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.edu 954.262.3835 (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 Academics<religionlaw@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
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