Gamaliel: A Historical Question

[Nathan Oman]

I have a question for those of you who are familiar with early modern, e.g.
16th and 17th century, debates over religious toleration.  Do you know of
any writers that used the story of Gamaliel as a justification for
toleration.  In the NT, Gamaliel is a Pharisee who argues against the
persecution of the early Christians on the grounds that if there work is not
of God it will perish but if it is of God one would be sinning in acting
against it.  Either way, the best course of action is toleration.  (See Acts
5)  I am just wondering if it was every invoked in polemics about religious
toleration.

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
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The End of NY's Kosher Inspectors

[Nathan Oman]

According to the story below, NY has decided to nix its Kosher inspectors as
a way of spending money.  Does anyone know the details (and citation) for
the 2004 case mentioned in the article?  Also, I am wondering what precisely
the inspectors after the decision.  Finally, does anyone know why the
inspectors were set up in the first place?  Why wasn't the issue simply
solved by having private kosher audits by reputable bodies?  The idea of a
state Kosher inspector just seems perverse and unnecessary to me.  What am I
missing?

http://online.wsj.com/article/SB10001424052748704735304576058100916662270.html?mod=WSJ_hps_sections_newyork

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
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Re: May American court appoint only Muslim arbitrators, pursuant toanarbitrat...

[Nathan Oman]

I agree with what Steven says here, but with some additions.  First,
generally foreign law is treated as a question of fact rather than a
question of law.  This means that the courts don't make their own
independent judgment about the content of UK law or the like but are
supposed to take evidence from experts etc.  This means that the question of
religious law must be a question of fact not of religious doctrine.  To give
a concrete example from Islamic law, it is a question of fact whether the
Hanbali school of Islamic jurisprudence allows mut'a marriages (temporary
marriages for a fixed term).  It is NOT a question of fact (or at least a
question of fact that a court can inquire into) whether mut'a marriage is
truly Islamic.  (Shias generally say yes; Sunnis generally say no).  It
seems to me that courts should be free to pass judgment on the first
question but ought to be constitutionally prohibited from passing judgment
on the second question.  Whether a contract referencing Islamic law is
asking the first sort of question or the second sort of question is a matter
of interpretation that depends on the facts of the transaction.  There are,
however, good reasons for supposing that it is pretty unlikely that a
commercial contract involving the application of Saudi law is asking the
second sort of question rather than the first sort of question.

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 Tue, Jan 4, 2011 at 9:44 AM, Steven Jamar  wrote:

> Is "contract law" shorthand?  Or should we spell out all provisions of the
> UCC and common law contract of the particular state?  Or can we just say
> "law of the state of North Carolina"?
>
> If we can say "law of North Carolina" will govern, we can also say "law of
> France" or "law of Saudi Arabia" or "law of the Vatican".  And if one or
> more of those happen to be religious law, that is just what is going on and
> the court must interpret that law, whatever its source or external
> characterization just as it would any other law.
>
> Most legal systems do not require that ridiculous thing called
> "consideration" as part of the contract formation process.  So what?  From
> within any legal system one can determine the existence of non-existence of
> a contract (or judicially enforceable agreement if you prefer).  It doesn't
> matter whether that is the sharia or civil law or any other legal system.
>
> There remain many points of contention about what the law is in the common
> law and even more about how to apply it in a given setting -- even in a
> mature area like contracts.  Same is true in other legal systems.  No big
> deal.  For the commercial contract, the court can figure out what the law is
> and apply it --even if it includes principles analogous to unconscionability
>  as part of the understanding of the contract law.
>
> It is not establishment.  It is not interpreting doctrinal disputes among
> churches with legal consequences -- it is resolving a contract dispute using
> the choice of law of the parties.  End of line.  This is no more
> establishment than is applying any choice of law provision.  Like all choice
> of law provisions, however, the forum state will always be able to ignore
> particular bits of the foreign law that are against public policy in the
> forum state.  that is a universal part of choice of law standards, howsoever
> varied choice of law rules themselves are.
>
> Steve
>
>
> On Jan 4, 2011, at 9:04 AM, hamilto...@aol.com wrote:
>
> t least under existing Establishment Clause doctrine, contracts that
> require religious interpretation (all contracts require interpretation)
> present special problems not present in any other contract.  I think Jones
> v. Wolf is very helpful on these points.  In that case, the Court says that
> neutral principles of law can apply in disputes between believers over
> property, but the Court warns religious organizations to enter into
> contracts that reflect their intent using those neutral principles.  If the
> courts must be arbiters of belief, they may not resolve the property
> dispute.  Same principles apply here.   By keeping courts out of the
> business of interpreting (i.e., determining) religious doctrine, the ends
> you mention are not necessarily disserved.  Rather, commercial contractors
> are required to translate their religious beliefs into neutral rules that
> are then incorporated into the contract.  The interpretation of doctrine is
> therefore done by the individuals, not the courts, and the courts are
> enforcing neutral principles.  The use of "Sharia law" is a shorthand, not a
> necessity.   The defense that having to spell out the principles of Sharia
> law that the parties intend to incorporate requires more words or paper is
> hardly persuasive.
>
>
>
> --
> Prof. Steven D. J

Re: May American court appoint only Muslim arbitrators, pursuant toanarbitrat...

[Nathan Oman]

> I think it important to publicly identify criminal and tortious behavior
> with the religious tradition on which it rests.  Otherwise, we are
> catering to the American societal instinct to whitewash religion to protect
> it from its darker corners.
>

I agree with you in the abstract.  You will notice that I did not deny the
FMG is in some sense Islamic, only that it is compelled by Islamic law as
that term is generally understood.  I have no doubt that Muslim East
Africans who practice FMG see it as a way of avoiding zina (sexual
immorality) even if classical Muslim ulamas have never made this argument
and the claim is denied by many modern Islamic jurists.  It seems to me that
there are two dangers with your preferred strategy.

First, doing it well requires a fairly nuanced understanding of a religious
tradition and this is not something that one often sees in public
discussions of religion.  The widespread belief -- which I take it that you
shared -- that FMG is part of Islamic law and is a widespread Muslim
practice is a case in point.  I agree with you that there is a dangerous
intellectual poverty in a discussion of religion that insists that it can
never have any darker manifestations.  On the other hand, there is a real
risk of perpetuating ignorant stereotypes and this risk rises the more
"foreign" the religion seems, where in functional terms in American society
"foreigness" is defined in terms of one's distance from mainstream
Protestantism.

The second danger is the ease of assuming religious causation.  For example,
one might argue that Islam causes FMG.  Here the issues get even more
complicated.  Clearly Islam does not cause FMG in any absolute sense.  FMG
is practiced by only a tiny minority of the world's billion or so Muslims.
 Also, my understanding is that FMG cuts across religious lines in East
Africa, and is practiced by Muslims, Christians, and animists.  At the same
time, you are likely to see uniquely Islamic manifestations of the practice,
manifestations that are going to be embedded in Islamic narratives about
zina, etc. etc.  A public pose of honestly calling a spade a spade etc.
etc., especially when it is based on only a cursory understanding of the
religious dynamics is likely to simply wash away such nuances and replace it
with a linear story of religion X causes evil Y.  This is especially true
where religion X seems "exotic" and where there are groups such as the media
and the plaintiffs bar that have powerful financial incentives
to propagate simplistic stories.


> At least under existing Establishment Clause doctrine, contracts that
> require religious interpretation (all contracts require interpretation)
> present special problems not present in any other contract.  I think Jones
> v. Wolf is very helpful on these points.  In that case, the Court says that
> neutral principles of law can apply in disputes between believers over
> property, but the Court warns religious organizations to enter into
> contracts that reflect their intent using those neutral principles.  If the
> courts must be arbiters of belief, they may not resolve the property
> dispute.  Same principles apply here.   By keeping courts out of the
> business of interpreting (i.e., determining) religious doctrine, the ends
> you mention are not necessarily disserved.  Rather, commercial contractors
> are required to translate their religious beliefs into neutral rules that
> are then incorporated into the contract.  The interpretation of doctrine is
> therefore done by the individuals, not the courts, and the courts are
> enforcing neutral principles.  The use of "Sharia law" is a shorthand, not a
> necessity.   The defense that having to spell out the principles of Sharia
> law that the parties intend to incorporate requires more words or paper is
> hardly persuasive.
>

I don't have a quarrel with the basic approach in Jones v. Wolf, but I do
think that your approach to contract drafting and interpretation runs
counter to more than a century of development in contract theory and
contract doctrine.  I think that it is fairly widely accepted that in
contract interpretation one of the chief functions of the courts is to
assist the parties in resolving their dispute by seeking to give effect to
their agreed upon terms.  We do this all the time in other contexts, even
when doing so requires that we make inquiries into the the shared meaning of
apparently vague or ambiguous terms.  This is the whole point behind the
modern relaxation of the parole evidence rule or the mirror image rule under
UCC 2-207.  This approach in effect amounts to an ex post subsidy of
contract drafting via the courts.  The alternative is to simply refuse to
interpret terms that aren't crystal clear on their face and require the
parties to bear the costs of increased contract drafting ex ante.  My point
is simply that there is no reason to impose on religious contractors a
greater burden in ex ante drafting than we impose on any ot

Re: May American court appoint only Muslim arbitrators, pursuant toanarbitration agreement?

[Nathan Oman]

On Mon, Jan 3, 2011 at 9:35 PM,  wrote:

> Point of clarification--So genital mutilation is culturally Islamic as
> opposed to theologically Islamic?
>

FMG is not practiced by the vast majority of Muslims and there is nothing in
traditional Islamic law that supports it.  My understanding it is that it is
a practice -- like honor killings -- that is confined to a specific ethnic
group and is practiced despite its formal condemnation by Islamic scholars.
 It is basically an East African tradition, although I wouldn't be surprised
if the Muslim East Africans who practice it see it as connected to their
religion, despite the absence of anything about FMG  in the classical fiqh.

The term "autonomy" really does nothing to further discussions about law and
> religion. It is a code word with more hidden agendas than meanings
>

No hidden agenda in my use of the term "autonomy," or at least no more
hidden agenda than in the use of any other label to refer to a body of
theories and arguments.  I was not offering it up as a theory of law and
religion but as a theory of contract law.  You asked why the state should
enforce religious contracts.  My answer is that the state should enforce
such contracts for the same reason that it enforces any other contract.  Why
should religious contracts be treated differently?  I see no reason that the
kinds of arguments deployed by autonomy theorist of contract (or efficiency
theorists for that matter) cannot be deployed when the contract has a
religious content.  Given how deeply embedded the idea of the law's
agnosticism toward the substantive content of contracts is, it seems to me
that the burden is on those seeking to single some contract out for special
disapproval.  (This is why public policy and unconscionability are defenses
rather than formation requirements.)

In the case of Islamic commercial arbitration, two Muslims are likely to
invoke Islamic law -- if they are Muslim -- because they believe that
western law allows undue exploitation of weak parties and the accumulation
of wealth through immoral means -- e.g. the charging of interest.  They wish
to avoid direct complicity in such practices by having future disputes
governed by what they regard as a more just set of rules.  The state becomes
involved in such arbitration proceedings when one side disputes the scope of
the contract, alleging that the other has not complied with his or her
obligations under it.  The state's involvement at this point is predicated
on the ordinary values associated with the enforcement of contracts.  The
state is not enforcing this contract because it subscribes to the inherent
value of Islamic law any more than the state's enforcement of your lease
covenants has anything to do with the inherent value of restricting dog
ownership in your building.  Rather, the contract is being enforced either
to respect the autonomous choices of citizens in a liberal polity a la
Charles Fried, Randy Barnett, Steven Smith, etc. advance the efficient
allocation of resources a la Richard Crasswell, Richard Posner, Bob Scott,
Alan Schwartz, etc. protect against ex post opprotunism and reliance a la
Grant Gilmore, Patrick Atiyah, etc.  And so on.  My point is simply that
there is nothing special about religious contracts and the fact that the
argument obscures the very fact that they are religious is an attack on our
current system of contract law rather than a truism of law and religion
debates.
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Re: May American court appoint only Muslim arbitrators, pursuant toan arb...

[Nathan Oman]

On Mon, Jan 3, 2011 at 8:52 PM,  wrote:

> Your response requires the agreement to specify which school of Sharia law
> is to be employed.  So my point that Sharia "law" is not self-defining still
> stands. No?
>

Yes and no.  In the abstract, I think that your point is entirely correct.
 In principle the meaning of the term "sharia law" necessarily requires a
deeply religious act of interpretation.  That said, however, words generally
are not used in the abstract.  They certainly are not used in the abstract
within contracts.  (Or at least this is the premise of the century-long
attack on the plain meaning rule by realist and neoclassical contract law in
the 20th century.)  Rather, words are always used within the context of a
particular transaction and a particular contract. As a matter of ordinary
contract interpretation, the term "sharia law" must be construed in light of
the context in which it is used.  Frankly, in almost any contract involving
commercial arbitration it will probably be possible from the context to
determine the body of fiqh that the parties expect to apply.  The content of
that fiqh may then be determined using expert witnesses, just as one would
determine the content of UK law.  Furthermore, it is extremely unlikely that
the parties to such a contract intend for the arbiter to engage in ijtihad
rather than taqlid.  Ijtihad is the kind of thing that really elite jurists,
religious radicals, or semi-mythical geniuses of the past did.  It is not
the sort of thing that one expects from your run of the mill Islamic
arbiter.  It would be really weird to suppose that the drafters of the
contract understood the terms are requiring a deeply religious act of
interpretation.

Let me give an example:  Suppose that a man enters into a contract with
another man in which he promises to pay $10,000 in return for which the
other man promises to convey a parcel of land to "the church."  Now in the
abstract the term "church" is fraught with theological complexities and
difficulties.  Ecclesialogy varies greatly from Christian sect to Christian
sect.  On the other hand, if both men have spent their lives attending the
1st Baptist Church of Hendersonville, Kentucky and they engaged in
negotiations in which the first man said he wanted to purchase the land from
the second man to build an extension to the sanctuary, a court is going to
be able to construe the term "church" without theological pyrotechnics and
without shaking liberal democracy to its foundations.  This is true even
though the term "church" standing alone in the contract doesn't contain any
kind of explicit gloss.  My only point is that rather than exocticizing
Islamic law with a few well chosen examples from the popular press, courts
ought to understand how it gets used in the context of the contract and
transactions they are called on to adjudicate.

>
> Marci
> Sent from my Verizon Wireless BlackBerry
>
> -Original Message-
> From: Nathan Oman 
> Sender: religionlaw-boun...@lists.ucla.edu
> Date: Mon, 3 Jan 2011 20:46:47
> To: Law & Religion issues for Law Academics
> Reply-To: Law & Religion issues for Law Academics <
> religionlaw@lists.ucla.edu>
> Subject: Re: May American court appoint only Muslim arbitrators, pursuant
> to
>an arb...
>
> ___
> To post, send message to Religionlaw@lists.ucla.edu
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Re: May American court appoint only Muslim arbitrators, pursuant toan arbitration agreement?

[Nathan Oman]

>
> First, I assume as a matter of contract law that any obligations arising
> out of such agreements that involve otherwise illegal conduct are void.  So
> genital mutilation, trading of girls as wives (or simply for procreation),
> aiding polygamy, covering up child abuse when it is required to be reported,
> and the settling of debts through indentured servitude are out of the
> picture.
>

This is true regardless of the religious content of the contract, and would
be true regardless of the content of constitutional law.  (Also, it is worth
pointing out that female genital mutilation is not condoned by Islamic law
and is condemned by ulama of the classical fiqh.)


> Second, does commercial arbitration ever involve real property?  If so, we
> are right back in Shelley v Kraemer territory, no?   One of the reasons in
> my view justifying the Shelley result is that such contracts shut out
> minorities for generations to come.  The time lag of the deal is troubling
>

Two points.  First, in most of the commercial arbitrations involving Islamic
law any real estate is located in a foreign country.  Furthermore, the main
point at which these arbitrations are likely to diverge significantly from
western law is in the application of the prohibition on riba, which is
basically usury.  The reality is that this is not going to be a dramatic
show down over FMG or the stoning of adulterers.  It is going to be a
dispute about whether a sale and lease back transaction contains an implied
usurious interest rate or the like.  Second, while I think that there is
some truth to concerns about the long lasting effects of real estate, I
don't think that is ultimately what makes the outcome in Shelly v. Kramer
justifiable is that it involved real rather than personal property.  Rather,
I think that it had everything to do with the history of racial
subordination in this country and the way in which real estate covenants
perpetuated that system of racial subordination.  It makes not sense to me
to try to understand the outcomes in cases like Shelly v. Kramer as applying
some universal principle rather than as a reaction to the particular history
of slavery and its aftermath in the United States.  The normative question,
it seems to me, is whether, in light of American history and our present
circumstances, Islamic arbitration of commercial disputes between two large
corporations that have agreed to the application of Islamic law to their
dispute arising out of a transaction occurring in Saudi Arabia raises
some similar systemic threat to liberal democracy in the United States.
 Frankly, I just don't see it as being remotely analogous to the way in
which Jim Crow undermined the liberal order in the United States.  Indeed,
attempts to equate the two strike me as bizarrely implausible.

Finally, why isn't a liberal society better served by enforcement of such
> agreements within their own universes, which would leave the civil courts
> out?  Religious cultures have plenty of ways to penalize their members
> including excommunication or shunning.  Why are civil courts needed exceopt
> to shore up the power of the religion?
>

I actually think that this makes a great deal of sense, and as I read the
contract at issue in the Texas case it is not at all clear to me that it
actually did contemplate an American court -- as opposed to a Saudi court --
appointing the arbiter.  Hence, as a prudential matter, I think that
religious communities would be best served not trying to heavily enlist the
state in their dispute resolution processes.  That said, it seems to me that
one can involve the state in such contracts on exactly the same basis that
the state is involved in all contracts, namely respecting the independent
choices of its citizens to order their legal affairs as they see fit.  Such
an autonomy justification for contract is essentially agnostic as to the
substantive content of contracts, so long as they do not stray into
illegality or unconscionability.  What matter is not what the parties choose
but that they chose it.

Nate Oman
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Re: May American court appoint only Muslim arbitrators, pursuant to an arb...

[Nathan Oman]

On Mon, Jan 3, 2011 at 7:39 PM,  wrote:

>  Isn't the answer to this question, Eric, that there is no single Sharia
> law?  Interpretation of Sharia "law" requires a court to pick and choose
> between Sharia doctrines.  It is not terribly different from the wide
> variety of Christian interpretations of the Bible.
>

Yes and no.  There is actually a distinction that is made in Islamic law
between sharia and fiqh.  Sharia refers to god's commands as they actually
are.  Fiqh refers to particular interpretations of those laws.  The fiqh of
a particular school of Islamic law may actually be quite fixed and
ascertainable.  Hence, if someone says something like "this contract should
be governed by sharia law as applied in Saudi Arabia" or "sharia law
according to the Habali school" the content of the rules may be pretty
determinate.  Furthermore, if one reads the term "sharia law" within the
entire context of the writing and the contract -- which is how one is
supposed to do contractual interpretation after all -- one may be able to
impute a particular school's fiqh to the term.  (Different schools of fiqh
dominate in different countries and often countries that include sharia law
by reference in legislation refer to particular schools of fiqh.)  Indeed,
Arabic makes a distinction between engaging in original interpretation of
the Quran and other sources of Islamic law -- ijtihad -- and simply
mechanically applying known rules without any interpretation -- taqlid.
 Hence, the analogy to varying Christian interpretations of the Bible is
just that, an analogy.  Depending on the the context, however, determining
the content of "sharia law" may actually be about as mechanical as
determining the content of UK law.

>
> Marci
>
>
> In a message dated 1/3/2011 7:37:08 P.M. Eastern Standard Time,
> erassb...@becketfund.org writes:
>
> e Eugene's other (and I take it primary -- the original post mentioned only
> the Muslim identity of the arbitrators -- ) concern about entanglement, I
> don't see how being knowledgeable about Sharia necessarily implicates belief
> in a religion. I've learned a lot about particular aspects of Sharia
> representing Muslim clients but that is not affected by whether I am a
> Muslim or not.
>
>
>
> ___
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Re: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement?

[Nathan Oman]

>
>   I’m no great fan of the more expansive readings of Shelly.
> But when a government actor is deciding who gets a particular (lucrative)
> position based on that person’s religion, it seems to me that state action
> is eminently present, or more specifically that the government actor is
> discriminating based on religion in presumptive violation of the Free
> Exercise Clause and the First Amendment.  To be sure, the government actor
> isn’t motivated by religious animus; it’s just trying to enforce a
> contract.  But it is still deliberately treating people different from other
> people based on whether they are Muslims or not.  (When the court just
> enforces an arbitration conducted by a private party, there is not such
> discrimination by a government entity, even if the private party
> discriminates based on religion or sex in selecting the arbitrators.)
>

Why say that the government is discriminating on the basis of religion if it
is simply apply neutral principles of contract law.  I understand that there
is a question as to whether the contract can be enforced using merely
neutral principles, but that isn't your argument here.  Rather, I take it
that your objection rests on a non-discrimination principle.  Where is the
discriminatory legal principle at issue?



>
>

>
>   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.
>
>
>
> ___
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Re: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement?

[Nathan Oman]

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  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/S

Re: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement?

[Nathan Oman]

It seems difficult to find an equal protection violation if the Court is
merely enforcing the contract.  It seems to me that a more likely
constitutional objection would be that the contract cannot be enforced
without running afoul of the neutral principles doctrine.  Can a court make
a decision about who is or is not a Muslim without making theological
choices?  Would a shia muslim be acceptable?  A member of the nation of
Islam?

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 10:06 AM, Volokh, Eugene  wrote:

> That’s the issue lurking in *In re Aramco Servs. 
> Co.*,
> now on appeal to the Texas Supreme Court. DynCorp and Aramco Services (both
> of which were at the time Delaware corporations headquartered in Houston,
> though Aramco Services is a subsidiary of Saudi 
> Aramco,
> the Saudi government’s oil company) signed an agreement under which DynCorp
> was to create a computer system (in the U.S.) and install it at Aramco’s
> Saudi facilities. The contract provided that it was to be interpreted under
> Saudi law, and arbitrated under Saudi arbitration rules and regulations.
> Those rules and regulations apparently call for the arbitrators to be Muslim
> Saudi citizens. The trial court, however, appointed a three-arbitrator panel
> consisting of a Muslim (apparently a Saudi) and two non-Muslim non-Saudis.
> Aramco appealed, arguing that (1) under the contract the arbitrators were
> not supposed to be appointed by a court, and, (2) in the alternative, that
> the court erred in appointing non-Muslim non-Saudis.
>
>
>
> The Texas Court of Appeals agreed with Aramco on item 1, and therefore
> didn’t reach item 2. But there is an interesting constitutional issue
> lurking in the background: If a contract does call for a court to appoint
> arbitrators, and provides that the arbitrators must be Muslims (or Jews or
> Catholics or what have you), may a court implement that provision, or does
> the First Amendment or the Equal Protection Clause bar the court — a
> government entity — from discriminating based on religion this way, even
> pursuant to a party agreement?  Any thoughts on this?
>
>
>
> Eugene
>
>
>
> ___
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Re: Federal regulators apparently force bank to take down religioussymbols

[Nathan Oman]

If you step back from the concrete arguments over accommodation or
discrimination claims, I wonder if we have any set of coherent narratives to
tell about the relationship between law, religion, and commercial activity.
 It seems to me that when we talk about the relationship between religion
and the state we have a pretty clear set of relatively coherent positions
with theocracy on one hand and perhaps strict seperationism on the other
hand.  In between we have accomodationism or some sort of support for
religion as of general civic usefulness (I am thinking here of something
like the original establishment in the Massachusetts constitution).

Are we simply transferring these narratives to the commercial context.  That
is do we have some reason for adopting say a strict seperationist stance
when it comes to the issue of "church and market"?  Alternatively, are we
just engaged in some process by which we decide that a given commercial
situation is "state-like" enough to trigger the church-state concerns that
we have in the case of the government?

A pithier way of raising the issue might be to ask whether we have any
unique theories of church-and-market or whether we are simply extending our
theories of church-and-state by analogy into the marketplace.

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 Tue, Dec 21, 2010 at 2:18 PM, Volokh, Eugene  wrote:

>I appreciate Michael's thoughtful and detailed response.  But it
> sounds like his approach, then, is different from Alan's, since Alan
> apparently would treat some such cases as disparate treatment cases (yes?).
>  If so, Alan, what would you think about the Las Cruces, Mogen David, or
> "There Is No God" on uniforms, cars, burger wrappers, and so on?
>
>Eugene
>
> > -Original Message-
> > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> > boun...@lists.ucla.edu] On Behalf Of Michael Masinter
> > Sent: Tuesday, December 21, 2010 11:12 AM
> > To: religionlaw@lists.ucla.edu
> > Subject: RE: Federal regulators apparently force bank to take down
> > religioussymbols
> >
> > As always, Eugene asks good questions.
> >
> > Religious discrimination claims can take several forms -- disparate
> > treatment,  failure to accommodate, and in addition harassment and
> > disparate impact.
> >
> > I am not familiar with any case that treats an employer's mandated
> > expression of religious (dis)belief as disparate treatment since such
> > a rule, uniformly applied to all similarly situated employees, would
> > be disparate treatment only if it were adopted for the purpose of
> > discouraging employees or applicants of a particular faith from
> > applying or continuing to work.  So I would expect any claim relating
> > to compelled expression to arise as a reasonable accommodation claim.
> > I suppose compelled expression could be part of a religious harassment
> > claim, but religious harassment claims are rare given the high burden
> > (severe or pervasive) that claimants face.  Facing that higher burden,
> > a sensible employee or her lawyer would surely prefer a reasonable
> > accommodation claim.  Disparate impact claims raise even more
> > difficult issues respecting classwide impact and preclude recovery of
> > damages, so I wouldn't expect to see one of those either.
> >
> > My sense is that neither the Las Cruces employee nor the Mogen David
> > employee is entitled to an accommodation relating to vehicles or
> > stationery.  The city seal and Mogen David emblem identify the
> > employer; since no reasonable observer would see them as the compelled
> > expression of belief, I'd expect a court to hold that requiring the
> > employer to forego their use at the request of a religious believer
> > would impose an undue hardship on the conduct of the employer's
> > business.
> >
> > It's worth noting that section 702(a) of Title VII exempts religious
> > corporations, associations, and societies from the prohibition against
> > religious discrimination, and therefore from any duty of religious
> > accommodation.  Although courts have struggled to work out a standard
> > for identifying employers entitled to the religious corporation
> > exemption that is both faithful to the intent of its drafters and
> > consistent with the establishment clause, all of the competing
> > standards impose a de facto requirement that the employer be organized
> > as a not for profit business even while insisting that the form of the
> > organization is only part of the analysis.  Townley Engineering lost
> > on its claim to a religious corporation exemption for precisely that
> > reason.
> >
> > Mike
> >
> > Michael R. Masinter  3305 College Avenue
> > Professor of Law Fort Lauderdale, FL 33314
> > Nova Southeaste

Re: A Constitutional right to make pilgrimage

[Nathan Oman]

I tried to find a copy of the complaint online.  Has anyone seen it?  To
second Mr. Stern's suggestion, when I was in practice we successfully sued
the Wisconsin prison system for failing to accomodate Halal diets for
prisoners.  The claim looked dead under Smith, but the prison system was
already accommodating Kosher prisoners, so we won...

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, Dec 13, 2010 at 9:32 PM,  wrote:

> First the suit is probably brought under tile vii and not the constitution.
> The smith standard is inapplicable under that statute.. Second, the
> department will likely argue that the leave policy was administered
> unevenly-say Jews are given leave for passover.
> Sent from my Verizon Wireless BlackBerry
>
> -Original Message-
> From: "Brad Pardee" 
> Sender: religionlaw-boun...@lists.ucla.edu
> Date: Mon, 13 Dec 2010 20:22:50
> To: 
> Reply-To: Law & Religion issues for Law Academics <
> religionlaw@lists.ucla.edu>
> Subject: A Constitutional right to make pilgrimmage
>
> ___
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RE: Catholic Charities Issue

[Nathan Oman]

"I am not sure that we have a mirror here.  Gay people are trying to get out 
from under an oppressive regime the likes of which conservative believers have 
not had to endure - nor are likely to."

This just seems to muddy the issue to me.  Doug's claim is not that gays and 
conservative Christians have suffered comperable levels of oppression, but that 
both should be accord a space in which to work out their visions of the good 
free of collective coercion.  Furthermore, I think that it is a mistake for 
gays -- or any other oppressed minority -- to use the fact of their oppression 
to suggest that they get some sort of free pass on the basic commitments of 
philosophical liberalism, given that they are much more likely to persuade 
those who disagree with them by appeals to liberalism than by attacks upon it.

NBO


--
******
Nathan Oman

"It is a misleading cult that teaches that the remedy of our ills is to have 
the law give over, once and for all, the strivings of the centuries for a 
rational coherence, and sink back in utter weariness to a justice that is the 
flickering reflection of the impulse of the moment."  
  -- Benjamin Cardozo
--
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Re: Missouri declares Christianity its official religion.

[Nathan Oman]

"I wonder how many of them would have the courage of their convictions if that 
were the likely outcome of their little legal-literary exercise."

I suspect that large numbers of them -- or of their fellow travelers -- would 
be willing to suffer legal sanctions for their opinions.  I think that they are 
wrong, but I see no particular reason to suppose that they are insincere.  It 
is always nice to imagine that those we disagree with are also cowards or 
hypocrits, but reality has a nasty way of refusing to script itself as 
precisely the sort of morality play that we might prefer.

NBO

--
******
Nathan Oman

"It is a misleading cult that teaches that the remedy of our ills is to have 
the law give over, once and for all, the strivings of the centuries for a 
rational coherence, and sink back in utter weariness to a justice that is the 
flickering reflection of the impulse of the moment."  
  -- Benjamin Cardozo
--
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RE: From the list custodian RE: Pink Triangles and Religious Liberty

[Nathan Oman]

;> > >
>> > > Steve Sanders
>> > > E-mail:  [EMAIL PROTECTED]
>> > > ___
>> > > To post, send message to Religionlaw@lists.ucla.edu
>> > > To subscribe, unsubscribe, change options, or get password, see
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>> > messages that are
>> > > posted; people can read the Web archives; and list members can
>> > > (rightly or wrongly) forward the messages to others.
>> > 
>> > 
>> > --
>> > Paul Finkelman
>> > Chapman Distinguished Professor of Law
>> > University of Tulsa College of Law
>> > 3120 East 4th Place
>> > Tulsa, OK   74104-3189
>> > 
>> > 918-631-3706 (office)
>> > 918-631-2194 (fax)
>> > 
>> > [EMAIL PROTECTED]
>> > 
>> > 
>> > 
>> > ___
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>> > 
>> > ___
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--

**
Nathan Oman

www.concurringopions.com
www.timesandseasons.org

"It is a misleading cult that teaches that the remedy of our
ills is to have the law give over, once and for all, the 
strivings of the centuries for a rational coherence, and 
sink back in utter weariness to a justice that is the 
flickering reflection of the impulse of the moment."  
  -- Benjamin Cardozo
--
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Re: B'nai Brith Canada wins in landmark supreme court case onreligious freedoms

[Nathan Oman]

Doug,

Was the condiminium corporation at issue here a public housing facility, or does the 
Charter of Rights apply to private actors as well?

Nate Oman

-- Original Message --
From: Douglas Laycock <[EMAIL PROTECTED]>
Reply-To: Law & Religion issues for Law Academics <[EMAIL PROTECTED]>
Date: Thu, 01 Jul 2004 14:45:26 -0500

> This is not my prose, but someone else's press release -- B'nai 
>Brith Canada's I think.  I doubt we could get the same result in many U.S. 
>jurisdictions.
>
>>B'nai Brith Canada wins in landmark supreme court case
>>on religious freedoms
>>
>>FOR IMMEDIATE RELEASE
>>
>>
>>June 30, 2004.
>>
>>MONTREAL - In a landmark ruling, the Supreme Court of Canada has upheld
>>the rights of all Canadians to follow their religious practices without
>>interference by the courts.
>>
>>In what is widely seen as an illustration of this point, the Supreme
>>Court of Canada has ruled that Jewish condominium owners in a Montreal
>>building have the right to set up their own personal Succahs, temporary
>>religious huts that are constructed in celebration of the Jewish holiday
>>of Succot. B'nai Brith Canada's League for Human Rights had intervened
>>in the matter following the initial refusal of the condominium
>>corporation to allow observant Jewish residents to construct individual
>>huts on their own balconies.
>>
>>Allan Adel, National Chair of B'nai Brith's League for Human Rights,
>>reacting to the news, stated: "We are satisfied with the decision of the
>>Supreme Court, which has applied a broad interpretation to the Charter
>>guarantee of freedom of religion and believe it to be in the best
>>interests of all Canadians. The Succah ruling is an important,
>>groundbreaking case that champions the cause of religious freedom in
>>Canada and will have important ramifications well beyond the immediate
>>facts of the case."
>>
>>Montreal lawyer Steven Slimovitch along with B'nai Brith's Senior Legal
>>Counsel David Matas, represented the League before the Court.
>>Slimovitch, acknowledging that he was pleased with the verdict stated:
>>"This decision sets an important precedent for the exercise of sincerely
>>held religious beliefs. The High Court has upheld B'nai Brith's argument
>>that State should not be the final arbiter of religious dogma. Rather,
>>this must be a private matter set by each individual."
>>
>>
>>
>>Established in 1875, B'nai Brith is the Canadian Jewish community's
>>leading human rights agency.
>>
>
>
>
>Douglas Laycock
>University of Texas Law School
>727 E. Dean Keeton St.
>Austin, TX  78705
> 512-232-1341 (voice)
> 512-471-6988 (fax)
> [EMAIL PROTECTED]
>
>___
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--
Nathan Oman

http://www.tutissima.com
http://www.timesandseasons.org
--
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Re: The Merits in Newdow

[Nathan Oman]

The Stevens opinion explains why Neadow lacks standing to assert his daughter's claim 
to be free of government sponsored religion.  However, he doesn't seem to address 
Neadow's personal right not have the state ineffect attack his religious message to 
his daughter.  Did I miss something here? (I freely confess that there may be 
something in the springes of standing law that I am not understanding.)  It seems to 
me that Neadow had two theories of standing and the Court in the Steven's opinion only 
addressed one of them.

-- Original Message --
From: "Marty Lederman" <[EMAIL PROTECTED]>
Reply-To: Law & Religion issues for Law Academics <[EMAIL PROTECTED]>
Date: Mon, 14 Jun 2004 11:56:31 -0400

>The collection of concurrences on the merits are quite interesting.  The Chief's 
>opinion adopts the SG's argument -- darn-near-preposterous, IMHO (and that of Justice 
>Thomas!) -- that the Pledge is OK in schools because "under God" is "not endorsement 
>of any religion," but instead "a simple recognition of the fact [that] '[f]rom the 
>time of our earliest history our peoples and our institutions have reflected the 
>traditional concept that our Nation was founded on a fundamental belief in God.'"  
>
>Justice O'Connor joins the Chief's opinion, but writes separately to suggest that the 
>Pledge in schools is ok only because of a confluence of "four factors" that will 
>virtually never again appear in combination in any other case.  This result derives 
>directly from pages 24-29 of the amicus brief that Doug Laycock wrote:  
>http://goldsteinhowe.com/blog/files/newdow.laycock.pdf.
>
>Justice Thomas concludes -- correctly, in my view, see 
>http://www.goldsteinhowe.com/blog/files/Newdow%20Final%20Brief.pdf -- that if Lee v. 
>Weisman was correctly decided, then public schools may not lead students in daily 
>recitation of the words "under God."  Thomas, however, would overrule Lee.
>
>
>
>- Original Message - 
>From: "Marty Lederman" <[EMAIL PROTECTED]>
>To: "David Cruz" <[EMAIL PROTECTED]>; <[EMAIL PROTECTED]>
>Sent: Monday, June 14, 2004 11:42 AM
>Subject: Links to Newdow Opinions
>
>
>> It appears that those links did not work.  All of the opinions can be found
>> here:
>> 
>> http://supct.law.cornell.edu:8080/supct/html/02-1624.ZS.html
>> 
>
>
>
>

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Re: Religion Clauses question

[Nathan Oman]

Actually it gets even more fun.  Louisiana was a French territory when purchased, but 
for much of its history it was Spainish, so you would need to be able to look at 
Spainish law as well.  Furthermore, the Treaty of Guadalupe Hidalgo contained a 
similar provision with regard to the territory ceded from Mexico under the treaty (CA, 
AZ, NM, NV, CO, UT).  So Spainish and Mexican law would become relevent for those 
states.  French law might then also be important as a source of persuasive authority, 
it being another civil law jurisdiction and all. 

Hence, it turns out that MOST of the geographical area of the United States has a 
submerged civil law substratum of one kind or another.

Nate Oman

-- Original Message --
From: [EMAIL PROTECTED]
Reply-To: Law & Religion issues for Law Academics <[EMAIL PROTECTED]>
Date: Fri, 4 Jun 2004 12:26:49 EDT

>
>In a message dated 6/4/04 7:57:29 AM, [EMAIL PROTECTED] writes:
>
>
>> (except, perhaps, in Louisiana) (since the treaty making final the purchase 
>> of the territory guarantees to the residents of the territory all the rights 
>> they enjoyed prior to the conveyance).
>> 
>
>Jim-
>You would have to say "except, perhaps, in Louisiana and all or part of 
>Missouri, Iowa, North Dakota, Texas, South Dakota, New Mexico, Nebraska, Kansas, 
>Wyoming, Minnesota, Oklahoma, Colorado and Montana."
>Art
>
>
>

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RE: Gay Activists Threaten Church Tax-Exempt Status

[Nathan Oman]

atus." The commission has said it will
>>investigate, but Alliance Defense Fund (ADF) attorney Gary McCaleb said the
>>argument is without merit.
>>
>>"The letter that was sent out by these far-left activists is outrageous,"
>>McCaleb said. "I think it's defamatory, and it's certainly an intolerant
>>effort to suppress free speech."
>>
>>Canyon Pastor B.G. Stumberg said his church is not intimidated. The
>>commission is unable to affect a church's tax-exempt status on its own, but
>>a decision against the church is the first step in stripping a congregation
>>of its tax benefits.
>>
>>"I don't think it's scaring us at all," he said. "It's sort of galvanized
>>us, in one sense, (and) I think everybody's sort of saying, 'OK, let's go.'
>>"
>>
>>The letter was also sent to several hundred other Montana churches, an
>>obvious attempt to make them think twice about addressing the issue of gay
>>marriage. McCaleb said churches should press ahead, anyway.
>>
>>"You certainly don't convert your church into a political committee," he
>>explained, "when you speak out in favor of marriage."
>>
>>The ADF, McCaleb added, would be happy to consult with any church that has
>>questions.
>>
>>Copyright © 2004 Focus on the Family
>>All rights reserved. International copyright secured.
>>(800) A-FAMILY (232-6459)
>>Privacy Policy/Terms of Use
>><http://www.family.org/welcome/aboutfof/a0013445.cfm>  | Reprint Requests
>><http://www.family.org/reprints/>
>>
>>
>>
>>
>>
>>   _
>>
>>
>>
>>
>>___
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>>
>>
>>
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Re: Religion Clauses question

[Nathan Oman]

This discussion puts me in mind of Waldron's observation about the difficulty of 
rights based discourse: Rights purport to be fundamental commitments to which we can 
appeal to neutrally resolve basic disputes, but what counts as a right is precisely 
what people disagree about.

I suspect that those who oppose same sex marriage do so precisely because they don't 
regard same sex marriage as a right (in the Dworkin, rights as trumps meaning).  It 
seems to me that the language of equal rights only becomes useful once one has defined 
what counts as a right and what doesn't count as a right.  However, once one has those 
definitions most of the arguing has been done.

Nate Oman

-- Original Message --
From: Paul Finkelman <[EMAIL PROTECTED]>
Reply-To: [EMAIL PROTECTED],
Date: Thu, 03 Jun 2004 13:17:55 -0500

>Richard: It seems to me that if you oppose rights  for people you can't 
>say you support equal rights.  It is pretty clear to me that this is 
>about fundamental rights.  I absolutely agree with Prof. Beckwith that 
>there should be no need to endorse or agree with people being gay 
>(although the science seems pretty clear that many if not all gay people 
>are born the way they are, so it is sort of like endorsing or not 
>endorsing people being male or female).  One can believe that being gay 
>is immoral; just as one can dislike being around Jews or Moslems or 
>Blacks, or Asians.  But, the issue for those of us interested in law is 
>one of rights and equality.  I think if you deny a huge class of people 
>the right to marry, to raise children, to share in the civil benefits of 
>marriage (such as shared health insurance, right to inherit, right to 
>make end of life decisions for your partner, right to even visit your 
>loved one in the hospital) then you are in fact against equal rights for 
>all people.
>
>I personally would favor the government not marrying anyone -- that is 
>for the clergy; the government should set up regulations for family 
>units; civil unions, and the like. Then let the clergy marry people. 
>But, as long as the government is the "marriage business" it should not 
>be allowed to discriminate unless there is a strong compelling interest; 
>no one on this list has ever offered a compelling interest (or even a 
>rational basis) argument for opposing same sex unions.  The only 
>arguments offer are that it violated God's law (which of course is 
>disputed and truly irrelevant to our legal sysystem) and that it sets a 
>bad example.  Well, we can all think of lots of things that set a bad 
>example.  I think having more children than you can raise sets a bad 
>example; The Catholic Church clearly does not think that is true, or at 
>least does not think it is true enough to support birht control.  I 
>think sixteen year olds set a bad example when they get married, but a 
>number of states disagree.  I think parents who yell at little league 
>umpires set a bad example for their kids; but there are not compelling 
>interests or even a rational basis for banning these sorts of behavior.
>
>Paul Finkelman
>
>Richard Dougherty wrote:
>>>Clearly, however, as you note, you are not advocating disrciminating 
>>>against gay people, and so I welcome you to to fold of many people of 
>>>faith who support equal rights for all Americans!
>>>
>>>Paul Finkelman
>> 
>> 
>> Respectfully, isn't this the kind of point that Prof. Beckwith is getting at?  
>> Opponents of gay "marriages" or "civil unions" are not necessarily opponents of 
>> "equal rights for all Americans."
>> 
>> Richard Dougherty
>> 
>> 
>> ___
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>
>-- 
>Paul Finkelman
>Chapman Distinguished Professor
>University of Tulsa College of Law
>3120 East 4th Place
>Tulsa, Oklahoma  74104-2499
>
>918-631-3706 (office)
>918-631-2194 (fax)
>
>[EMAIL PROTECTED]
>
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Re: Religion Clauses question

[Nathan Oman]

Steve,

I fear that your Mormon informant is either misinformed or inarticulate.  There is no 
formal restriction on blacks holding any position in the Mormon priesthood, nor is 
anyone excluded from any Mormon sacrament or ritual on the basis of race.  It is true 
that no black has ever been a member of the two highest councils of the Mormon Church 
(although there have been black Seventies, which are roughly equivalent to Archbishops 
in the Catholic Church), but there is no reason why in theory a black couldn't become 
a Mormon Apostle or President of the Mormon Church.  As I understand it, it is rather 
like the position of blacks with regard to the Papacy.  There is no reason in theory 
why a black (or an American or a Canadian or a Mexican for that matter) could not be 
elected Pope.  It just so happens that no black (or American or Canadian or Mexican) 
ever has been.

Nate Oman

-- Original Message --
From: Steven Jamar <[EMAIL PROTECTED]>
Reply-To: Law & Religion issues for Law Academics <[EMAIL PROTECTED]>
Date: Tue, 1 Jun 2004 16:46:41 -0400

>Well, as recently as last week a Mormon confirmed this rule since I 
>could not believe it still to be true.  I believe that all they allow 
>is lower level ministers and that blacks are still excluded from the 
>inner portions of the temples.
>
>I do not know this first hand or from any "official" sources - save a 
>practicing Mormon - who might not be aware of the change, if in fact 
>one happened.d
>
>Steve
>
>On Tuesday, June 1, 2004, at 04:18  PM, David Sundwall wrote:
>
>> Just for the record - Blacks are not excluded from the upper ranks of 
>> the Mormon church hiearchy.
>>
>> Up until 1978 black men were excluded from receiving the Mormon 
>> priesthood which effectively excluded them from church leadership.  
>> This is no longer the case.
>>
>>
>> On Tuesday, June 01, 2004, at 03:51PM, Steven Jamar 
>> <[EMAIL PROTECTED]> wrote:
>>
>>> Priests can be just men, right?  Mormons can and do exclude blacks 
>>> from
>>> the upper ranks of the church hierarchy.
>>
>> ___
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>>
>>
>-- 
>Prof. Steven D. Jamar vox:  
>202-806-8017
>Howard University School of Law   fax:  
>202-806-8428
>2900 Van Ness Street NW
>mailto:[EMAIL PROTECTED]
>Washington, DC  20008   
>http://www.law.howard.edu/faculty/pages/jamar
>
>"Our scientific power has outrun our spiritual power. We have guided 
>missiles and misguided man."
>
>- Martin Luther King Jr., "Strength to Love", 1963
>
>
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Re: Religion Clauses question

[Nathan Oman]

The change occured in 1978, which was about ten years after Romeny's presidential bid.

-- Original Message --
From: Paul Finkelman <[EMAIL PROTECTED]>
Reply-To: Law & Religion issues for Law Academics <[EMAIL PROTECTED]>
Date: Tue, 01 Jun 2004 15:22:20 -0500

>I thought that some years ago the LDS church changed its rules on race, 
>I believe that the time that George Romney was running for President.
>
>Paul Finkelman
>
>Steven Jamar wrote:
>
>> Priests can be just men, right?  Mormons can and do exclude blacks 
>> from  the upper ranks of the church hierarchy.
>>
>> Every anti-discrimination law that I have heard of exempts either  
>> religious organizations or certain religious offices (priests,  
>> ministers, certain other religious officials) from the reach of the law.
>>
>> Nonetheless, assuming that a law as unlikely as that posited were to 
>> be  passed, I think a free exercise claim might well work to limit 
>> its  effect to janitors and others not directly involved in the 
>> direct  pastoral work.  (along the same lines as the distinctions are 
>> made now  in statutes).  That is, I think the constitution may limit 
>> the reach of  such a law.
>>
>> As to the latter, I think you would be into free exercise problems  
>> there as well -- ministers can refuse to marry people on any or no  
>> grounds now.  I can't imagine that changing.  Of course I would hope 
>> to  never see the issue arise as a constitutional issue.  I would hope 
>> that  legislators would respect the bounds well enough that it  would 
>> not.   But dumber things are done by our elected officials 
>> regularly.Like  yanking the tax exempt status of a Unitarian 
>> Universalist church in  Texas because of a lack of mandated belief in 
>> god meant that it was not  a proper religion.
>>
>> Steve
>>
>>
>> On Tuesday, June 1, 2004, at 02:07  PM, Volokh, Eugene wrote:
>>
>>> An interesting question from a Weblog,
>>> http://southernappeal.blogspot.com/ 
>>> 2004_05_30_southernappeal_archive.htm
>>> l#108591655546056564; any thoughts about it?
>>>
>>>
>>> [Begin quote]
>>>
>>>  . . . .  Suppose that same-sex marriage (SSM) gets codified into law
>>> (in MA or somewhere else) and the legislature, for whatever reason,
>>> decides that sexual orientation ought to have protected status under  
>>> its
>>> civil rights laws (like race, sex, religion, etc.) Suppose further that
>>> the legislature decides that prejudice against homosexuals is  
>>> widespread
>>> and that something needs to be done beyond the enforcement of
>>> anti-discrimination statutes (that come along with the civil rights
>>> laws). In particular, they decide to pass two laws:
>>>
>>> (1) Any group, organization, etc. that has tax-exempt status shall not
>>> discriminate against homosexuals in hiring, promotion, etc. So a church
>>> that refused to hire a gay pastor could lose! its property tax
>>> exemption, for example.
>>>
>>> (2) Any religious organization that conducts marriages must be willing
>>> to conduct SSMs or its ministers will lose the ability to marry civilly
>>> as well as religiously. A church that refuses to conduct SSMs could
>>> still conduct weddings, but the couples wouldn't be married in the eyes
>>> of the state unless they had a civil ceremony as well.
>>>
>>> So my question: is there any constitutional bar to either (1) or (2)? I
>>> don't mean to say that either law is likely politically or even that
>>> those who favor SSMs are in favor of either (though there are enough
>>> feminist legal scholars running around who would like to yank the
>>> Catholic Church's tax-exempt status because of their male-only
>>> priesthood to make me think that some scholars would certainly advocate
>>> them). I'm just interested in what the law might say about the matter.
>>>
>>> [End quote]
>>> ___
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>>>
>>>
>
>-- 
>Paul Finkelman
>Chapman Distinguished Professor of Law
>University of Tulsa College of Law
>3120 East 4th Place
>Tulsa, OK   74104-3189
>
>918-631-3706 (office)
>918-631-2194 (fax)
>
>[EMAIL PROTECTED]
>
>
>
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Re: Religion Clauses question

[Nathan Oman]

;http://www.law.howard.edu/faculty/pages/jamar
>
>"Years ago my mother used to say to me... 'In this world Elwood' ...  
>She always used to call me Elwood... 'In this world Elwood, you must be  
>Oh So Smart, or Oh So Pleasant.' Well for years I was smart -- I  
>recommend pleasant.  You may quote me." --Elwood P. Dowd
>
>- Mary Chase, "Harvey", 1950
>
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Re: FYI An Interesting Case

[Nathan Oman]

Doug,

I was hoping that "progressive" here would be a neutral phrase.  Perhaps there is a 
better label, I am just not sure what it is.  I don't want to use the word "liberal" 
because I like to reserve that term for philosophical purposes -- e.g. liberal v. 
communitarian -- rather than succomb to its bastardized use in general political 
discussions.

BTW, it seems to me that having the state require an oath and having AT&T require an 
oath are different sorts of things.  The state has more guns than AT&T does.

NBO

-- Original Message --
From: Douglas Laycock <[EMAIL PROTECTED]>
Date: Wed, 07 Apr 2004 14:48:27 -0500

> It is progressive to require people not to discriminate or
>harass.  It is not progressive to require people to swear loyalty oaths or
>swear fealty to other people's values.  The Colorado case appears to be
>about the difference.
>
> In the Pledge case, it is progressives who are opposing such
>coerced oaths of allegiance.  But for too many people on both sides, it
>will always be about whose ox is gored.
>
>At 03:34 PM 4/7/2004 -0400, Nathan Oman wrote:
>
>>This is interesting to me because it is an example of the civil rights
>>laws being used as a weapon against progressive workplace
>>policies.  Richard Epstein and more recently David Bernstein have argued 
>>that civil rights laws present a threat to free exercise rights when they
>>unduly regulate religious employers.  This case seems like the flip side 
>>of this argument, in which the civil rights laws get used as a sword by
>>the religious against voluntary, progressive policies.
>>
>>NBO
>>
>>
>>-- Original Message --
>>From: "Rick Duncan" <[EMAIL PROTECTED]>
>>Reply-To: [EMAIL PROTECTED],
>>Date: Wed, 7 Apr 2004 14:51:44 -0400
>>
>> >Rick Duncan has sent you an article from The Washington Times.
>> >
>> >Rick Duncan's comments:
>> >---
>> >WORKER OPPOSED TO GAYS WINS SUIT
>> >By Amy Fagan
>> >THE WASHINGTON TIMES
>> >---
>> >An AT&T Broadband employee who was fired after refusing to abide by
>> company rules that he said violated his religious beliefs about
>> homosexuality has won a federal court case.
>> >
>> >Judge Marcia S. Krieger of the U.S. District Court for the District
>> of Colorado awarded Albert Buonanno of Denver $146,269 for lost salary, 
>> loss of 401(k) matching contributions and compensation for emotional
>> distress in a Friday ruling released this week.
>> >
>> >The judge found that although there was no direct religious
>> discrimination against Mr. Buonanno, AT&T Broadband failed to show it
>> could not have accommodated Mr. Buonanno's beliefs "without undue
>> hardship" to the company he had been with for nearly two years.
>> >
>> >Mr. Buonanno objected to language in a new employee handbook issued
>> in January 2001 that said "each person at AT&T Broadband is charged with
>> the responsibility to fully recognize, respect and value the differences
>> among all of us," including sexual orientation. He was fired after
>> refusing to sign a "certificate of understanding" acknowledging that he 
>> agreed to the policy.
>> >
>> >The Civil Rights Act requires employers to reasonably accommodate
>> the religious beliefs of employees unless the employer can show it will 
>> create an undue hardship on the company to do so.
>> >
>> >Mr. Buonanno felt his Christian beliefs prevented him from valuing 
>> or agreeing with homosexuality, which he views as a sin, but he pledged 
>> not to discriminate against or harass anyone, said John W. Whitehead,
>> president of the Rutherford Institute, the group that represented Mr. Buonanno.
>> >
>> >"This issue is about more than an objection to homosexuality," Mr. 
>> Whitehead said. "It concerns the freedom of conscience — the right of 
>> individuals to object to something they believe is wrong, especially when
>> it contradicts their religious beliefs, whether it is war, abortion,
>> homosexuality or a number of other issues."
>> >
>> >A spokesman for Comcast, which owns AT&T Broadband, said, the
>> company "is disappointed in the court's ruling," which they said appears
>> to ignore attempts by companies "to fos

RE: FYI An Interesting Case

[Nathan Oman]

t to even reasonably accommodate him," and
>they couldn't show undue hardship would occur if they did.
>
>In the ruling, the judge listed several things the company could
>have done to avoid the situation, such as communicating better, getting
>more details about Mr. Buonanno's concerns, clarifying what the company
>intended by the language in question, accepting his pledge not to
>discriminate, or even rewriting the language to make it less ambiguous.
>
>
>
>
>
>
>
>
>
>---
>This article was mailed from The Washington Times
>(http://www.washingtontimes.com/national/20040407-124312-3261r.htm)
>For more great articles, visit us at http://www.washingtontimes.com
>
>Copyright (c) 2004 News World Communications, Inc. All rights reserved.
>
>___
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Re: FYI An Interesting Case

[Nathan Oman]

nguage in 
> question, accepting his pledge not to discriminate, or even rewriting the language 
> to make it less ambiguous.
>
>
>
>
>
>
>
>
>
>---
>This article was mailed from The Washington Times 
>(http://www.washingtontimes.com/national/20040407-124312-3261r.htm)
>For more great articles, visit us at http://www.washingtontimes.com
>
>Copyright (c) 2004 News World Communications, Inc. All rights reserved.
>
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Re: NRO Article

[Nathan Oman]

For the record: I am not a proponent of including intelligent design or creation 
science in school age text books.  I can't claim to have made any study of the ID 
arguments, but I have it on authority from very religious scientists that I trust that 
they are basically bogus.

So lets grant my position.  ID is bad science and ought not to be taught in the public 
schools as a matter of sound pedagogy.

Does it follow that it is an establishment clause violation.

-- Original Message --
From: Steven Jamar <[EMAIL PROTECTED]>
Reply-To: Law & Religion issues for Law Academics <[EMAIL PROTECTED]>
Date: Mon, 15 Mar 2004 17:44:30 -0500

>I suppose one could point to the failure to examine the premises of 
>Beckwith's book may be one.  Passing off as a scholarly examination 
>something which is really an apologist's essay may be a bit fraudulent. 
>  Sorta like pretending many commentators are in fact reporters.  Though 
>I don't believe that opinions can be fully separated from facts or vice 
>versa, I do think we have an obligation to at least try to make clear 
>what we are doing and why.  That seems to me to be the bigger problem 
>with this polemic.
>
>BTW, while one may believe that intelligent design is not completely 
>excludable as a possibility by evolution theories, that belief does not 
>make it science.  And much of the so-called evidence for intelligent 
>design and supposedly against evolution has in fact been rebutted many 
>times over.  And presenting it as though it were all correct or valid 
>science could be a species of that protean concept of fraud.
>
>Biological science, at least at the pre-college level, is not about 
>philosophical possibilities.  And we ought not require science teachers 
>to enter that minefield more than necessary.
>
>Steve
>
>On Monday, March 15, 2004, at 05:24  PM, [EMAIL PROTECTED] wrote:
>
>> "And let none of the many law professors who are readers of this site 
>> be mistaken: Mr. VanDyke has perpetrated a scholarly fraud, one that 
>> may have political and pedagogical consequences (italics mine)."
>>  
>>  What is the specific fraud that Leiter complains about?
>>  
>>  
>> Bobby
>>  
>>  
>> Robert Justin Lipkin
>> Professor of Law
>> Widener University School of Law
>> Delaware  
>>  
>> ___
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>-- 
>Prof. Steven D. Jamar   vox:  202-806-8017
>Howard University School of Law fax:  202-806-8567
>2900 Van Ness Street NW   mailto:[EMAIL PROTECTED]
>Washington, DC  20008   http://www.law.howard.edu/faculty/pages/jamar/
>
>"The modern trouble is in a low capacity to believe in precepts which 
>restrict and restrain private interests and desires."
>
>Walter Lippmann
>
>
>
>

--
Nathan Oman

http://www.tutissima.com
http://www.timesandseasons.org
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Re: NRO Article

[Nathan Oman]

"Perhaps someone should invite Prof. Beckwith to join this list, and we could discuss 
the issue more directly.  As the NRO author points out, Prof. Leiter is respected in 
his field.  Perhaps he knows what he writes about."

Leiter or Beckwith?

--
Nathan Oman

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http://www.timesandseasons.org
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Law and Revolution II

[Nathan Oman]

Greetings,

It looks like Volume II of Harold J. Berman's LAW AND REVOLUTION has finally been 
published.  Volume I was published about twenty years ago and traced the impact of the 
so-called Investiture Crisis (ie the pope not the king gets to choose the bishops) on 
the foundations of Western legal thinking.  Volume II is supposed to look at the 
impact of the Protestant Reformation.

Has anyone seen the book yet?  Has anyone read it?  Does anyone know if it has been 
reviewed anywhere yet?

Nate Oman

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Nathan Oman
http://goodoman.blogspot.com
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RE: Is UCLA violating the Establishment Clause?

[Nathan Oman]

Have their been cases involving college and university chaplains?  How many 
schools have such things?

At 01:59 PM 1/27/2004 -0500, you wrote:
Doesn't UCLA provide support for chaplains such as office space,
telephone service, secretarial staff and the like?  What does UCLA's
budget look like?  I suspect that you would have to conclude that the
UCLA chaplaincies violate the Establishment Clause if only because of
that financial and material support.
While I don't necessarily buy into Jefferson's thinking on the subject,
wouldn't it be rather dramatic, to say the least, to declare these
chaplaincies unconstitutional?  Wouldn't the public outcry be at least
as great as that that arose in the Pledge of Allegiance case?  (Newdow
loses, in my humble opinion, 5-1/2 to 3/1/2 or thereabouts, largely
depending on how Breyer comes out.  Souter, Ginsburg and Stevens will be
hard-pressed to find a basis for upholding Newdow's position.
Ceremonial Deism is, in hard fact, our national religion, whether
"established" or not.)
There are other aspects of our national experience and tradition and
customs that may be, in some abstract or formalist sense,
unconstitutional, but which the Court will nonetheless uphold.  College
and university chaplaincies will not be tossed out, again, in my humble
opinion.  (There may be good historical reasons to view these
tax-supported college and university chaplaincies as constitutionally
inoffensive, and this is where I tend to come out.  Thus, I think that
religious expression that Eugene originally referred us to is probably
OK.)


-Original Message-
From: Volokh, Eugene [mailto:[EMAIL PROTECTED]
Sent: Tuesday, January 27, 2004 1:04 PM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Is UCLA violating the Establishment Clause?
I'm unaware of any official UCLA chaplaincies (except at the
hospitals, where as I understand it their role is not to express a UC
department's official views).  I would assume that any religious
ministries
selected and operated by public universities would indeed violate the
Establishment Clause.  (Even hospital chaplaincies might raise such
problems, unless they're conducted as an open forum program.)
Naturally, under Rosenberger, a university is free to allow
religious groups, and to let them participate in generally available
funding.  But I can't see how a university department can itself select
a
particular religious viewpoint that it will then endorse and express
itself.
Or am I missing something?
Eugene

Michael Newsom writes:

> How are chaplaincies at UCLA structured?  They don't have to
> have the same structure or status as the LBGT group does, do
> they?  More generally, what would an organizational chart of
> UCLA look like, and where would all of these groups fit in?
>
> And, while we are at it, why aren't campus religious
> ministries in general a violation of the Establishment
> Clause?  (I know about Thomas Jefferson's views regarding
> religion and U Va., but those views are hardly dispositive of
> the question at hand, are they?)  (I am also assuming that
> some or all of the chaplains, with university support and
> resources, are free to indulge in gay-bashing.)
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Re: Is UCLA violating the Establishment Clause?

[Nathan Oman]

It is not clear to me if this is from a student organization or from a part 
of the university.  I am assuming from Eugene's comments that it is from 
the university.

At 08:22 PM 1/26/2004 -0800, you wrote:

The UCLA Lesbian Gay Bisexual Transgender Campus Resource Center 
-- which is apparently part of the UCLA administration, and not just a 
student group -- provides the material copied below, at 
http://www.lgbt.ucla.edu/need_religion.html 
.  I assume that this is pretty clear an Establishment Clause violation, 
since it expresses expressly religious views, endorsing some and 
disapproving of others.  Or am I mistaken on this?

Eugene

Homosexuality and Religion

All of God's promises are intended for every human being, including 
lesbian, gay, bisexual, and transgender people. How tragic it is that many 
religious institutions have excluded and persecuted people who are not 
heterosexual.

We are all created with powerful needs for personal relationships. Our 
quality of life depends upon the love we share with others, whether family 
or friends, partners or peers. Yet lesbian, gay, bisexual, and transgender 
people facing hostile attitudes in society often are denied access to 
healthy relationships. We are called upon to find ultimate meaning in life 
through our spiritual selves as well as our physical and emotional selves, 
which can bring healing and strength to all of our relationships.

"The issues about homosexuality are very complex and not understood by 
most members of" religious organizations, according to Bernard Ramm of the 
American Baptist Seminary of the West. This evangelical authority on 
biblical interpretation says that, "To them, it is a vile form of sexual 
perversion condemned in both the Old and New Testaments." But as Calvin 
Theological Seminary Old Testament scholar Marten H. Woudstra says, "There 
is nothing in the Old Testament that corresponds to homosexuality as we 
understand it today" and as Southern Methodist University New Testament 
Scholar Victor Paul Furnish says, "There is no text on homosexual 
orientation in the Bible." Says Robin Scroggs of Union Seminary, "Biblical 
judgments against homosexuality are not relevant to today's debate. They 
should no longer be used...not because the Bible is not authoritative, but 
simply because it does not address the issues involved...No single New 
testament author considers homosexuality important enough to write his/her 
own sentence about it." Evangelical theologian Helmut Thielicke states, 
"Homosexuality...can be discussed at all only in the framework of that 
freedom which is given to us by the insight that even the New testament 
does not provide us with an evident, normative dictum with regard to this 
question. Even the kind of question which we have arrived at ... must for 
purely historical reasons be alien to the New testament."

Ideas and understandings of sexuality have changed greatly over the 
centuries. People in biblical times did not share our knowledge or customs 
of sexuality; we do not share their

experience. In those days there was no romantic dating as we know it 
today; marriages were arranged by fathers. The ancients, as MIT's David 
Halperin notes "conceived of

'sexuality' in non-sexual terms: what was fundamental to their experience 
of sex was not anything we would regard as essentially sexual. Rather, it 
was something essentially social - namely, the modality of power relations 
that informed and structured the sexual act." In the ancient world, sex 
was "not intrinsically relational or collaborative in character, it is, 
further, a deeply polarizing experience: It serves to divide, to classify, 
and to distribute its participants into distinct and radically dissimilar 
categories. Sex possesses this valence, apparently, because it is 
conceived to center essentially on, and to define itself around, an 
asymmetrical gesture, that of the penetration of the body of one person by 
the body, and specifically, by the phallus, of another ... The proper 
targets of sexual desire include, specifically, women, boys, foreigners, 
and slaves - all of them persons who do not enjoy the same legal and 
political rights and privileges that (the perpetrator) does."

And yet in spite of all this, some preachers continue to use certain 
Biblical verses to foster and maintain discrimination against lesbian, 
gay, bisexual and transgender people. There are two verses that refer to 
male homosexuality - Leviticus 18:22 and 20:13. "Abomination (TO'EBAH) is 
a technical cultic term for what is ritually unclean, such as mixed cloth, 
pork, and intercourse with menstruating women. It's not about a moral or 
ethical issue. This Holiness Code (Chapters 17-22) proscribes men "lying 
the lyings of women." Such mixing of sex roles was thought to be 
polluting. But both Jesus and Paul rejected all such ritual distinctions 
(Mark 7:17-23; Romans 14:14,20). The 

Re: Civil unions and marriage

[Nathan Oman]

Professor Laycock,
It is not clear to me that prior to Henry VIII you had an established
church in England.  Rather, it seems that the Church was claiming to
be a separate sovereign entity beyond the control of the state. 
(Harold Berman makes the interesting argument in _Law & Revolution_
that the western notion of the state actually developed as a kingly
reaction to the church, that is the church was a state before the state
was a state)  Now whether or not we really want to let religious
institutions operate as separate states is probably not a debate that
most people are interested in.  (Who knows, though, it might be
fun!)  However, the pre-Henry VIII legal model can be moderated a
bit, and we might prefer a world in which religious (and other private)
institutions were the primary locus of marriage, and the state was more
or less neutral between these notions.  I take it that this is the
position that you were arguing for: sort of Douglas Laycock as Thomas
More (hopefully you can stay off of the gallows  ;-> ).  This
position has the ironic effect of making religious institutions more
central and powerful, but in ways that are not easily captured by the
dichotomy between establishment v. disestablishment.  It seems to me
that it is precisely because the pre-Henry VIII legal experience didn't
have this dichotomy that it might be worth looking at...
Nate Oman
At 11:34 AM 12/5/2003 -0600, you wrote:
I
do not know the history, but in a nation with an established
church, the unity or entanglement of religious and secular marriage would
have been much less salient.  Assuming marriages outside the church
were possible at common law, I would guess they were quite rare. 
Henry's problem was that he could not remarry without a papal annulment
-- unless he entirely broke with the Pope and changed the whole
system.  He apparently did not believe that he could just get
divorced at common law or by royal prerogative within the existing
system.
At 11:21 AM 12/5/2003 -0600, you wrote:
Greetings,
I actually am sympathetic to Professor Laycock's solution.  It seems
to me that the problems of marriage (at least in our legal tradition)
were created by Henry VIII, when the ecclesiastical courts were made into
an arm of the state.  It makes sense to give marriage back to the
churches and the private sphere, and let the state create some separate
category.  I am curious if anyone knows the history.  How did
marriage operate when the ecclesiastical courts were separate.  Did
the common law have some parallel notion of marriage with the
ecclesiastical courts to handle stuff like the decent of land, etc. 
I remember reading someplace that in medieval law a marriage for purposes
of the common law courts could be formed by simple agreement, but that a
marriage for purposes of the ecclesiastical courts required the sacrament
of marriage celebrated by the church.  The differing court systems
would then give differing remedies depending on what kind of marriage you
had.  Does anyone with more background on this, know if this is
right?

Incidentally, I am still confused as to why civil unions present an
establishment clause issue.  In what sense is religion advanced or
established merely because the government has a policy that makes some
religious citizens happier?  If making a distinction between civil
unions and heterosexual marriage is an unconstitutional establishment,
then it seems that heterosexual marriage itself would be an
unconstitutional establishment.
Nate Oman
At 10:47 AM 12/5/2003 -0600, you wrote:
What
seems to me more plausibly unconstitutional is the state and churches
jointly administering marriage without distinguishing, either in
institution or in vocabulary, the religious relationship (and sacrament,
in some faiths) from the legal relationship.  The better solution
may be civil unions for everybody as the only state recognized
relationship.  Marriage would then be a wholly religious
relationship.  
And they
would be independent of each other.  You could enter into marriage
without a civil union, or vice versa, or you could do both.  And you
could terminate a civil union without terminating the marriage, or vice
versa, or you could do both. 
At 10:38 AM 12/5/2003 -0600, you wrote:
The previously ignorable
entanglement is becoming unpleasantly obvious as the move toward gay
marriage progresses, especially as opponents continually express
themselves in religious terms. (I note that Pres. Bush responded to the
recent Massachusetts case by saying, Marriage is a sacred institution
between a man and a woman. Today's decision of the Massachusetts Supreme
Judicial Court violates this important principle. I will work with
congressional leaders and others to do what is legally necessary to
defend the sanctity of marriage. ) 
Mark seems to be suggesting that it s not accommodation in the
constitutionally permissible sense, but just in the political wisdom
sense: better to proceed by steps, and

Re: Civil unions and marriage

[Nathan Oman]

Greetings,
I actually am sympathetic to Professor Laycock's solution.  It seems
to me that the problems of marriage (at least in our legal tradition)
were created by Henry VIII, when the ecclesiastical courts were made into
an arm of the state.  It makes sense to give marriage back to the
churches and the private sphere, and let the state create some separate
category.  I am curious if anyone knows the history.  How did
marriage operate when the ecclesiastical courts were separate.  Did
the common law have some parallel notion of marriage with the
ecclesiastical courts to handle stuff like the decent of land, etc. 
I remember reading someplace that in medieval law a marriage for purposes
of the common law courts could be formed by simple agreement, but that a
marriage for purposes of the ecclesiastical courts required the sacrament
of marriage celebrated by the church.  The differing court systems
would then give differing remedies depending on what kind of marriage you
had.  Does anyone with more background on this, know if this is
right?
Incidentally, I am still confused as to why civil unions present an
establishment clause issue.  In what sense is religion advanced or
established merely because the government has a policy that makes some
religious citizens happier?  If making a distinction between civil
unions and heterosexual marriage is an unconstitutional establishment,
then it seems that heterosexual marriage itself would be an
unconstitutional establishment.
Nate Oman
At 10:47 AM 12/5/2003 -0600, you wrote:
What
seems to me more plausibly unconstitutional is the state and churches
jointly administering marriage without distinguishing, either in
institution or in vocabulary, the religious relationship (and sacrament,
in some faiths) from the legal relationship.  The better solution
may be civil unions for everybody as the only state recognized
relationship.  Marriage would then be a wholly religious
relationship.  
And they
would be independent of each other.  You could enter into marriage
without a civil union, or vice versa, or you could do both.  And you
could terminate a civil union without terminating the marriage, or vice
versa, or you could do both. 

At 10:38 AM 12/5/2003 -0600, you wrote:
The previously ignorable
entanglement is becoming unpleasantly obvious as the move toward gay
marriage progresses, especially as opponents continually express
themselves in religious terms. (I note that Pres. Bush responded to the
recent Massachusetts case by saying, Marriage is a sacred institution
between a man and a woman. Today's decision of the Massachusetts Supreme
Judicial Court violates this important principle. I will work with
congressional leaders and others to do what is legally necessary to
defend the sanctity of marriage. ) 
Mark seems to be suggesting that it s not accommodation in the
constitutionally permissible sense, but just in the political wisdom
sense: better to proceed by steps, and allow some bit of solace to the
losing side. I think Dean made his unguarded statement because he assumed
the proponents of gay marriage ought to be happy enough, and meanwhile it
was appropriate to show some respect for the feelings of those who might
be quite angry with him for signing the law. I still can t see why it is
not unconstitutional.
Ann

"Mark Graber" <[EMAIL PROTECTED]> wrote:

I think the accommodation problem is this.  For better or (I
think) worse, marriage and marriage law have historically entangled
church and state in ways that are probably inconsistent with my notions
of establishment in the abstract.  Part of what civil unions do is
attempt some disentangling.  Still, given the very long history,
efforts at complete disentanglement seem unwise for the foreseeable
future.  Hence, given people the choice of different forms of unions
seems the best choice given past practice. 
  
Mark A. Graber



>>> [EMAIL PROTECTED] 12/05/03 10:48AM >>> 
Mark raises the question of accommodation of religion, which my
students also raised. My problem with that analysis is this: when have
the courts accepted accommodation when it meant leaving the people to be
accommodated in the position they were already in but burdening someone
else as a way of pleasing them? I don?t think it is like, say, Amos,
where you cut a swath around some traditional freedom as you create a new
right for a group. It seems more like adopting Title VII with a right
against discrimination but requiring different job titles for the people
in groups that had previously been discriminated against so that the
people who had the jobs before the law would not have to feel offended by
the newly entitled persons having the same job. Is there really precedent
for that approach to accommodation? 

(Sorry for the large font, which was apparently contagious. I hadn?t
meant to send it out in that form.)

Ann



"Mark Graber" <[EMAIL PROTECTED]> wrote:

Why not treat this as an historical accommodation of religion. 
We migh

The Next Step After Lawrence

[Nathan Oman]

Tom Green, a much prosecuted Utah polygamists, has invoked Lawrence in
the Utah Supreme Court, arguing that anti-bigamy laws violate due
process.
http://www.newsday.com/news/nationworld/wire/sns-ap-prosecuting-polygamy,0,7999530,print.story?coll=sns-ap-nationworld-headlines
I can't tell much about the procedural posture of the case
from this article, but it looks like it may be interesting. 
Perhaps, Reynolds v. United States will be overturned on other
grounds...
NBO
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