Newdow lacks standing to challenge 36 U.S.C. § 302, which merely recognizes In God We Trust is the national motto. Unlike §§ 5112(d)(1) and 5114(b) [which provide for the placement of the motto on currency], § 302 does not authorize or require the inscription of the motto on any object. Without §§ 5112 and 5114, the motto would not appear on coins and currency, and Newdow would lack the unwelcome direct contact with the motto that gives rise to his injury-in-fact. Although Newdow alleges the national motto turns Atheists into political outsiders and inflicts a stigmatic injury upon them, an abstract stigmatic injury resulting from such outsider status is insufficient to confer standing. Other lower court cases recognizing standing to challenge monuments, city seals, and the like have likewise all stressed the objectors' frequent regular contact with the offending inscriptions and symbols. Or am I missing something here? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Tuesday, November 09, 2010 2:04 PM To: Law Religion issues for Law Academics Subject: Re: TRO against Oklahoma no use of Sharia Law Simplest establishment standing case ever. Disfavoring one religion is an establishment violation -- that gives anyone standing. Of course the current court could change the rules and restrict standing in this area as they have in others. Since it is at least theoretically possible that someone in Oklahoma could suffer actual harm from this provision (enforcement of an internationally valid Will which is compliant with Hanafi or Shafai or Wahabi or other schools of Islamic jurisprudence, for example), the court could use this to trim establishment claim standing. On Nov 9, 2010, at 4:47 PM, Volokh, Eugene wrote: I thought I'd ask list members what they thought about this. Here's my post on the subject, in case it's of interest - I'd love to hear whether others on the list agree. http://volokh.com/2010/11/09/district-court-temporarily-enjoins-oklahoma-no-use-of-shariah-law-in-court-constitutional-amendment -- 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/ Never doubt that the work of a small group of thoughtful, committed citizens can change the world. Indeed, it's the only thing that ever has. Margaret Meade ___ 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.
Re: TRO against Oklahoma no use of Sharia Law
Flast v Cohen. State taxpayer standing is different from federal--broader. Crampton v Zabriskie This law is the epitome of one where broad standing should be allowed because of the obvious establishment issues raised and the clear discrimination against some law on a religious basis. It is not merely in god we trust on money. But perhaps I was a bit flippant in my response. It should be the simplest standing case for injury by someone in the state. But, since it is not taxing and spending, it might not be so simple for this court. It is not a monument case. Nor is it like money cases and so on. It is targeting a specific religion for negative treatment. But, as I noted in my prior post, their is a possibility of someone actually having standing in the more traditional sense of particularized individual injury by application of the law, and the court could (to its discredit) allow the state to enact and have on its books such a law unchallenged and unchallengeable for decades until exactly the right case comes along. Steve On Nov 9, 2010, at 5:11 PM, Volokh, Eugene wrote: I’m not sure whether Prof. Jamar is making a point about what standing law should be, or what it is now. But as to the latter, as best I can tell, the Court has never held that anyone has standing to challenge a law just because the law itself endorses or disapproves of a religion. And Newdow v. Levefre (9th Cir. 2010), http://scholar.google.com/scholar_case?case=753698042392989497, seems to hold that there is no standing in such cases: Newdow lacks standing to challenge 36 U.S.C. § 302, which merely recognizes “In God We Trust” is the national motto. Unlike §§ 5112(d)(1) and 5114(b) [which provide for the placement of the motto on currency], § 302 does not authorize or require the inscription of the motto on any object. Without §§ 5112 and 5114, the motto would not appear on coins and currency, and Newdow would lack the “unwelcome direct contact” with the motto that gives rise to his injury-in-fact. Although Newdow alleges the national motto turns Atheists into political outsiders and inflicts a stigmatic injury upon them, an “abstract stigmatic injury” resulting from such outsider status is insufficient to confer standing. Other lower court cases recognizing standing to challenge monuments, city seals, and the like have likewise all stressed the objectors’ “frequent regular contact” with the offending inscriptions and symbols. Or am I missing something here? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Tuesday, November 09, 2010 2:04 PM To: Law Religion issues for Law Academics Subject: Re: TRO against Oklahoma no use of Sharia Law Simplest establishment standing case ever. Disfavoring one religion is an establishment violation -- that gives anyone standing. Of course the current court could change the rules and restrict standing in this area as they have in others. Since it is at least theoretically possible that someone in Oklahoma could suffer actual harm from this provision (enforcement of an internationally valid Will which is compliant with Hanafi or Shafai or Wahabi or other schools of Islamic jurisprudence, for example), the court could use this to trim establishment claim standing. On Nov 9, 2010, at 4:47 PM, Volokh, Eugene wrote: I thought I’d ask list members what they thought about this. Here’s my post on the subject, in case it’s of interest – I’d love to hear whether others on the list agree. http://volokh.com/2010/11/09/district-court-temporarily-enjoins-oklahoma-no-use-of-shariah-law-in-court-constitutional-amendment -- 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/ Never doubt that the work of a small group of thoughtful, committed citizens can change the world. Indeed, it’s the only thing that ever has. Margaret Meade ___ 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. -- 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/ Years ago my mother
RE: TRO against Oklahoma no use of Sharia Law
I'm inclined to think that Eugene's original post (no standing, no ripeness) is spot-on in this case. Maybe there is an argument that anyone who resides in Oklahoma has frequent regular contact with any principle in the Oklahoma Constitution, but I wouldn't buy it. (How would we distinguish this case from any other objection, based on insult, disparagement, or offense, to a constitutional provision? Perhaps standing would be OK in any such case -- suppose the voters declared the state to be a White Supremacist state?) I think the deeper problem here -- and the reason why we have so many anomalous standing doctrines in Establishment Clause law, like taxpayer standing and observer standing -- is that the Clause primarily stands for a polity principle, and not a rights-based principle. So, for example, if Oklahoma voters had approved a provision declaring the state to have a Christian identity, we'd all know that the incorporated Establishment Clause had been violated, but we'd have the same trouble finding a proper plaintiff (one who satisfied Art. III standards) to challenge it in a federal court. Perhaps the Oklahoma state courts would be a more legally hospitable forum (though we would of course want to know more about re-elections or recall elections for state court judges in Oklahoma). Ira C. Lupu F. Elwood Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg Original message Date: Tue, 9 Nov 2010 14:11:32 -0800 From: religionlaw-boun...@lists.ucla.edu (on behalf of Volokh, Eugene vol...@law.ucla.edu) Subject: RE: TRO against Oklahoma no use of Sharia Law To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu A A A A A A A A A A A A A A I'm not sure whether Prof. Jamar is making a point about what standing law should be, or what it is now.A But as to the latter, as best I can tell, the Court has never held that anyone has standing to challenge a law just because the law itself endorses or disapproves of a religion.A And Newdow v. Levefre (9th Cir. 2010), http://scholar.google.com/scholar_case?case=753698042392989497, seems to hold that there is no standing in such cases: Newdow lacks standing to challenge 36 U.S.C. AS: 302, which merely recognizes In God We Trust is the national motto. Unlike AS:AS: 5112(d)(1) and 5114(b) [which provide for the placement of the motto on currency], AS: 302 does not authorize or require the inscription of the motto on any object. Without AS:AS: 5112 and 5114, the motto would not appear on coins and currency, and Newdow would lack the unwelcome direct contact with the motto that gives rise to his injury-in-fact. Although Newdow alleges the national motto turns Atheists into political outsiders and inflicts a stigmatic injury upon them, an abstract stigmatic injury resulting from such outsider status is insufficient to confer standing. Other lower court cases recognizing standing to challenge monuments, city seals, and the like have likewise all stressed the objectors' frequent regular contact with the offending inscriptions and symbols.A Or am I missing something here? A A A A A A A A A A A A A A Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Tuesday, November 09, 2010 2:04 PM To: Law Religion issues for Law Academics Subject: Re: TRO against Oklahoma no use of Sharia Law Simplest establishment standing case ever. Disfavoring one religion is an establishment violation -- that gives anyone standing. Of course the current court could change the rules and restrict standing in this area as they have in others. Since it is at least theoretically possible that someone in Oklahoma could suffer actual harm from this provision (enforcement of an internationally valid Will which is compliant with Hanafi or Shafai or Wahabi or other schools of Islamic jurisprudence, for example), the court could use this to trim establishment claim standing. On Nov 9, 2010, at 4:47 PM, Volokh, Eugene wrote: I thought I'd ask list members what they thought about this. Here's my post on the subject, in case it's of interest - I'd love to hear whether others on the list agree. http://volokh.com/2010/11/09/district-court-temporarily-enjoins-oklahoma-no-use-of-shariah-law-in-court-constitutional-amendment -- 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
RE: TRO against Oklahoma no use of Sharia Law
Perhaps I'm missing something here, but I thought that Flast was limited to taxpayer lawsuits based on the spending of money pursuant to a legislative authorization. See especially Hein, but also Valley Forge. Does it really stand for the broader proposition that any citizen of a state has standing to sue based on the very existence of a statute that endorses or disapproves of religion? I would have thought not, but I'd love to hear what others have to say - again, about what standing law currently is, not what it should be. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Tuesday, November 09, 2010 2:32 PM To: Law Religion issues for Law Academics Subject: Re: TRO against Oklahoma no use of Sharia Law Flast v Cohen. State taxpayer standing is different from federal--broader. Crampton v Zabriskie This law is the epitome of one where broad standing should be allowed because of the obvious establishment issues raised and the clear discrimination against some law on a religious basis. It is not merely in god we trust on money. But perhaps I was a bit flippant in my response. It should be the simplest standing case for injury by someone in the state. But, since it is not taxing and spending, it might not be so simple for this court. It is not a monument case. Nor is it like money cases and so on. It is targeting a specific religion for negative treatment. But, as I noted in my prior post, their is a possibility of someone actually having standing in the more traditional sense of particularized individual injury by application of the law, and the court could (to its discredit) allow the state to enact and have on its books such a law unchallenged and unchallengeable for decades until exactly the right case comes along. Steve On Nov 9, 2010, at 5:11 PM, Volokh, Eugene wrote: I'm not sure whether Prof. Jamar is making a point about what standing law should be, or what it is now. But as to the latter, as best I can tell, the Court has never held that anyone has standing to challenge a law just because the law itself endorses or disapproves of a religion. And Newdow v. Levefre (9th Cir. 2010), http://scholar.google.com/scholar_case?case=753698042392989497, seems to hold that there is no standing in such cases: Newdow lacks standing to challenge 36 U.S.C. § 302, which merely recognizes In God We Trust is the national motto. Unlike §§ 5112(d)(1) and 5114(b) [which provide for the placement of the motto on currency], § 302 does not authorize or require the inscription of the motto on any object. Without §§ 5112 and 5114, the motto would not appear on coins and currency, and Newdow would lack the unwelcome direct contact with the motto that gives rise to his injury-in-fact. Although Newdow alleges the national motto turns Atheists into political outsiders and inflicts a stigmatic injury upon them, an abstract stigmatic injury resulting from such outsider status is insufficient to confer standing. Other lower court cases recognizing standing to challenge monuments, city seals, and the like have likewise all stressed the objectors' frequent regular contact with the offending inscriptions and symbols. Or am I missing something here? Eugene From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Tuesday, November 09, 2010 2:04 PM To: Law Religion issues for Law Academics Subject: Re: TRO against Oklahoma no use of Sharia Law Simplest establishment standing case ever. Disfavoring one religion is an establishment violation -- that gives anyone standing. Of course the current court could change the rules and restrict standing in this area as they have in others. Since it is at least theoretically possible that someone in Oklahoma could suffer actual harm from this provision (enforcement of an internationally valid Will which is compliant with Hanafi or Shafai or Wahabi or other schools of Islamic jurisprudence, for example), the court could use this to trim establishment claim standing. On Nov 9, 2010, at 4:47 PM, Volokh, Eugene wrote: I thought I'd ask list members what they thought about this. Here's my post on the subject, in case it's of interest - I'd love to hear whether others on the list agree. http://volokh.com/2010/11/09/district-court-temporarily-enjoins-oklahoma-no-use-of-shariah-law-in-court-constitutional-amendment -- 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/ Never doubt that the work of a small group of thoughtful, committed citizens can change the world. Indeed, it's the only thing
