The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
There is a case to be made against religious arbitration. It has five flavors, each with its own approach.
The first can be called "One Law for One People." While it is important for the liberal state to be respectful of cultural diversity, all need to be governed by a single law that none can opt out of, not even by contract. It is necessary for any society to have only a single legal order in which all citizens are bound by and all societal relationships are governed by the same set of norms.
In truth, the "one people, one law" argument presented above is likely the weakest challenge to religious arbitration in the United States. Like it or not, there is not now, nor has there ever really been, only one law of the land in the United States. Unlike many other nations, which have uniform national and local laws, the United States maintains a much deeper commitment to substantive federalism in which there are 50 states, each with its own laws, an overlay of federal law, Indian tribal law and a maddening patchwork of overlapping local codes and regulations at the county, city and town levels. This diversity—which Europeans find maddening—provides Americans with myriad opportunities to choose which kinds of legal regimes they will use to order their lives.
The second criticism is more profound: Religious arbitration produces terrible injustice, both procedural and substantive. (This will be discussed more in the final post, about Islamic law). First, religious norms and values very often include commitments that clash severely with contemporary liberal notions of gender equality, religious liberty, freedom of choice, personal privacy and distributive justice. The much-publicized 2005 ban on religious arbitration in family law enacted in Ontario, Canada, argued that the practice of religious norms through religious arbitration produces substantive injustices to women and other traditionally disadvantaged parties during divorce.
For example, many Christian arbitration organizations explicitly commit themselves to resolving disputes brought before them in accordance with biblical principles. It is not too difficult to imagine, however, how in some Christian arbitrations such principles might clash sharply with contemporary liberal legal commitments in commercial and other contexts. Consider, for example, the case of a Christian-owned bakery, which as part of its standard custom baking contract includes an arbitration clause. After entering such a contract with a customer to bake a cake for a wedding, and just shortly before the cake is scheduled to be delivered, the baker discovers that the wedding will be that of a same-sex couple and refuses to perform under the contract. The customer seeks legal redress for this breach of contract but finds himself in Christian arbitration that applies what it regards as biblical values. Religious arbitrators might find squarely in favor of the baker, holding that no valid agreement could be made to provide support services for a union that contravenes what they view as biblical principles and values.
Opponents of religious arbitration further argue that religious dispute resolution often lacks the kinds of procedural protections necessary to ensure a fair and unbiased arbitration process. Existing arbitration law frameworks provide that parties to arbitration proceedings are entitled to certain basic procedural protections that help ensure the fairness of the proceedings and protect vulnerable parties. These protections include the right to have notice of when and where a hearing will take place; the right to have an attorney present for the proceedings; the right to be heard and present and impeach evidence; the right to a fair and impartial tribunal; and the right to have the tribunal consider relevant evidence. Religious procedural rules fail to provide the kinds of protections for vulnerable parties and even playing fields that we have come to expect from contemporary due process standards. Both traditional Jewish and Islamic law, for instance, maintain formal procedural distinctions between men and women in a number of respects and do not allow women to assume all of the same roles as men in adjudication.
Another concern is the problem of coercion. All arbitration is premised on the parties voluntarily agreeing to submit their dispute to arbitration, but courts have a poor track record of recognizing various forms of pressure exerted by religious communities to get individuals to agree to arbitrate disputes before religious tribunals as legal duress. The ways some well-organized religious groups have dealt with allegations of sexual abuse is illustrative. In many cases, the religious establishments in these communities seek to resolve such matters internally, without involving secular law enforcement authorities. The Catholic Church has used a variety of means to convince alleged victims and whistleblowers to keep such matters within church disciplinary channels. In one headline-making case of alleged sex abuse of a minor girl by an unlicensed community therapist and rabbi, communal leaders enacted numerous measures to punish the victim and her family for handling the matter through the secular criminal-justice system.
Finally, secular enforcement of religious arbitration ultimately involves state coercion to give force to religious arbitration and is thus a serious violation of individuals' right to the free exercise of religion. By recognizing and enforcing religious arbitration agreements and the decisions of religious arbitration tribunals, secular courts compel recalcitrant parties to participate in what are essentially religious practices, or abide by religious norms and values that they may not hold.
Take, for example, the 1999 case of Encore Productions, Inc. v. Promise Keepers, in which a Christian organization that conducts conferences in large venues across the United States entered into a contract with Encore Productions. The agreement included an arbitration clause in front of the Christian Conciliation organization. Encore sued Promise Keepers, which moved to have the action dismissed and sent to Christian arbitration pursuant to the parties' contract. The court rejected the argument made by Encore that compelling it to abide by the Christian arbitration would violate its rights to the free exercise of religion, since it agreed by contract to waive its rights. Encore illustrates what many have noted is a serious challenge to religious freedom posed by secular court enforcement of religious arbitration agreements and awards.
Some argue that societal recognition and enforcement of religious arbitration are problematic because they undermine important interests in assimilation of religious communities into secular society. From a standard liberal perspective, these commenters argue that by permitting religious groups to remain insular and unintegrated into mainstream societal norms, secular enforcement of religious arbitration actually highlights and widens gaps between ordinary members of society and religiously observant "others." Society ought to encourage minority groups and cultures to more fully integrate into a broader societal ethos. Religious isolationism within secular societies, moreover, correlates to a number of serious communal ills (such as the subjugation and oppression of women and children) within religious communities that ought to be discouraged and if possible avoided.
In our next post, we explore the virtues of religious arbitration and set the stage for our final post, on Islamic law's future in America.
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[The guest posts in these series are designed to introduce the reader to the basic issues presented in my book "Sharia Tribunals, Rabbinical Courts, and Christian Panels: Religious Arbitration in America and the West," which is being released this week. I am a law professor at Emory University School of Law and the projects director at its Center for the Study of Law and Religion. For about 20 years, I served as an arbitrator in the Beth Din of America, first as the consultant hired to write the rules that are still used by the BDA, then as the director and then as one of the four standing members of the rabbinical court.
These posts are divided into five: The first explains the rise in religious arbitration and the law governing it. The second explains the evolution of religious arbitration in America, focusing on the Jewish experience, which is the most nuanced and complex in America now. The third, this one, explores the criticisms of religious arbitration, and the fourth will explain its virtues. The final post will explore how this applies to the recent conversation about Islamic courts and what the rabbinical courts can teach Islamic courts about how to conduct religious arbitration.]