It is no secret the Supreme Court of the United States is both generally hostile to class action lawsuits and gives great deference to arbitration clauses. The use of arbitration clauses is becoming so ubiquitous that the public is beginning to take notice. The New York Times has recently published several great pieces about arbitration clauses:
- Addressing Supreme Court attitudes
- Proposed rule changes from the Consumer Financial Protection Bureau
- A fantastic overview that everyone should read
- Further examples with a focus on the pressures arbitration judges face
Arbitration clauses show the power differentials between the companies that use arbitration to deter lawsuits and the plaintiffs for whom it often becomes financially nonsensical to pursue their claims. Personally, I have reached two general conclusions:
- Forced arbitration is generally bad because those with the most power and influence (corporations) often manipulate outcomes to avoid paying out for the harms they have caused.
- Optional arbitration (i.e. where both parties can choose whether or not to use an arbitrator) can be generally good because it offers a potential option that might help avoid the high costs and time delays often encountered in the court system.
The type of arbitration that I find most interesting is religious arbitration.
Religious persons and groups are legally allowed to have religious arbitration clauses in their contracts permitting disputes to be decided by judges/panels using religious texts and traditions as guides to their decisions. In other words, instead of using established common law, religious arbitrators can use their own interpretations of religious texts to settle disagreements between contracted parties.
I will address the three main contexts of religious arbitration and the appropriateness in each context:
1. Religious disputes
When religious arbitrators are deciding doctrinal disputes, disagreements of hiring/firing clergy, and other related matters that are of a religious nature within a religious community, I think religious arbitration can be a great idea. It formalizes the process for those with divisive religious disputes that cannot be resolved with a conversation and a handshake. For Catholics and Protestants, this would be consistent with St. Paul’s instructions in I Corinthians 6:1-8 to “judge trivial cases” and “disputes” within the religious community instead of using the courts. State and federal courts have no business deciding doctrinal disputes anyway, so religious arbitration has a definite role to play here.
2. Non-religious disputes where parties are essentially forced into religious arbitration
“Non-religious disputes” that religious arbitrators might adjudicate could include fraud, breach of contract, injury liability, wrongful death, employment discrimination, etc.
Sometimes unequal bargaining power means one of the parties did not have an actual choice in agreeing to religious arbitration in the first place. Sometimes religious arbitration is overwhelmingly unfair to one party (like the former Scientologist mentioned in the NY Times). Sometimes religious arbitrators simply make poor decisions that do not comport with the established common law doctrines that we collectively expect will govern society. Thus, there are several limitations that make religious arbitration unwelcome for some parties who are legally required to use it.
Forcing a party into religious arbitration not only limits her from pursuing other adjudicatory forums, it is unacceptably adding a forced religious element. Religious arbitration proceedings are, in my view, religious exercises under religious authority. Requiring a person to participate in a religious exercise under religious authority violates an individual’s right to religious freedom enshrined in the Constitution.
3. Non-religious disputes where parties voluntarily agree to religious arbitration
There is nothing wrong with knowledgeable parties agreeing to use an alternative process to attempt resolving disputes outside of the courts. The availability of religious arbitration for consenting parties is not the problem, but giving the decisions of such arbitrators the force of law is problematic.
- X claims Y owes him one cow.
- X and Y agree to try religious arbitration instead of state or federal court.
- The arbitrator decides the cow should be slaughtered and the meat shared equally between X and Y based on an interpretation of a religious text.
- Y decides not to abide by this decision (perhaps for good reasons).
- X goes to court to have the arbitrator’s judgment enforced against Y.
- The court must decide whether or not to give legal effect to the religious arbiter’s decision.
Y may lose social capital in her community for not abiding by the arbitrator’s decision, but Y should not lose in court based on the religious arbitrator’s decision. Y has the freedom as a citizen to receive a fair legal result from the state and federal court systems no matter what Y’s religion is. If the court forces Y to abide by the religious arbitrator’s decision, then the court is forcing Y to abide by religious authority instead of legal authority. It might be unethical for Y to agree to pursue religious arbitration and then change her mind after losing, but Y’s legal rights should not depend on whether or not she tried religious arbitration first.
The courts should not become the arm of religious interests by upholding the decisions of religious arbitrators. This type of state action raises issues of separating the state sphere and the religious sphere. Because an arbitrator’s decision was made outside the judicial system upon religious grounds, giving judicial effect to the decision is effectuating a religious pronouncement using the court as a mouthpiece of religion. Courts (rightly!) do not decide doctrinal disputes, which clergy members should be hired, or which group interprets scripture better. In the same way, courts should not decide to enforce or extinguish a party’s legal rights based on the decisions of religious arbitrators in proceedings outside of the court.
The law binds courts–not religion. People have the freedom to practice their religion without government interference (including religious arbitration), but asking the courts to give legal effect to a religious judgment goes beyond the proper bounds of the relationship between religion and the state. Giving legal force to a judgment by a religious arbitrator is governmental interference in the religious affairs of the parties involved.
Religious arbitration is at its zenith in disputes of a religious nature. The courts have no business deciding issues of religious doctrine or polity, so arbitrators can fill this role nicely.
Forced religious arbitration (i.e. when one party does not want it) is bad for society: it potentially violates an individual’s free exercise of religion (or, at least, the right to be free from religious authority), and it can limit a party’s right to access state and federal courts.
Parties can legitimately agree to optional religious arbitration, but this should not bind state and federal courts to enforce arbitration decisions. The doctrinal dictates of Christianity, Islam, Judaism, Scientology, The Church of the Flying Spaghetti Monster, or any other group in the generous category of “religion” should not be binding on parties in state and federal courts. Individuals are free to believe what they want to, choose religious arbitration when they want to, and to abide by arbitrator decisions if they want to, but those decisions should not limit the jurisdiction, judgments, or legal role of state and federal courts.