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 had arbitrated the dispute, and then one the parties sought to enforce the arbitration award in court. Could the other party defend on the ground that the court was being asked to enforce an arbitration that was infected with unconstitutional religious discrimination?
Frankly, I am skeptical of the equal protection argument here. I don't see how you can get an equal protection violation without doing some sort of Shelly v. Kramer end run around the state action doctrine, and I think that such an end run is both unlikely to succeed and as a normative matter should be done only sparingly. I think that we want to allow people to use the law to create illiberal arrangements, so long as such arrangements don't pose a threat to the basic liberal order. The widespread use of racially restrictive covenants given the American experience with race posed such a threat. I have a hard time seeing that voluntary commercial arbitration under sharia law poses such a threat. Hence, in response to Marci's initial question of what about a contract that called for an arbiter based on race or gender, my default position is to say "No problem. Let people write the contracts that they wish to write." This, however, is only a default. If Marci and other skeptics can tell a sufficiently compelling story about how this particular practice or form of private discrimination threatens the liberal order, then I think that we have a reason for denying enforcement. (I suspect that Marci and I would differ on what constitutes a threat to the liberal order.) Even in these cases, I think that as a doctrinal matter it makes more sense to do this via things like the void as against public policy doctrine under contract law rather than through a convoluted reading of the equal protection clause. I think that the neutral principles doctrine has a bit more traction, although even there I am skeptical. At some point I think that the first amendment is implicated when a court makes religious identifications, but it seems to me that in order for courts to be cognicient of religion in ways that I am assuming are uncontroversial -- such as for purposes of providing free exercise protection or policing establishment clause violations -- courts will have to be able to make religious identifications. It is not clear to me that a contract calling for a Saudi national who is a Muslim will -- as a practical matter -- raise these sorts of problems. A contract calling for "a pious and orthodox Muslim" in contrast, might. Best, NBO ~~~~~~~~~~~~~~~~~~~~~~~~ Nathan B. Oman Associate Professor William & Mary Law School P.O. Box 8795 Williamsburg, VA 23187 (757) 221-3919 "I beseech you, in the bowels of Christ, think it possible you may be mistaken." -Oliver Cromwell On Mon, Jan 3, 2011 at 4:19 PM, Volokh, Eugene <vol...@law.ucla.edu> wrote: > 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 adequately knows Sharia as it is understood > in Saudi Arabia, though I imagine a court would have a pretty difficult time > resolving such matters; it would make much more sense to leave the > appointment of such an arbitrator to a private entity (or to a Saudi > government entity). > > > > There might be a constitutional difficulty – of the > entanglement / religious decisions variety – with a court’s deciding whether > someone adequately knows Sharia as Islamic law as such, for instance if > there’s a dispute about whether a person’s view on a Sharia question shows > ignorance or just shows disagreement about theological matters. > > > > Eugene > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Steven Jamar > *Sent:* Monday, January 03, 2011 12:38 PM > > *To:* Law & Religion issues for Law Academics > *Subject:* Re: May American court appoint only Muslim arbitrators, > pursuant to an arbitration agreement? > > > > 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 vox: 202-806-8017 > > Associate Director, Institute for Intellectual Property and Social Justice > http://iipsj.org > > Howard University School of Law fax: 202-806-8567 > > http://iipsj.com/SDJ/ > > > > > > "Love the pitcher less and the water more." > > > > Sufi Saying > > > > > > > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. >
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
