Enforcing contracts to submit to religious authority

[Douglas Laycock]

I'm not sure I can draw a clean line here, but I think there is a difference between a one-time commercial transaction with religious content (publishing Hindu texts) and an agreement to be bound, potentially for life, by the religious law of a faith I reject. 

Submitting to religious arbitration of a faith I no longer believe in is surely not specifically enforceable.  Not because the damage remedy is adequate -- it plainly is not -- but because the intrusion into defendant's private zone of autonomy would be so extreme.  This is similar to why we don't specifically enforce contracts to perform personal services, and last time I looked, why we don't specifically enforce surrogate motherhood contracts. 

So then what are the damages?  The religious harm of being forced to litigate in secular court instead of religious court is not something the secular court can value.  If it is unclear whether the two courts would have produced different results, damages may be speculative.  But if there are two clearly different rules, producing different economic outcomes, the damages may be obvious.  If the female heirs get equal shares instead of half shares, we can calculate that.  Making them pay the difference may be economically equivalent to specific performance, but it's only money, and their autonomy argument gets a whole lot weaker.  Defendants with autonomy-based defenses to specific performance generally do not get an equivalent defense to damages.  But the people who are troubled by these courts on equality grounds will not be any less troubled by a damage judgment.  And I assume that in many of these cases, any damage judgment at all -- even for the extra costs of litigating in secular court -- would be disastrous for the defendant.   

So I think we can not solve this problem in remedial terms.  We have to bite the bullet on the constitutional question:  is it unconstitutional for the government to enforce a long term contract that submits a person to the authority of a particular religion, even if she changes her mind?   

There's actually an analogous issue in the old debt peonage cases.  We don't award specific performance of contracts to labor, but we will award damages.  Most employees can be replaced at the market wage, so the employer can't prove damages.  For employees with unique talents, there aren't many damage cases, and courts generally find the damages too speculative or otherwise wiggle out of enforcing the contract, although they generally will enforce liquidated damage clauses.  Apart from these employees who agree to a specific buyout amount, the rule seems to be no specific performance and the practice seems to be no damages either.   

Quoting "Volokh, Eugene" <VOLOKH at law.ucla.edu>:

>     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
>
>

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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