Enforceability of religious contracts, and what constitutes a religious contract that's unenforceable

[Volokh, Eugene]

	I agree that ordering the giving of a Get should generally be
impermissible, because such an action is inherently religious (since its
only significance, albeit not its only indirect effect, is religious).
But I'm not so sure that it should be impermissible if there was an
express agreement to give a Get.  And even if even such express
agreements are unenforceable, I would think that such an
unenforceability rule should be extremely limited, perhaps just to
inherently religious rituals, because one's religiosity shouldn't
entitle one to get out of the deals one has voluntarily made.

	Incidentally, I take it that it's quite common for parties to
enter into agreements that a child be sent to a particular religious
school, and that both parties pay for that.  Such agreements tend to be
entered into on divorce (and may be incorporated into the divorce
order), but I suppose that they could be entered into under other
circumstances as well, for instance if the parents never married and are
trying to establish their rights and duties as to the child.  (I assume
that in a marriage, things are likely to be less formal, and one is more
likely to see just a decision to send the child to the school without a
long-term agreement to that effect.)

	Say that after the agreement is entered into -- for instance, a
couple of years after the divorce -- one of the parties changes his
religion, and now decides that he doesn't want his child going to this
religious school after all.  May he stop paying for the religious school
(so long as he's willing to pay for a secular school)?  I take it he
wouldn't, but how would an agreement to go to a religious arbitration be
any different?  Both paying for a religious school and going to a
religious arbitration are acts that relate to religious activity, but
neither are themselves religious rituals.

	Eugene

> -----Original Message-----
> From: religionlaw-bounces at lists.ucla.edu 
> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Paul 
> Finkelman
> Sent: Thursday, November 20, 2008 6:27 AM
> To: religionlaw at lists.ucla.edu; laycockd at umich.edu
> Subject: RE: Can religious and secular courts exist in the 
> same nation?
> 
> Here is a possible example that supports Doug`s position.  
> There was a case in Illinois some years ago in which a Jewish 
> couple married at an Orthodox synagogue (where the wife`s 
> father attended) but niether was orthodox.  The wife then 
> became orthodox and the changing religious values led to 
> divorce.  She demanded a "Get" (a Jewish divorce) from the 
> Orthodox Bet Din, arguing that their orthodox kettubah 
> (Jewish Marraige Contract which is written in Aramaic which 
> neither husband nor wife could read or understand) required 
> that he give her the Get; he refused, arguing that he did not 
> beleive in Orthodox Jewish rules and so would not 
> participate.  An Illinois Court ordered him to give her the 
> Orthodox Get.  I think the Illinois Court was totally wrong 
> in doing this and that the Kettuhbah does not require that he 
> give her a Get. (I am not in the US now and cannot locate the 
> case, but it is cited in this article: Finkelman, A Bad 
> Marriage:  Jewish Divorce and the First Amendment!
>  , 2 Cardozo Women's Law Journal 131-72 (1995).) But, imagine 
> if he had converted to another faith altogether?  Become a 
> Baptist or Catholic? Could the court order him to go to a 
> Rabbinical Court to participate in a religious/legal ceremony 
> process? 
> 
> Paul Finkelman
> 
> Paul Finkelman
> President William McKinley Distinguished Professor of Law
>      and Public Policy
> Albany Law School
> 80 New Scotland Avenue
> Albany, New York   12208-3494
> 
> 518-445-3386
> pfink at albanylaw.edu
> >>> Douglas Laycock <laycockd at umich.edu> 11/19/08 2:37 PM >>>
> 
> 
> 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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