I have one more response to Eric's points, though this is one on which
my views are especially tentative, because it relies on a line of cases -- the
Court's peremptory challenge decisions -- the scope of which is uncertain.
The Court has made clear that courts may not allow peremptory strikes
based on the prospective jurors' race or sex, even when the strikes are
exercised by nongovernmental litigants. As I understand it, most lower cases
that have considered whether this principle applies to religion-based strikes
have said that it does apply.
I take it that this would extend even to consensual strikes, for
instance when both the plaintiff and the defendant agree that they will want
only Christian jurors. (I realize that the ease of concealing one's reasons
for a peremptory challenge means that parties would usually do this quietly,
and generally won't be noticed, but let's assume that everyone is being
entirely candid.) So if a judge recognizes that there is such an agreement, he
must forbid such peremptory strikes -- even though acceding to these strikes
would simply involve doing nothing while the parties go along with their
agreement, and would thus not involve any invidious discrimination on the
judge's part.
If that's so, then how it can be permissible for the judge *himself* to
select arbitrators based on the arbitrator's religion, even when that is done
pursuant to the agreement?
I recognize that the jury is a state actor, in a way that the
arbitrator is not. But the *judge* is a state actor. Why may he select
Christian arbitrators when he must affirmatively block attempts to select
Christian jurors?
Eugene
Eric Rassbach writes:
> I had taken Eugene to be saying that even in the absence of a dispute over
> whether a particular arbitrator was Muslim or not, a civil court could not,
> acting
> as an arbitral authority, carry out an arbitral provision appointing a Muslim
> as an
> arbitrator because that would violate the rule against entanglement. Leaving
> to
> one side Eugene's separate objection about discrimination, it sounds like from
> the response below that we are actually in agreement on the following points
> re
> entanglement: (1) if there is a dispute over whether a particular arbitrator
> is
> Muslim or not, then the court cannot act (i.e. it cannot appoint an arbitrator
> over one party's objection) because that would force it to decide a religious
> question; and (2) if there is no dispute over whether a particular arbitrator
> is a
> Muslim, the civil court may enforce the Muslim arbitrator provision because it
> does not have to decide a religious question to do so. Please correct me if I
> am
> wrong about this.
>
> Perhaps the misunderstanding was rooted in what it means to "enforce" a
> contract. I would view a court as "enforcing" a contract when it orders
> performance, even in the absence of any dispute between the parties over how
> it is to be performed. I take Eugene's comment below to mean that what he
> means by "enforce" is what I would call "enforce against".
>
> The other possible reason for the confusion is the extremely unusual (perhaps
> unique) circumstance of a court allowing itself to be appointed a supervising
> arbitral authority pursuant to a private agreement. That means that the court
> is
> actually wearing two hats: the civil court enforcing the contract, and the
> arbitral
> authority working within the rules of the private arbitral agreement. Those
> are
> two different kinds of "enforcement." (And as Mark's and Steve's comments
> have intimated, whatever one thinks about the underlying principles, using
> this
> particular case as a guide to setting public policy would be wrongheaded,
> since
> very few courts are going to allow themselves to be dragooned into arbitration
> work based on a provision in a private contract.)
>
> 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."
>
> Eric
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