The Challenge of Religious Arbitration

A recent article in the Economist (“Whose Law Counts Most“) has sparked another round of controversy regarding religious arbitration in the United States.  On the heels of the article, a number of thoughtful blog posts have also grappled with the issue (see, e.g., Volokh, Volokh, and CoOp). 

Abroad, religious arbitration has frequently faced significant opposition (best captured by Premier Dalton McGuinty’s famous 2005 proclamation “There will be no Sharia law in Ontario. There will be no religious arbitration in Ontario. There will be one law for all Ontarians”) although with some exceptions.    By contrast, U.S. courts generally enforce religious arbitration awards just as they would any other arbitration award. 

I’m generally in favor of how hospitable U.S. law is to religious arbitration, enabling parties to have their disputes adjudicated in accordance with shared religious rules and values. There are, however, a number of unique problems posed by religious arbitration – problems that I believe can largely be broken up into four categories. 

(1) Pre-dispute pressure to choose religious arbitration: some religious communities place pressure on parties to sign religious arbitration agreements so as to submit their disputes for adjudication under religious law by religious authorities.  While courts generally do not find such pressure sufficient to void religious arbitration agreements on account of duress, the existence of such pressure may, at times, give us reason to be concerned about the volitional nature of religious arbitration. 

(2) Religious Procedural Rules: While arbitration is often criticized for its lack of procedural rules, religious procedural rules can pose affirmative problems which may give us reasons not to confirm religious arbitration awards.  For example, some religious legal systems bar or limit the admissibility of female testimony.  Also, some religious arbitration tribunals have adopted religious rules which conflict with mandated statutory procedural rules (see, e.g., here).

(3) Conflicts Between Religious Law and U.S. Law: Religious arbitration tribunals may, at times, apply religious law in ways that conflict with protected public policies.  Such circumstances arise in a variety of cases – from conflicts between religious law and anti-trust statutes to attempts by religious tribunals to issue awards regarding child custody – and are generally resolved by courts refusing to enforce the religious arbitration award in question.

(4) Establishment Clause Concerns: While courts have not found that enforcing a religious arbitration award poses Establishment Clause concerns, such conclusions are largely a function of the fact that courts must generally defer to an arbitrator’s factual determinations when deciding whether or not to enforce an arbitration award.  As a result, because courts do not have to reconsider the underlying merits of a case, they typically do not become impermissibly entangled in matters of religious doctrine.  However, to the extent some courts have tried to expand the scope of their review of the underlying merits (see here, which was reversed here) Establishment Clause concerns may become more salient.

The key in thinking through the problems is to recognize that if we value religious arbitration, we must develop legal doctrines that allow courts to filter out the “problematic” religious arbitration awards.  Doing so is quite the challenge given the broad latitude afforded arbitration generally in the United States.  In a subsequent post, I hope to provide my own take on how courts might meet this challenge.