Can religious and secular courts exist in the same nation?

[Volokh, Eugene]

    Doug's comments are helpful and thoughtful, as always.  Two brief
follow-ups:
 
    (1)  Secular arbitration is allowed to enforce the law of another
land, for instance if the arbitration agreement provides for arbitration
under the law of some foreign country.  It's hard to see why an
agreement to arbitrate under foreign national law should be different
from an agreement to arbitrate under religious law, at least when a
nongovernment arbitrator is doing the arbitration.
 
    (2)  I certainly agree that people must have a right to change their
religions, but I wonder whether that means that they can repudiate (or
should be allowed to repudiate) agreements once they no longer have
faith in the underlying cause for the agreement.  If, for instance, I
agree to publish Hindu religious texts, but then convert to a religion
that finds it to be blasphemy to participate in such activity, I take it
that I'm not free to breach the agreement.  Perhaps the agreement ought
not be specifically enforceable (and perhaps it wouldn't be even if it
were a secular contract), but at least I'd be liable for damages, no?
And, if so, what's the difference between that agreement, which I'd
still be bound by (on pain of damages), and an agreement to submit
future disputes to religious arbitration?
 
    Eugene


________________________________

	From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Douglas Laycock
	Sent: Wednesday, November 19, 2008 11:37 AM
	To: religionlaw at lists.ucla.edu
	Subject: RE: Can religious and secular courts exist in the same
nation?
	
	

	This argument that voluntary submission to religious courts is
like voluntary submission to arbitration has a lot of force.  And it can
be carried a step further:  arguably it discrimiantes against religion
if agreements to secular arbitration are enforceable and agreements to
religious arbitration are not.

	As against the discrimination argument, there is the response
that secular arbitrators at least purport to be enforcing the law of the
land (even though they often create ad hoc compromises in practice);
religious courts make no pretense of enforcing secular law.  I'm not
sure how far that carries.

	The more serious argument against civil enforcement of judgments
of religious courts is that the right to change one's religion is
fundamental to free exericse.  If I sign a commercial arbitration
agreement at time 1, and object to arbitration at time 2, when a dispute
has actually arisen, I am out of luck.  But if I agree to submit to a
religious court at time 1 (say, when I get married), and I object to the
religious court at time 2, when a dispute has actually arisen, I may
have abandoned the faith in the meantime; I have at the very least
changed my view of religious courts.  If government holds me to my time
1 agreement, government is preventing me from changing my religion.

	This is not a problem if both parties agree, after the dispute
has arisen, to go to the religious court, and if both parties abide by
the judgment.  That is just a mechanism for voluntary dispute
resolution; the government is not involved.  But even in this situation,
if the religious court grants a divorce that the state recognizes, we
have gone beyond voluntary dispute resolution.  

	 

	 

	Quoting "Volokh, Eugene" <VOLOKH at law.ucla.edu>:
	
	>     I'm inclined to say that this is exactly right.  In fact,
the
	> Court's church property and church government cases suggest
that
	> religious arbitration is the only permissible mode for
resolving those
	> cases that require interpretation of religious doctrine.  And
U.S. law
	> has certainly coexisted for decades, if not longer, with
religious
	> arbitration by Beth Dins, Christian arbitration bodies, and a
smaller
	> number of Islamic arbitration bodies.
	>
	>     I was curious, though, about two related questions:  (1)
Does
	> Jewish, Muslim, or Christian religious law, as interpreted by
at least
	> some prominent arbitral bodies, set up rules that are either
	> substantively (e.g., men are favored over women in divorce
settlements,
	> or vice versa) or procedurally (e.g., male witnesses are
treated as more
	> credible than female witnesses, or religiously orthodox
witnesses are
	> treated as more credible than apostate witnesses)
discriminatory based
	> on sex, religion, or ethnicity?  (2)  Is there a generally
applicable
	> principle of arbitration law (both religious and secular) that
declares
	> arbitration awards to be against public policy if they are
based on
	> similarly discriminatory rules?
	>
	>     It may well be that we shouldn't have such a generally
applicable
	> principle of arbitration law, because parties should be free
to waive
	> their nondiscrimination rights, at least in certain kinds of
contexts.
	> But if there such a generally applicable principle, and some
religious
	> arbitral decisions do indeed tend to involve the application
of
	> discriminatory rules, then presumably those decisions would be
	> unenforceable unless some religious exemption is granted from
the
	> arbitration law principle.
	>
	>     Eugene
	>
	> Vance Koven writes:
	>
	>
	>         We've discussed this a bit on the list before, but I
don't see
	> why in principle religious courts should not be treated pretty
much as
	> commercial arbitration is: as a consensual alternative to the
state
	> legal system (with enforcement permissible through the
national courts
	> where required). In all such cases, the national legal system
provides
	> an umbrella of protections, including among other things the
necessity
	> for consent and honesty in obtaining the agreement by which
the parties
	> submit to the alternative jurisdiction.
	>
	>         It should not be an objection in most instances that
the
	> substantive rights of the parties differ from the norms of the
secular
	> courts. There are very few rights, even constitutional ones,
the
	> exercise of which in particular circumstances cannot be
waived. For
	> example, people waive their free speech rights in private
contexts all
	> the time (think of non-disparagement clauses and even
confidentiality
	> agreements, including those attached to litigation settlement
	> agreements); they waive statutory rights such as
nondiscrimination
	> rights and antitrust rights; and so on. Some things cannot be
waived,
	> such as one's right to be free as opposed to enslaved, but of
course
	> this is understood to be a matter of the perpetuity of the
	> arrangement--any employment agreement restricts one's freedom
of action
	> to an extent--and the mechanism for enforcement (prohibition
of contrary
	> employment rather than specific performance). One also is
restricted in
	> waiving rights of third parties (e.g. one's children), which
might
	> create some issues under religious law. Still, the general
principle
	> ought to be that as to the consenting party an agreement to
refer most
	> matters to religious courts ought to be upheld and enforced by
the
	> secular courts.
	>
	>         I frankly don't see what Matthew or Luke (or Mark or
John, for
	> that matter) have to say on the matters quoted below have to
do with the
	> subject.
	>
	>         Vance
	>
	>
	>
	

	 

	Douglas Laycock
	Yale Kamisar Collegiate Professor of Law
	University of Michigan Law School
	625 S. State St.
	Ann Arbor, MI  48109-1215
	  734-647-9713

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