FW from Joel Nichols: Law/Religion list posting on ArchbishopWilliams
VOLOKH at law.ucla.edu
Thu Feb 7 21:15:21 PST 2008
Would allowing enforcement of contractually agreed secular
arbitration, but barring enforcement of contractually agreed religious
arbitration, be constitutional? Or would it violate the Free Exercise
Clause, especially if people argued that they felt a religious command
(or at least religious motivation) to enter into such religious
Joel Nichols writes:
> An interesting question for this list is the extent to which U.S.
> couples could constitutionally choose to allow a religious
> tribunal to decide matters and have that decision enforced by
> the civil court (akin to an arbitral decision under the FAA).
> For any interested, I'm currently leading a project stemming
> from my article mentioned above. The project seeks to
> further the conversation about the jurisdictional boundaries
> of marriage and divorce law in the U.S., with special
> attention to matters such as these. Our current US model
> conceives of a unitary law (albeit in each state, though
> invariably some kind of no-fault divorce) and a unitary
> jurisdictional authority (the civil state).
> These assumptions are neither historically mandated nor the
> sole approach in comparative law -- and thus provide an
> interesting conversation starter.
> Several leading scholars are contributing chapters to a
> forthcoming anthology on this -- on matters ranging from
> constitutional matters, historical and comparative
> international practices, normative concerns (including how
> such decentralized models fit within multicultural theory and
> liberal theory), and practical concerns. Contributors
> include Rick Garnett, John Witte, Brian Bix, Linda McClain,
> Dan Cere, Michael Broyde, Mohammad Fadel, and several others.
> I'd be happy to discuss it further off-list with those interested.
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