April 29, 2011

"People are free to discriminate based on sex, religion, race, and so on in their wills..."

... but what if, instead of specifying how much specific individuals get, the will says to divide things up according to religious law? Is the court supposed to figure out what the religious law requires? Eugene Volokh has a very interesting post about a case in which the court decided that the sons should get twice as much as the daughters because the will said to follow "Islamic Laws and Sharia." Looking at a Supreme Court case from 1968, Volokh thinks the Establishment Clause requires the court to refuse to make such a religious decision. Volokh also thinks "this rule is right..."
...  even though it does make things difficult for religious people who want the religious terms of their wills and contracts enforced. 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...

Fortunately, religious observers who want their disputes settled according to religious law generally have a simple solution: They can provide for arbitration by some religious tribunal that they choose, and courts will generally then enforce the result of that arbitration. Civil courts will no longer be called to decide what Islamic/Jewish/etc. law “really” requires, yet religious believers can have their disputes adjudicated under religious principles.
ADDED: Here's a hypothetical with religion taken out of it. A man has 2 children by 2 different women, who are of 2 different races. The will says that his estate shall go to the child who is racially superior.

39 comments:

Freeman Hunt said...

I think he's right. Our system of law cannot be expected to provide judges specializing in all sorts of private law. The special arbitration is the solution.

Harry Phartz said...

It's good to be the sons.

traditionalguy said...

This does not compute. The Courts enforce the wills...did these religious guys want the court to write the wills for them too?

JAL said...

And if the two parties (or more) disagree with the religious arbitration?

Do they sue in civil court?

raf said...

Re: the hypo.

Since in this country no "race" is "superior" neither son may inherit. The estate goes to the state.

bagoh20 said...

"Racially superior"? What the hell does that even mean. It's a nonsense phrase. The same as if he said give it to the one with the brighter aura, or the stronger chi.

Dust Bunny Queen said...

This is why a good estate plan and a competent planner are important.

To keep the heirs from plucking each other's eyeballs out.

Kirby Olson said...

It's like deciding whether Clapton or Hendrix was the better guitarist. I like it, as long as the judge leaves a clear set of criteria for their preference. Personally, I prefer Clapton because he doesn't wander or attempt to break the song down into its smallest components. He just plays it. Is it defensible however to say that one is superior to the other? Every race has its failings. Hitler was a failure because he thought he was superior. I suppose you could say also that early Malcolm X was inferior to later Malcolm X who had realized that Islam was not about race. Not sure how you can lump a whole race together and decide that one is superior. In what way? In what instance?

But I think in Sunshine of Your Love, Clapton is superior to Hendrix. But Hendrix is so interesting, how he attempts to break the song down and take it further. But the original was actually inspired by Hendrix, by a concert that Bruce and Clapton had seen that is, of Hendrix. Who knows, really.

Flip a coin.

http://www.youtube.com/watch?v=LdoQygfo-SQ&feature=related

Oligonicella said...

As with the other day, the court is not required to entertain imaginary measures.

Freeman Hunt said...

And if the two parties (or more) disagree with the religious arbitration?

Do they sue in civil court?


If they disagreed with the will's provision for religious arbitration, I suppose they would sue in civil court over whether or not there would be religious arbitration.

But if they already agreed to religious arbitration and didn't like the outcome, I suppose they'd have to appeal that within their system of religious arbitration. Or go back and sue against having religious arbitration at all.

But I don't think that our courts should get tangled up in whether or not the religious arbitration was religiously valid. How could we ever determine that?

Best solution: Figure out how to divide it up according to your religion before you die and write that into your will or trust.

(A tiny tip for keeping heirs from fighting: Put the ones you think might get taken advantage of as beneficiaries of your IRA. It's federally controlled, and the rules are strict. Nobody else can touch it.)

edutcher said...

Deciding something like this with Shria would appear to be an Establishment of religion in the true, rather than ACLU, sense of the term.

Ann Althouse said...

Here's a hypothetical with religion taken out of it. A man has 2 children by 2 different women, who are of 2 different races. The will says that his estate shall go to the child who is racially superior.

A similar case was decided in Philadelphia about 50 years ago. A wealthy businessman of the American Revolution, Stephen Girard, endowed a school for orphaned boys, Girard College, in his will with the proceeds of his estate on the condition that no blacks would ever be admitted.

In the mid-60s, the NAACP went to court to have the will overturned to allow blacks. They won.

Paddy O said...

Clearly, the answer is to cut the baby in half and give one half to each of the wives.

Browndog said...

Lawyers-

Making shit up as they go-

Probably not enough billable hours on the planet to properly adjudicate this scenario.

What the hell-

Gotta try....in the name of "justice"

mtrobertsattorney said...

Lets change the hypothetical just a bit: suppose the man leaves his entire estate to his younger son "becuase he is wiser, more moderate, more just and more prudent than his older brother and he has these virtues because of his racial heritage."

If the will did not have those last ten words, there would be no problem in carring out the man's wishes. Does their inclusion change matters? Why so?

ET1492 said...

I don't see a First Amendment issue here. The author of the will is the one who brought religion into the matter and had he been more specific about "Islamic Laws and Sharia" no one would be complaining. The problem is one of clarity, but if the judges thought their was enough detail in the will to make a ruling, then that's ok with me.

My question is, how unclear does a will have to be before the judges can dismiss it and follow intestate laws?

ET1492 said...

there

Fred4Pres said...

I have no problem enforcing wills per the views of the grantor, regardless of how irrational, subjective, racist or biased. It is their money and property. They should be able to give it away as they please.

Fred4Pres said...

And the court can make the parties pay for an expert.

Ron said...

Here's the thing - is such a division of wealth clearly detailed in Sharia Law?

If so, then I don't see the problem - it's no different than saying "the way the characters did it in my favorite book" - if you can go to the book and say "Oh, that's what he meant" then what's the difference?

The 'racially superior' line you tossed-off is a throw-away - unless the person who wrote it also defined it for his purposes, there would be no way to interpret it.

Like the Koran or not - a book that tells you which hand to wipe your ass with is leaving nothing to chance.

- MD

peter hoh said...

re. the hypo: the court declares that it is in no position to determine racial superiority, and splits the estate.

Now, I'm certain that the will could be written to give the probate court fits. For instance, the will could state that if the court cannot find one son to be of a superior race, then the entire estate goes to some charity, or some other such nonsense.

John Burgess said...

While there are different 'flavors' of Shariah law--four Sunni schools, at least two Shi'a schools--I'm not aware of any that do not accept the 'half-share for women' rule of inheritance. Now, national laws, even in so-called 'Islamic states' may not follow Shariah law. Indeed, many have gone to more 'internationalized' law.

The issue here is not really the division of the estate between sons and daughters, but the claim that in contravention to another Shariah law, the testator could not write a legally binding will, under Shariah law, because he was terminally ill when he did so. Over that point, the different schools may differ.

Larvell said...

I think it depends - is he Muslim-racist, or redneck-racist?

AST said...

In the case Volokh describes, appoint an imam as a special master and get a fatwa. That will show how quirky, contradictory and divided Islamic law is. There are a number of legal schools of Sharia law. So simply referring to Islamic Laws and Sharia are insufficient. A mullah from Iran would certainly give you a different opinion from a shariah judge in Malaysia. Since you can't discover the guy's intent, treat him as intestate in this regard. Screw arbitration by Muslim judges. They'd end up excommunicating each other and ordering their mutual executions.

The basic problem with Islam as with most other religions is that there is no central authority, just a bunch of competing scholars, none with a shred of prophecy, all of whom claim to be interpreting and ancient revelation passed to them through a few centuries of oral repetitions and the Hadith, or reports of the sayings and actions of Mohammed and his close associates.

We haven't been able to interpret our own Constitution consistently for less time than the Quran existed only as an oral tradition. Plus they've had over a millennium of common law to muddy their law further. We've been throwing out centuries of our own common law based on recently "discovered" rights that nobody ever imagined before the last 60 or 70 years. What makes us think that Muslims are any more reliable?

As for your hypothesis, same answer, intestacy.

Skyler said...

I recall being taught this in my Wills and Estates class from a case quite some time ago, like in the 19th century. Why has this suddenly become news?

AST said...

Hypothesis: The will instructs the judge to spin a roulette will (oops, I meant "wheel") to determine the distribution. Should the judge oblige the testator/testatrix?

William said...

There's a lot of nepotism that goes around in estate planning.

Revenant said...

While there are different 'flavors' of Shariah law--four Sunni schools, at least two Shi'a schools--I'm not aware of any that do not accept the 'half-share for women' rule of inheritance.

With a billion Muslims out there, I'm better there are at least a few who interpret sharia to mandate that the daughters get ALL the money.

The Grand Inquisitor said...

"The will says that his estate shall go to the child who is racially superior. "

Then he died intestate (pardon me if I spelled that wrong... he died without a valid will).

Such standards are not workable by our system. Same with a 'just follow Sharia' command.

And the lawyer who drafted that shouldn't be a lawyer anymore. And if someone has a will they didn't use a lawyer for, they probably didn't have much to divy up in the first place.

But anyhow, just throw the will in the fire and use state law.

LawGirl said...

The problem here is not the discrimination - people are free to leave things to individuals for any or no reason in their will. They cannot attemo to reach beyond the grave and impose future conditions on the use of the proceeds or the use of what is purchased with them (as with the college referenced above), but as to distribution, it does not matter WHY they chose a certain distribution, as long as it is discernible.

The problem here is that the wording of the will requires the court to get itself entangled within the interpretation of religious texts and tenets in order to discern the decedent's intentions. That does implicate the First Amendment because it requires undue entanglement of our government (here, the court) with a particular religion.

The problem would be similar under various faiths, even if there weren't as many schools as in Islam.

And I don't think the arguement that we are just trying to discern the decedent's intentions, so must only consult his school, solves it because it still requires the court to interpret his school's teachings.

I think the higher courts should send a strong message to those who want to do this in the future to require them to spell out their desires in secular terms - i.e., 1/8 to him, 1/16 to her.

Big Mike said...

@Revenant, I think you're maybe on to something.

He's a hypo. What if the judge ruled that his interpretation of Shariah results in giving all the money to the daughters? Wouldn't that force the Muslim will-writers to be more precise when they sit down with their lawyers?

Texan99 said...

The only question should be whether the court can discern the testator's intent. "Sharia law" doesn't strike me as vague, unless there are lots of controversies under Sharia law of descent that I'm not aware of, in which case the will should specify which Sharia tradition is to be followed. In contrast, the instruction "give it to the son of superior race" is completely vague -- but if the testator specifies some particular eelbrain tradition of racial superiority that gives a clear answer, then that's how the estate should be divided. You know, count up the DNA markers or some fool thing.

The heirs are free to contest the will on the ground of mental incapacity, also a subjective determination. They could make a case that subscribing to eelbrain racist ideology proves insanity.

LawGirl said...

In addition to the First Amendment implications of the government (the court) interpreting religious law, shouldn't the onus be on the testator to make his intent clear and not place on a undue burden on the court to discern it? Of course, there is always interpretation and discernment needed in court (application of law to facts necessarily requires that), but there seems to be a point at which the burden of determining what a the law says (when it is neither state nor federal law, but something else) is too great, and this may be it.

It seems the time may be ripe a canon of testamentary construction along the lines of: "if the court has to waste too much of its time trying to figure out what the heck you wanted because you were unduly unclear [some standard would necessarily need to be set], too bad, so sad, your estate gets divided as if you had died intestate."

Rick67 said...

I studied early Islam a little bit in graduate school. One of my professors (Jewish by the way) specialized in Islamic law.

I am not a fan of radical Islam nor of sharia as often practiced.

*But* Islamic inheritance law is actually pretty cool in some ways. In a nutshell Islamic law specifies that every member of the family gets some minimum portion. "No bequests to an heir". Why is this a good thing? It means that you can't give everything to a favored child or wife. And can't disinherit children or spouse(s) present or past. If Muslim dad leaves mom and shacks up with a young hottie... you and mom will get a minimum defined portion of his estate.

mockmook said...

John Burgess said...

I'm not aware of any that do not accept the 'half-share for women' rule of inheritance.


But, Islamic Law is not LAW.

By whose authority is Sharia Law law?

What if one son (the most devout) declares that he has looked at the Koran and Hadithas and determined that Sharia Law means he should get everything.

Why isn't he an authority of Sharia Law? Why should some Imam in Saudi Arabia have more say?

The court should not try to enforce this vague provision of the will.

mockmook said...

Skyler said...

I recall being taught this in my Wills and Estates class from a case quite some time ago, like in the 19th century. Why has this suddenly become news?


Well, then please enlighten us, the unwashed masses.

What is the "correct" way to dispose of this case?

mariner said...

bagoh20,
"Racially superior"? What the hell does that even mean. It's a nonsense phrase. The same as if he said give it to the one with the brighter aura, or the stronger chi.

Don't be silly.

It means the one with the darkest skin gets the most.

mariner said...

AST,
In the case Volokh describes, appoint an imam as a special master and get a fatwa.

That sounds right.

If I were that judge, I'd be tempted to make sure the special master I appoint came from a different school of Islam that the testator.

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