Thursday, October 21, 2010
Can parties to a contract specify that their obligations will be governed by religious law? UCLA's Eugene Volokh thinks not, relying on a series of cases that prohibit U.S. courts from deciding issues of religious doctrine. He concludes:
And I think this rule is right, even though it does “seem like discrimination against a religion, telling its adherents they are not allowed to specific religious law in their contracts” (or rather like discrimination against religion generally). The alternative, after all, is for courts to take sides in deciding which rival religious view — say, which understanding of Islamic law — is right and which is wrong, which would itself involve discrimination in favor of one religious subgroup (the one whose view is adopted by the civil courts as the true view of Islamic law, Jewish law, etc.) and against another religious subgroup. That strikes me as worse than civil court abstention from all attempts to decide how to interpret religious concepts.
I'm not a constitutional lawyer (thank God) and I'm sure the cases say what he says they say. But this line of reasoning strikes me as unpersuasive. After all, the government is not "discriminating" against anyone when it decides a contract dispute. If the parties specifically agree to have their dispute judged by a government court using Sharia or the Code of Canon Law or (for that matter) the Code of Hammurabi, the law is not inserting itself into religioius affairs. No one except the individual parties will be bound by the decision, and even they are bound only to the degree they agreed to be. Where's the discrimination?
Maybe I'm missing something.