Let me try to respond to Eric's arguments, in several parts. I'll
discuss the entanglement who-is-a-Muslim? Issue in a separate e-mail, and try
to focus on the discrimination issue here.
1. To begin with, it's not that unlikely to say to a potential
arbitrator, "you aren't Muslim so I am not appointing you arbitrator," if
contracts providing for arbitration by court-appointed Muslim arbitrators can
have that arbitration provision enforced. In fact, this is precisely one of
the arguments that Aramco is making in this very case (in the alternative); the
court appointed two non-Muslims arbitrators, and Aramco is saying this is wrong
(though it's also arguing, in the alternative, that the court shouldn't have
appointed arbitrators itself at all).
2. And if this is done, it still seems to me discrimination by the
government -- the government is treating a person differently because of his
membership in a particular religious group. That this merely involves carrying
out the wishes of a private party may mean the government isn't motivated by
hostility to a particular religion, but it is still discriminating based on
religion. This returns me to the Christian scholarship hypothetical -- Eric,
do you think that a public university may administer a scholarship created by a
private party "for Christian students," by itself giving the money to those
students that it identifies as Christian? (I set aside such a scholarship
being administered by a purely private entity, and focus on a scholarship that
is being administered by the university, albeit distributing private money
pursuant to the private donor's decision.)
3. I don't think it's at all routine for the government to
discriminate this way against individuals based on their religious
affiliations. I don't know, for instance, of how the government does this with
regard to religious corporate activity. I don't think it does this as to
holidays such as Christmas, the governmental observance of which generally does
not involve discrimination against individuals based on their religious
affiliations. "Child custody arrangements" is too broad a category to speak
about in any unified way, so I'd like to hear about a specific example that
would be analogous to the court's appointing a Muslim arbitrator pursuant to a
contract. As to prisoner religious requests, my sense is that prisoners --
unlike the rest of us -- are indeed required to announce their religious
affiliations if they are to benefit from a particular accommodation, but that
is very much an exception to the general religious accommodation rule: That
general rule is tha!
t people who feel a religious obligation to do something (or not do something)
are equally entitled to accommodation regardless of what group they belong to,
and religion-specific accommodations (as opposed to practice-specific
accommodations) are generally unconstitutional.
4. As to Eric's hypotheticals, I don't think there's any problem with
a court's appointing a contractually specified person (the Pope, a particular
Bishop) or a contractually specified entity (some particular organization that
provides Christian or Jewish arbitration), just as there wouldn't be any
problem with a court's appointing a contractually specified nonreligious figure
or a contractually specified nonreligious entity. That does not involve a
court's saying "You're Muslim, you get this, you're not Muslim, you don't"; it
is that selection by a court -- or a public university -- that is generally
unconstitutional.
Eugene
Eric Rassbach writes:
> What remains is Eugene's separate argument that it is discrimination violating
> the First Amendment and the Equal Protection Clause to say to a potential
> arbitrator, you aren't Muslim so I am not appointing you arbitrator, in
> accordance with the parties' agreement (expressed either via contract or
> stipulation). First, I think this fact scenario is pretty unlikely, as it
> requires several
> layers of hypothetical to reach it. But even if it did come to pass, I don't
> think
> this is a very strong point because the government actor is merely carrying
> out
> the wishes of the private parties who are in complete agreement. Government
> actors are allowed to (and routinely do) make distinctions among religious
> groups in accordance with private citizens' undisputed wishes, not just with
> respect to chaplains, but also with respect to prisoner religious requests,
> religious corporate activity, recognition of religious holidays like
> Christmas or
> Diwali, child custody arrangements, etc. Government actors need not deny the
> anthropological/sociological truth that citizens have religious worldviews in
> order to interact with them. It is where those citizens are in a religious
> dispute
> that the government must tread more carefully.
>
> I would still be interested in Eugene's responses to my hypotheticals. What
> about enforcing the parties' choice to appoint the Pope as an arbitrator? Both
> the parties and the court know the Pope to be Catholic. Discrimination?
> Invidious discrimination? Discrimination that violates the First Amendment?
> What about enforcing a contract provision that the parties arbitrate before a
> beis din or a Christian arbitration service? Specifying a specific religious
> arbitration service would seem to be just as "discriminatory" as the Muslim
> arbitrator provision at issue here. What about a corporation sole? Is it
> "discrimination" to recognize Cardinal Mahony as the head of the corporation
> sole the Archdiocese of LA? What if the government ran a free
> arbitration/mediation service along the lines of the AAA? Would it be
> discrimination by a government actor to enforce any of the provisions
> described? I don't think any of these things earn the ambiguous and generally
> pejorative term "discrimination," but if they do it is not
> constitutionally-barred
> "discrimination" but constitutionally-protected "discrimination."
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