That's the issue lurking in In re Aramco Servs.
Co.http://scholar.google.com/scholar_case?case=11521915190435651264, now on
appeal to the Texas Supreme Court. DynCorp and Aramco Services (both of which
were at the time Delaware corporations headquartered in Houston, though Aramco
Services is a
It seems difficult to find an equal protection violation if the Court is
merely enforcing the contract. It seems to me that a more likely
constitutional objection would be that the contract cannot be enforced
without running afoul of the neutral principles doctrine. Can a court make
a decision
What if the agreement said African Americans or women only?
Marci
Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
Sent from my Verizon Wireless BlackBerry
-Original Message-
From: Volokh, Eugene vol...@law.ucla.edu
Sender:
I agree with Nate's neutral principles / entanglement argument.
But I wonder whether one can so easily dismiss the equal protection argument
from the enforcement of the contract. The court, after all, would have to
decide who gets to perform an important and lucrative task
What if it said apply Brazilian law and appoint only lawyers admitted
to practice in brazil?
Sent from Steve Jamar's iPhone
On Jan 3, 2011, at 11:08 AM, hamilto...@aol.com wrote:
What if the agreement said African Americans or women only?
Marci
Marci A. Hamilton
Paul R. Verkuil Chair in
Why isn't Shelley v. Kramer at least relevant, even if it can be
distinguished, and even if it's most extreme implications-that all judicial
enforcement of private activity is state action- would be problematic to
many albeit not always in the same cases?
Marc D. Stern
Associate General
What if the dispute involved a matter of religious law or control of a
religious entity or a dispute between a parochial school and a faculty
member ?
SAMUEL M. KRIEGER
-Original Message-
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of
Here is the relevant provision (in translation) from the case-link Eugene sent
around:
The Arbitrator must be a Saudi national or a Moslem foreigner chosen amongst
the members of the liberal professions or other persons. He may also be chosen
amongst state officials after agreement of the
I use a contract clause to arbitrate using a Christian arbitration service. The
clause spells out the service much like one would specify AAA to arbitrate. The
clause does not give requirements for the arbitrators, just what organization
will arbitrate. The reasoning is that the Bible tells
The court could apparently comply with the contract, and avoid all entanglement
iwth religion, by appointing three Saudis. Does anybody see a problem with
that?
I assume that all Saudis are Muslim, or at least that the percentage is so high
that the odds of appointing a non-Muslim Saudi are
While I am not an academic (just a practicing lawyer in New York), I
understand there will be a panel at the forthcoming AALS meeting on the Beis
Din (rabbinic Arbitration). There is a long line of cases in NY on Beis Din
issues ranging from panel selection, panel composition to enforcement of
But would this agreement be enforceable in Oklahoma ,with its ban on courts
applying sharia law?
Marc D. Stern
Associate General Counsel
165 East 56th Street
NY NY 10022
ste...@ajc.org
212.891.1480
646.287.2606 (cell)
-Original Message-
From: religionlaw-boun...@lists.ucla.edu
Eugene, do you contend that knowledge of the Sharia is not a valid limitation
or only that being a Muslim is not?
On Jan 3, 2011, at 2:32 PM, Douglas Laycock wrote:
must know the Shari'a, commercial laws and the customs in force in the
Kingdom
--
Prof. Steven D. Jamar
I suspect that the contract also specifies that it is to be interpreted and
applied and enforced according to Sharia law of the Wahabi school and Saudi
Arabian law where the Sharia is not determinative.
While I am far more familiar with much of sharia law than most American lawyers
and
I recognize this isn't an employment discrimination case, but is the
constitutional problem eased if the religion of the arbitrators could
be considered a bona fide occupational qualification? We recognize
constitutional exceptions for those, right?
Per Marc's question, presuming the
I'm not sure whether BFOQ doctrine as to religion helps us much as to
the First Amendment analysis. That private entities aren't barred from
discriminating based on religion in some contexts doesn't necessarily tell us,
I think, that the government has an equally free hand.
My view is that being a Muslim is not a limitation on being an
arbitrator that a court may properly enforce, given the First Amendment and the
Equal Protection Clause.
I don't think there's any constitutional difficulty with a
court's deciding whether someone
Is someone applying for a military chaplaincy required or expected to have some
religious qualification or membership in a religious order? Could a nonbeliever
who nonetheless has an extensive academic knowledge of religion sue for
discrimination if she's denied such employment?
On Jan 3,
One difficulty is that we don't have much law on what constitutes a
BFOQ where religion is concerned. But I think military (and prison) chaplaincy
cases are generally treated very differently under the First Amendment than
other kinds of cases, as to a wide range of First Amendment
What is the entanglement problem in Eugene's view if the Court is not being
asked to decide a religious question? If ARAMCO objected to the appointment of
an Ahmadi arbitrator as non-Muslim then I could see how the Court would be
unable to resolve the dispute. But appointing a Muslim
Eugene,
In your mind does the constitutional difficulty arise from the court
choosing a Muslim arbitrator under the contract or from the enforcement of a
contract involving religious terms? Suppose, for example, that the parties
had -- pursuant to the contract -- chosen Muslim arbitrators, who
I think that the entanglement question would most clearly arise when
the dispute is whether someone really knows Sharia as Islamic law (rather than
just as Saudi law), and the heart of the disagreement really goes to how he
interprets Islamic law.
I think there would also be an
Eugene,
In your mind does the constitutional difficulty arise from the court choosing a
Muslim arbitrator under the contract or from the enforcement of a contract
involving religious terms?
The former; I don't see any inherent problem in enforcing the
results of a religious
To say that military and prison chaplains get special treatment under First
Amendment law isn't to explain why that should be so or why it should be
restricted to that context. With chaplains, the govt appoints people based on
specific religious qualifications to attend to the specific needs of
I’m no great fan of the more expansive readings of Shelly.
But when a government actor is deciding who gets a particular (lucrative)
position based on that person’s religion, it seems to me that state action
is eminently present, or more specifically that the government actor is
My sense is that the prison and military contexts aren't just justified
on the grounds of the governments attend[ing] to the specific needs of an
identifiable group -- that would equally apply to parochial school funding
(even of a sort that goes far beyond what was allowed by Zelman
I wrote:
I'm no great fan of the more expansive readings of Shelly. But
when a government actor is deciding who gets a particular (lucrative) position
based on that person's religion, it seems to me that state action is eminently
present, or more specifically that the
Nathan is correct in that I would think judicial enforcement of contracts
requiring religious arbitrators has plenty of opportunities to threaten the
liberal state.
First, I assume as a matter of contract law that any obligations arising out of
such agreements that involve otherwise illegal
It is helpful to remember that in the actual case the contract (at least
according to the Texas Ct. of Appeals) did not call the for a court to appoint
the arbitrator(s). As Steve Sanders pointed out, a properly drafted contract
would avoid the problem we are discussing by providing for private
Eugene writes,
By the way, what do you think about a state university administering a
privately funded scholarship for Christian students?
Just to clarify your point, Eugene - Is the distinction you are drawing one
that distinguishes between government resources being allocated by private
A few thoughts in response to Eugene's email below:
Eugene's recounting of what would happen in the Ahmadi hypo leaves out an
important step: after one party objects to the Ahmadi as non-Muslim, the Court
won't just act immediately. The other party to the arbitration has to take a
position. If
Isn't the answer to this question, Eric, that there is no single Sharia
law? Interpretation of Sharia law requires a court to pick and choose
between Sharia doctrines. It is not terribly different from the wide variety
of Christian interpretations of the Bible.
Marci
In a message
Does anyone actually know the current appointment system for military
chaplains? A fairly high ranking officer told me that they no longer have
quotas by denomination, as a result of litigation; that was either held
unconstitutional or they agreed in a settlement to abandon it. The special
I don't know about military chaplains (and I know this is a bit of a
digression), but there is an interesting case before the 9th Circuit involving
prison chaplains, McCollum v. CA Dept. of Corrections. Plaintiff, a Wiccan who
applied to be a prison chaplain and was rejected, alleges that
On Mon, Jan 3, 2011 at 7:39 PM, hamilto...@aol.com wrote:
Isn't the answer to this question, Eric, that there is no single Sharia
law? Interpretation of Sharia law requires a court to pick and choose
between Sharia doctrines. It is not terribly different from the wide
variety of Christian
Your response requires the agreement to specify which school of Sharia law is
to be employed. So my point that Sharia law is not self-defining still
stands. No?
Marci
Sent from my Verizon Wireless BlackBerry
-Original Message-
From: Nathan Oman nate.o...@gmail.com
Sender:
Douglas Laycock
Armistead M. Dobie Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546
--- the forwarded message follows ---
---BeginMessage---
Doug, for some reason my message to the list was just bounced back, so
here's what I meant
First, I assume as a matter of contract law that any obligations arising
out of such agreements that involve otherwise illegal conduct are void. So
genital mutilation, trading of girls as wives (or simply for procreation),
aiding polygamy, covering up child abuse when it is required to be
To be appointed a chaplain, a person needs an ecclesiastical endorsement from a
recognized endorsing agency connected with the person's faith group. See
http://www.goarmy.com/chaplain/about/requirements.html
Howard Friedman
-Original Message-
From: religionlaw-boun...@lists.ucla.edu
I think the 1983 New York Court of Appeals decision in Avitzur v. Avitzur, 446
NE2d 136 is relevant to this discussion. There a court enforced the so-called
Lieberman clause in a Jewish marriage contract (Ketubah) which bound the
parties to appear before a Jewish religious court so the wife
On Mon, Jan 3, 2011 at 8:52 PM, hamilto...@aol.com wrote:
Your response requires the agreement to specify which school of Sharia law
is to be employed. So my point that Sharia law is not self-defining still
stands. No?
Yes and no. In the abstract, I think that your point is entirely
FGM is not Islamic at all. It is a cultural phenomenon. It, like the chador
and other cultural things, got linked to Islam over centuries of relative
isolation.
Steve
On Jan 3, 2011, at 9:35 PM, hamilto...@aol.com wrote:
Point of clarification--So genital mutilation is culturally Islamic
If you don't separate religious from civil, the question becomes nonsensical.
Contracts are to enforced under the sharia -- as a matter of religious
obligation.
Separation of religion and state systems is not the only viable system. But it
may well be the best.
If a contract in Saudi Arabia
I am in California for AALS and can't dig out Avitzur; but if I recall
correctly (and please, someone correct me if i am wrong); but I thought that
the case involved in the enforcement of the N Y Get law (which is of dubious
constitutionality) which requires a man who is the moving party in a
The Ketubah at issue in Aviztur provided (in the English version): “[W]e, the
bride and bridegroom * * * hereby agree to recognize the Beth Din of the
Rabbinical Assembly and the Jewish Theological Seminary of America or its duly
appointed representatives, as having authority to counsel us in
Some Conservative rabbis use (or at least in the past used) ketubot that added
the Lieberman clause to the traditional language. See
http://www.ritualwell.org/lifecycles/intimacypartnering/Jewishweddingscommitmentceremonies/sitefolder.2005-06-07.5921979856/LiebermanClause.xml
Avitzur enforced
thanks
--
Paul Finkelman
President William McKinley Distinguished Professor of Law and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, NY 12208-3494
518-445-3386 (o)
518-445-3363 (f)
www.paulfinkelman.com
From: religionlaw-boun...@lists.ucla.edu
A subsidiary of a Saudi government agency (Aramco) entered into
a contract with an American company, having to do with conduct in Saudi Arabia.
I take it that we'd have no problem with a subsidiary of a French government
agency providing that disputes with it would be arbitrated
I'm not sure I quite understand Eric's point. If the contract
says that Muslim arbitrators are to be chosen, but there's a dispute about
who's a Muslim, and the result is that the court can't act, then that's
another way of saying that the contract is not enforceable by the
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