JUSTICE, JUSTICE TO THE FAR AND NEAR – THE CASE FOR RELIGIOUS COURTS

December 4th, 2021

In the annals of litigation history, many stories have attached themselves to judicial forms of responsibility under Mr. Mason’s Bill of Rights (1) in the United States. Unfortunately, some have become themes of comedy routines due to the short attention span of most listeners/readers of news bytes. How is it that when followers of the US news media hear about court cases, they mainly remember LGBTQ patrons being refused service for wedding cakes (2), (3), as a defining moment in law? What about major issues couched in events also open to ridicule, like suing a McDonalds’ because you were burned after spilling hot coffee (4), (5), on yourself? What a surprise! Coffee is hot? Ha, Ha, Ha.

Modern systems of justice all harken back to Moses, as the Children of Israel prepared to enter the “Promised Land”. The wise counsel of his father-in-law led Moshe, the sole ‘proprietor’ of the Israelite judiciary, to have more advocates for justice chosen by their respective tribal relations. The move guaranteed immediate access to justice when disputes arose. Delay was believed intolerable (6).

These events took place thousands of years ago. What might possibly have gone wrong with nations, states and territories when all are knowledgeable about matters of personal and civil judgements? Why did basic religious law and contracts have to hide under centuries of convoluted western legalists?

Americans generally hide their light under a bushel. A few of their stories even hold fabled depths that an Aesop would find hard to fathom. The foundation of this new Republic were the sum of known historical events and few frivolous actions have been tolerated by courts of law until the judicial process devolved into an industry (7).

Ideally, there are mores that make lawsuits over contracted services and products largely unnecessary because the basics of the social contract are long established. Few tribal (or merely societal groups), lack an acknowledged body of common law. A product or service plus an offer leads to acceptance or further bargaining in the formation of contracts under civil law. Under religious law, the establishment of contracts doesn’t require a torturously long process allowing lawyers to make $240 per hour.

Justice in business was slowly acquired through the massive ill effects of the industrial revolution to treat labor as nothing more than Israelites making bricks without straw under harsh taskmasters. When labor later tackled issues from workplace safety to minimum wage needs, every aspect of the marketplace was laid bare to the public gaze. Evolution set many employers free from the need to hire union labor when contractual relationships between labor and management became normalized, offering more than minimum wage to the average employee.

However, in matters of justice, simple evidentiary analysis, (civil and criminal), remains under primitive conditions calling for marketplace-type bargaining. Evidentiary proceedings must be transparent to have real effect or even common civil contracts like leases and employment agreements become mere illusions. The replacement of open testimony in courtrooms – as seen in the cases listed below – with sealed settlements ended justice in the majority of states today.

The newspapers made fun of the idea that spilling a hot drink upon yourself entitled you to sue a vendor for the resulting burns. The facts of this case rested on the knowledge that coffee tastes best to consumers when ‘superheated‘. Several business chains pursued this practice to the detriment of an elderly woman. The burns on the body of the plaintiff resulting from an accidental spill included third-degree burns and extensive tissue damage all along the route the spilled water traveled. Surgery was needed to repair the injuries. The public was never warned that the normal boiling point of water had been exceeded to the point of severe danger. The court found in the woman’s favor and humorous labels began to show up on coffee cups to make light of a real safety issue – better taste comes with hazards that must be told.

The case of a Christian baker refusing to cater a wedding and decorate a cake for a gay couple was also a source of controversy. Nonetheless, the tale contains a darker, inner core. The avid pursuit of a tradesperson, who would feel his faith violated by engaging in a particular custom order, is an action taken in bad faith by a customer in search of fame. The refusal of the baker to decorate the offered cake did not ‘cancel’ the rights of men and women to have civil marriage contracts.

The highlighted issue is that civil unions are not religious contracts – the philosophical approach to marriage taken by religious persons. That relegated the engaged couple, in this case, to attempt to commission a meaningful work of art (the cake decorations) rather than the patronage of a baker who offered a cake to a customer. The vendor even offered the needed items to decorate the provided cake to the buyers themselves. Artwork and catering services were believed to be optional services a vendor might feel free to decline in a rite he regarded to lack religious (but not social), significance – the sealing of a marriage contract in public with his personal endorsement.

Marriage contracts are regarded as religious in the Middle East. Even those heterosexual unions are automatically denied a ceremony should the engaged couple hold mixed faiths or lack understanding of their own religious obligations under marital contracts. Pre-marital counseling is generally mandatory to guarantee the parties understand the state of holiness that pertains to the creation of a union of two individuals to create one home and new life.

Couples rejected by clerics for marriage may still marry in nearby countries like Cyprus. In America, gay civil marriage is still available in numerous states and all may be blessed by any willing adult of the couple’s acquaintance. The resulting marriage certificate is still taken seriously as a legal promise and a contract is usually drawn up to permit waivers of privacy so partners might speak for each other in matters of law, medicine and parenthood.

Religion, under the US Constitution, is a freedom and not a right. Rights are granted and may be rescinded but freedom does not ask permission. Business law ought not to be used to turn religious views into expressions of hostile social bias as with the baker. Business licenses fall under the category of rights by nation-states and those terms permitted the cited cases to reach a court. Therefore, a more detailed definition of duties owed by vendors towards their patrons had to be looked at via the ‘social contract’ in addition to commercial law itself. Courts also need to look at the prosecution of a matter to ensure the intent of a plaintiff meets the level of legal action and are not frivolous actions taken to discriminate against the religious. Religious courts always take into account the nature of the person bringing suit.

Marriage does have civil definitions that offer financial advantages to two persons who want to be treated as one. Rather than express an opinion about whether same-sex marriage was desirable or not, the Supreme Court of the USA (8) determined that the definition of marriage would be a task left solely to the States. Federal benefits and responsibilities would then be applicable in the State where the couple resided. Unlike the headlines accompanying the decision, the court did not actually take a stance upon the morality or desirability of same-sex marriage. Their role was appropriately limited to the nature of equal access to federal benefits that are proffered to US citizens under state authorized marriage contract. The Constitution offers no guidance in the matter.

Law was not intended to be exclusionary but neither was it intended to be a cudgel with which to beat citizens over the head and destroy their businesses. Equality among a citizenry does not mean equivalency between/among individuals. Most religions have rules of hospitality where religious law is the majority view. There are also rules for gracious conduct towards permitted minorities. For example, Jewish persons are the smallest minority in the USA and required the right to have a different Sabbath day in workplaces designed for Saturday hours. The right not to work on a Saturday might well keep a Jewish person on a part-time employment basis because sometimes Saturday hours are needed to reach the 30 to 40 hour threshold. This is not the employers’ problem and full-time benefits are not due to the Jewish job applicant. However, in a seven-day establishment, the employer does have a responsibility to adapt worker schedules to Sabbath observers, be the Sabbath day in question a Friday, Saturday or Sunday.

Equal rights are not threatened when the treatment of persons is relegated to religious laws. Instead, disagreements are usually a function of social contracts and secular laws conflict. Contracts of all types are rarely enforceable in such matters, literally due to ‘bad faith’. One party will fail to obtain executed benefits from the signed or verbal contract (9).

This may speak to a need for citizens and residents to add another system to the present one of clogged and biased civil courts. There are well-established religious courts in all major faiths, ready and willing to perform their functions outside of criminal law (still left to ‘Caesar’, so to speak). These forms of civil justice already meet the legal requirements demanded of binding arbitration firms, along with the consent of all participating parties.

A religious venue for civil law becomes a necessity when we look at the intersectionality between religion and State. A baker must be able to refuse to cater a Bar Mitzvah that Mr. O’Shaunessy would like to have performed during a Catholic mass at St. Dominic’s Church. Objections to this scenario aren’t likely because reasonable persons do not mistake Bar Mitzvah ceremonies for Christian rituals. These are undeniably separate, religiously significant events. Marriage is no less a religious event for numerous groups in the world today.

Most persons also fail to realize that a huge amount of business tort law stems from thousands of years of Jewish study and legal reasoning. Therefore, quite a few civil and financial contracts must meet the criteria of religious guidelines and be witnessed by orthodox practitioners of the religion in question in order to be properly adjudicated in case of future disagreement.

Clergy are separately licensed by non-governmental bodies to either bless or adjudicate religious unions. Even divorce is separate between civil and religious legal bodies. The orthodox among the religious world have always chosen to abide by religious statutes without reference to legal arrangements of a purely secular nature. Jewish couples have had pre-nuptial agreements since the dawn of Jewish law that also included the disposition of property should a divorce be undertaken. Catholic law does not allow for divorce so couples marrying before the Church might obtain secular pre-nuptial agreements in the case of legal separation being needed by one or both parties.

Religious requirements do not usually preclude purchasing the requisite licenses required under secular law or prevent the taking of medical tests. Weddings in the USA still require blood tests to rule out sexually transmitted diseases of a serious nature. Also involved in the protection of progeny of multiple marriages. Some religious laws require all children be included in the will of a parent while others may forgo the children of earlier or non-preferred spouses. The financial well-being of children today also might be safeguarded under religious courts to a degree the secular courts don’t recognize.

From the above examples, we see it is far harder for religious persons to obtain justice when living amongst others of secular or humanist backgrounds. Diversity, as found in the US and other highly commercial regions, (e.g. possessed of migrant or refugee communities), looks far different from stable regions defined by a single majority and a smaller minority of identifiable origins and a similar approach to life. The absence of applicable justice systems for the entirety of citizens in an area is the theme of innumerable tomes of fiction and non-fiction. From genocide to lynchings, (and from burned elderly persons to wedding cake art), justice is supposed to be the foundation that led to decrees of ‘freedom’ for religion.

Formerly known only to religious groups, institutions of marriage, public education, rights to self-defense, property ownership and laws of inheritance gradually became possible in mixed and non-religious societies. The Bible reminds us that Moses determined the rights of females to inherit property, an advance that has been hard to match in later legal advances considering that the right of women to vote was delayed until 1922 in America.

Justice is the process that allows for national and/or tribal persistence in the world today. One must have some passing familiarity with the idea of justice in order to acknowledge its absence or its loss. The degree to which you accept persecution is a measure of how long you have lived under any inadequate standard of justice during your tenure on this earth. For this reason, there is a great need for religious courts to exist in all countries where religion is not controlled by the government itself.

Standards for such courts would be applicable to civil law, with criminal cases immediately referred to District Attorneys. For religious communities, civil matters make up the largest proportion of judicial attention because of the habit of self-regulation in behavior that lessens the frequency of criminal behavior.

Unfortunately, the strong division formerly set between criminal and civil cases has eroded. As the definition of civil cases has broadened to include criminal damages or injuries due to vandalism and trespass, the accounting of damage done by one human to another has become even more important. Negligence has always skirted the dividing line because it generally means prior damage has happened that ought to have been avoided (e.g. religious precept of ‘the ox that gores’).

The time has come to admit that religious persons are a minority in the west, despite most citizens claiming descent from one or another group, i.e. ‘’I was raised _______ .” You may fill in the blank with the words, Christian, Moslem, Jewish, Buddhist, Hindu and so forth. Therefore, contracts signed will not reflect the traditions that developed the different approaches to work, the creation of products, engagement in services and the like. Conflicts might be purposefully invented, (e.g. requiring an individual to work on their Sabbath, handle forbidden animal flesh), in order to limit employment options. Landlords might place together persons of incompatible living habits under the guise of “Equal Opportunity”. A belief in freedom and equality does not imply equivalency in all aspects of life’s contracts. It is not disrespectful to refuse to marry outside of one’s faith or for parents to refuse the efforts of teachers in school to promote a majority religion to all students.

We may no longer believe that religious courts are archaic and prejudicial in nature to others. Religious courts have always sought to allow agreements to be created between parties of different natures who agree to share the legal statutes of the judge/lawyer hired to arbitrate. Cut-throat competition is unnecessary when two parties agree to go to a religious court and make agreements that civil law would approve under binding arbitration statutes. There is no need to entertain the pretense that all who enter a court will obtain equal outcomes within the secular world. Secular courts today hide evidence disadvantageous to political bodies and expect to benefit the court officers,rather than the petitioners, before the court itself. Courts have a mystical quality to persons who regard justice as rare and something to be dispensed by licensed professionals. Religious persons know it is dispensed minute by minute in everyday interactions. There is no need to idolize the courtrooms.

Idolatry in all forms is offensive to the individual today and an affront to nations. The Supreme Court and the White House set out seats for highly educated and valued persons. Still, idolizing these persons would take their roles as workers in defined roles and shift those jobs to the realm of the improbable – humans are not capable of such leadership! Leadership is commonplace in all groups dedicated to a purpose, even if that only involves choosing sides for a schoolyard game of baseball.

Judgment is an engagement for all mature individuals who know both the rules of their situation and the righteous path frequently skirted by those who walk alongside them in that situation. Appeal to the original realities of national identity, in addition to advance planning for changing rules and mixed societies, permits justice to be performed in the world today through specialized arbitration emphasizing religious precepts.

The conclusion to be drawn from the above discussion is the need for religious courts to develop in the West and to re-affirm their status as the sole source of justice in the Middle East. There is no reason why a Catholic and a Jewish business owner would be unable to sign a contract in a Jewish court. This would remove issues of standing before state and federal courts, often undergoing changing standards and personnel. Having formulated an agreement acceptable to both secular and religious tents, the contracted members of these businesses would deal fairly with each other. Remedies, in the event of contractual disagreements/failures, would be set forth in advance, the principal of ‘tikkun olam” intended to fix potential flaws of a plan in advance of their occurrence.

Israel is known for applying the first democratic principles in recorded history to the justice system of Jacob’s progeny. In the days preceding the conquest of Canaan, having agreed to the Covenant, Moses was the sole judge dedicated to the arbitration of disputes. His father-in-law, Jethro, pointed out how unfair it was to have the people of Israel lining up all day and night to be heard by only one man. The tribes were then invited to elect/appoint the most qualified among them as judges and the first (religious) court system was born in the Middle East. While these religious laws formed most of the legal framework of future nations, Jewish law is inaccurately recalled by many secularists as ‘an eye for an eye. The reader is reminded that the ‘eye for an eye’ represents monetary damages for injuries.

In fact, the gradual evolution of free markets in Mesopotamia -leading to the necessity of new forms of contract law- was possible only because the residents of the area enjoyed long-running and stable traditions/practices. Civil criminal law had to exist before capitalism might evolve. The West, often confusing economics for law, will have to change or succumb to parodies of its original, constitutional goals.

References

(1) https://www.archives.gov/founding-docs/bill-of-rights-transcript

(2)https://www.washingtonpost.com/politics/courts_law/supreme-court-passes-on-new-case-involving-baker-who-refused-to-make-wedding-cake/2019/06/17/f78c5ae0-7a71-11e9-a5b3-34f3edf1351e_story.html

(3)https://www.google.com/amp/s/amp.theguardian.com/uk-news/2018/oct/10/uk-supreme-court-backs-bakery-that-refused-to-make-gay-wedding-cake

(4) http://www.armchairactivist.us/?p=853

(5)https://www.google.com/amp/s/www.natlawreview.com/article/hot-coffee-case-revisited-has-proximate-cause-changed-25-years-liebeck-v-mcdonald-s%3Famp

(6)https://www.google.com/amp/s/www.myjewishlearning.com/article/yitros-advice/amp/

(7)https://www.google.com/amp/s/www.legalbusinessworld.com/amp/2020/01/20/the-industrialization-of-law

(8)https://www.npr.org/2013/06/26/195956196/supreme-court-extends-gay-marriage-rights-with-two-rulings

(9)https://www.thebalancesmb.com/basics-of-business-contracts-and-agreements-397811

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