Enforcing contracts to submit to religious authority

[Volokh, Eugene]

    Maybe this is so, but I'm not quite sure.  Consider the following:
Say that an actor agrees to star in a movie two years hence.  He then
undergoes a religious conversion, and concludes that participating in
the movie would be against God's will, perhaps because the movie
involves too much sex, nudity, alcohol, irreligion, blasphemy, or what
have you.  I take it we indeed wouldn't order specific performance of
the contract (which in any event would likely yield lousy acting).  But
I assume that there the movie company would indeed get damages.
 
    Now it's true that submitting to religious arbitration might require
that the party participate in the arbitration -- or risk a default
judgment within the arbitral system, which might then be enforced in
civil court.  But this isn't a requirement that the party work in a
particular job, or even to engage in any particular religious ritual
(though I suppose that the arbitral tribunal might be barred from
insisting that the party make any religious oaths or some such).  It's
simply a requirement that they participate in an agreed-on proceeding
that would apply a legal system that they no longer find religiously
authoritative.  Why should they be freed of this requirement, especially
when freeing them of it would mean that the legal system
discriminatorily fails to give force to religious arbitration but does
give force to secular arbitration?
 
    Or here's another way of looking at it:  Say a commercial agreement
provides for arbitration under the law of, say, Saudi Arabia (which
incorporates Muslim law, I'm told to a greater degree than the law of
other countries incorporates religious law), or the law of Israel (which
doubtless indirectly incorporates Jewish or Christian legal norms, but
filtered through the secular legal system).  And say that after the
agreement is entered into but before the dispute arises, the person
develops a religious belief that it is wrong for him to submit to the
law of that foreign country.  (Perhaps he thinks the country is a
representative of the anti-Christ, or is even more un-Godly than the
U.S. is, or some such.)  I take it we wouldn't allow the person to
repudiate the arbitration provision, even though he asserts a sincere
religious objection to complying with the provision.  Why should we
allow the person to repudiate the arbitration provision simply because
his sincere religious objection is to the tribunal's applying religious
law rather than Saudi law or Israeli law?
 
    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 2:47 PM
To: religionlaw at lists.ucla.edu
Subject: Enforcing contracts to submit to religious authority



	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.  

	

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