Contractual Waiver of Const. Rights [Previously: Divorce and rel igious exemptions]

[Scarberry, Mark]

Suppose a famous and very persuasive public speaker (S) signed a contract to
speak exclusively on behalf of the ABC Church for three years, with all
speeches to be approved in advance by the High Poobah of the ABC Church. S
then decides that the ABC religion is false but the XYZ religion is true,
and believes that he has a religious duty to speak publicly on behalf of the
XYZ Church. ABC Church cannot obtain specific performance (requiring S to
speak for it) but can it obtain a prohibitory injunction prohibiting S from
speaking publicly on behalf of the XYZ Church until the end of the three
year period?

ABC Church claims its legal remedy is inadequate--any damage award would be
very speculative and the loss of members to the XYZ Church would harm the
ABC Church in noncompensable ways. ABC Church seeks the injunction just as
the opera impresario sought one against the famous singer in Lumley v. Gye
and just as the San Francisco Warriors sought one against Rick Barry when he
jumped to the American Basketball Association and signed with the Oakland
Oaks.

What result? Is a court prohibited from considering harm to a religious
mission as irreparable?

Mark S. Scarberry
Pepperdine University School of Law
mark.scarberry at pepperdine.edu




-----Original Message-----
From: A.E. Brownstein [mailto:aebrownstein at UCDAVIS.EDU]
Sent: Friday, October 29, 1999 9:32 AM
To: RELIGIONLAW at listserv.ucla.edu
Subject: Re: Divorce and religious exemptions


I wonder if Michael might elaborate on this point. Its not clear to me that
the issue of waiving or contracting away fundamental rights can always be
resolved by a general rule even if one concedes there are some exceptions
to the rule. Maybe the analysis here has to be right specific. I think the
problem is also complicated because some contracts involving the waiver of
one's fundamental rights may be void as against public policy under
contract law. And certainly if the state is a contracting party and
requests the waiver of constitutional rights from individuals contracting
with it,  the state may be imposing unconstitutional conditions on public
benefits.

With regard to Michael's free exercise example involving the pledge of
$1,000,000 to build a new church sanctuary, if the person pledging the
donation changes their religion and now believes that it would be a sin to
contribute to a "false faith," doesn't the enforcement of the pledge raise
any free exercise issue at all. It may well be that protecting the church's
reliance interest in this situation is a sufficiently important state
interest to justify enforcing the pledge.  But I'm not sure the state's
interest in enforcing contract law generally should always outweigh the
individual's interest in obeying the dictates of their faith. Some free
exercise exemptions that impose burdens on third parties still deserve to
be recognized as religious exemptions. If we recognize that an individual's
religious beliefs can change over time and what once seemed permissible is
now recognized to be prohibited conduct, why should the burdens caused by a
breach of contract always justify superseding  the individual's newly
understood religious obligations.

         Freedom of the press may be different because the individual's
interest may not change over time in the same way that freedom of
conscience and religious liberty may vary with the individual's beliefs.

                                                                 Alan
Brownstein
                                                                 UC Davis

At 07:37 AM 10/29/1999 -0700, you wrote:
>Marty Lederman asks:
>
> > In response to Eugene's question "What if a person develops religious
> scruples against
> > conforming to the original terms of the marriage agreement?," Michael
> McConnell answers:  "I agree with Eugene that free exercise cannot trump
> contracts, any more than can freedom of the press or fre>
> > A clarifying question for Prof. McConnell:  Do you mean "free exercise"
> under Smith, or "free exercise" under Sherbert/Yoder/RFRA?  If the
> latter, why *couldn't* the free exercise claim "trump," assu>
>
>Certainly under Smith the requirement of complying with contracts
>would appear to be neutral and generally applicable. See Cohen v.
>Cowles Media.  (Cowles was a case in which a newspaper promised a
>source that it would not divulge his name, and then did, and got
>sued. The newspaper claimed a free press right to publish whatever it
>wants, but the Court held that it was bound by its contract.)
>
>But I think the same result obtains under Sherbert/Yoder/RFRA.  This
>is not a special rule for free exercise, but a general rule: people
>can "exercise" their constitutional rights by trading them away for
>valuable consideration. I waive my right to a jury trial in exchange
>for a deal with the prosecutor. I waive my Fourth Amendment right in
>hopes that the police will realize there is no contraband in my house
>and leave me alone. There are exceptions (I cannot bargain away my
>8th amendment right against cruel and unusual punishment) but free
>exercise is not, I think, among the exceptions. Giving money to my
>church is an exercise of religion; but if I promise to give my church
>$1,000,000 if they will build a new sanctuary, and they build the
>sanctuary, my promise becomes enforceable, even if I have changed my
>mind.
>
>The freedom to commit yourself (i.e. to sign contracts) is not
>properly viewed as an "exception" to free exercise (or other
>constitutional rights), but as a way of exercising the right.
>
>
>-- Michael McConnell (U of Utah)