This article was written by guest author Nick Walter. Mr. Walter is a 2012 J.D. candidate at Yale Law School, and Executive Editor of the Yale Law Journal. This blog post is based on his article, The Status of Religious Arbitration in the United States and Canada, which will appear in 52 Santa Clara L. Rev. (forthcoming Jan. 2012).
Arbitration is a popular form of dispute resolution. It is effective, too: in the United States and Canada, arbitral agreements and awards can be enforced in court.[i] This includes religious arbitration agreements—arbitration proceedings that are conducted before religious tribunals, or in accordance with religious principles.
Religious arbitration from time to time appears in the news, often in relation to some kind of controversy. In Ontario in 2006, the premier, Dalton McGuinty, declared that all binding “religious arbitration” would be banned in the province.[ii] In Oklahoma, a referendum in 2010 amended the state constitution to prohibit the use of Sharia law in state courts, only to have the amendment enjoined by a judge.[iii] A state representative later introduced a bill that would ban the use of any non-secular source of law, and make religious arbitration unenforceable, although the bill died in Senate committee.[iv]
Religious arbitration has been attacked for two reasons. First, many provisions of religious law seem incompatible with modern Western civil law, and to place burdens on vulnerable groups, particularly women. For example, the division of an estate under Islamic law provides twice as much for a son as for a daughter.[v] Judgments that are based on such principles might be unenforceable as being “against public policy,” but they still cause concern. Second, the enforcement of religious arbitral awards in secular courts appears to create the impression that there exists a parallel legal system, operating outside of accepted secular norms. Indeed, Premier McGuinty declared that “[t]here will be one law for all Ontarians” in announcing the ban on religious arbitration.[vi]
However, religious arbitration presents another problem: freedom of religion. What happens if one party agrees to an enforceable religious arbitration process, but later leaves that religion? Should they be forced to participate in a legally binding process that is based on the principles of a faith that they do not follow, or do not wish to recognize? Put in its strongest possible form: is it possible to contract away freedom of religion?
American and Canadian cases have come close to discussing this problem. In Encore Productions v. Promise Keepers, a district court noted, but declined to answer, the question of whether a religious arbitration agreement violated the First Amendment.[vii] In Marcovitz v. Bruker, the Canadian supreme court awarded damages when one party broke a contractual promise to appear before a Jewish tribunal, a beth din.[viii] However, the Marcovitz court was not faced with the question of whether it should also grant specific performance. If it had had to answer this question, it might have reached a different conclusion.[ix]
Religious freedom is fundamental to our society: Madison termed it “inalienable,”[x] and it is enshrined in the Free Exercise Clause of the First Amendment.[xi] The Canadian constitution defines “freedom of conscience and religion” as a fundamental freedom.[xii] In American law, religion is a “protected category,” like race and sex.[xiii] Courts should therefore take very seriously a motion by one party to render a religious arbitration agreement unenforceable on grounds of freedom of religion.
In some cases, freedom of religion is arguably enhanced by permitting parties to enter into binding religious arbitration agreements.[xiv] For example, the “internal affairs” doctrine prevents American courts from interfering in church doctrinal disputes. In such cases, binding religious arbitration agreements promote freedom: they permit private parties to make legally enforceable contracts that would otherwise be impossible. (We can easily imagine the effect of preventing courts from enforcing agreements in such instances: it might be much harder for churches to find ministers, for example.)
But in cases where civil courts are competent to handle the dispute, the freedom-enhancing benefits of binding religious arbitration are outweighed by its freedom-limiting aspects. Religious arbitration in these circumstances forces parties to comply with religious procedural or substantive law, even though other routes to settle their disputes are available. Parties can still make an agreement to resolve disputes before religious tribunals, and the state may encourage this. But if one party later chooses not to abide by the agreement, it should not be enforceable in a civil court.
[i] Arbitration is enforceable in the United States under the Federal Arbitration Act. 9 U.S.C. § 2 (2006). In Canada, the provinces have enacted legislation to make international and domestic arbitration binding; some of this legislation is still based on the English Arbitration Act of 1889, which made arbitration binding in England. See J. Brian Casey, Arbitration Law of Canada: Practice and Procedure 3, 21-23 (2005).
[ii] Associated Press, Ontario Will Ban Shariah Arbitrations, N.Y. Times, Sept. 12, 2005, at A6.
[iii] Awad v. Ziriax, 754 F.Supp.2d 1298 (W.D. Okla. 2010).
[iv] H.B. 1552, 53d. Leg. § 1(C) (2011), available at http://www.oklegislature.gov/BillInfo.aspx?Bill=hb1552. See Mark Schlachtenhaufen, SQ 755 Follow-Up Bill Dies in Committee, Edmond Sun, Apr. 11, 2011, available at http://www.edmondsun.com/local/x1142032888/SQ-755-follow-up-bill-dies-in-committee/print.
[v] Qur’an 4:11.
[vi] See supra note 2.
[vii] 53 F.Supp.2d 1101, 1112 (D. Colo. 1999).
[viii]  S.C.C. 54 (Can.). Marcovitz was a divorce case, rather than an arbitral agreement per se.
[ix] See Ayelet Schachar, Privatizing Diversity: A Cautionary Tale from Religious Arbitration in Family Law, 9 Theoretical Inquiries L. 573, 595 n,52 (2008).
[x] James A. Madison, Memorial and Remonstrance Against Religious Assessments, in Constitutional Debates: A Documentary History 50 (John J. Patrick and Gerald P. Long eds., 1999).
[xi] U.S. Const. amend. I.
[xii] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, § 2, being Schedule B to the Canada Act, 1982, c. 11 (U.K.).
[xiii] See, e.g., Civil Rights Act of 1964, tit. VII, codified at 42 U.S.C. § 2000e-2 (2006) (prohibiting employment discrimination on grounds of “race, color, religion, sex, or national origin”).
[xiv] See, e.g., Richard W. Garnett, Do Churches Matter? Towards an Institutional Understanding of the Religion Clauses, 53 Vill. L. Rev. 273, 274 (2008) (“[R]eligious freedom has and requires an infrastructure.”).