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 page<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235> Blogs: Prawfsblawg<http://prawfsblawg.blogs.com/> Mirror of Justice<http://www.mirrorofjustice.blogs.com/> Law, Religion, and Ethics<http://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
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