“There is not a righteous person, in this community, who will have difficulties that cannot be settled by arbitrators . . .” –Brigham Young, president of the Church of Jesus Christ of Latter-day Saints, 1857
Religious arbitration, broadly defined as “voluntary settlement of legal issues between parties under the umbrella of religious principles,” has a long tradition in the United States and Canada. It arrived with the colonists, who came from a Europe where Christian religious courts competed directly with civil courts in defining justice.
The tradition of arbitration in Judaism dates back even further. In the 2nd century, the Roman Empire abolished official Jewish courts, opening the door to what would eventually become the Jewish civic courts of Batei Din (literally “houses of judgment”), which still arbitrate cases throughout Jewish populations worldwide.
But arbitration isn’t just a matter of ancient history; it may surprise you to learn public courts support arbitration, including religious settlements. Resolving a case through arbitration means less time and money wasted on petty litigation and more time for the public judicial system to handle more impactful cases. In matters that take place within and between religious organizations and individuals of the same faith, religious arbitration frequently provides an inexpensive and effective means of keeping personal disputes out of public courts.
True, religious tribunals no longer hold the power of compulsory jurisdiction in the United States as they once did. Nonetheless, they play an important and sometimes controversial role in determining the outcome of cases, walking a delicate line between the First Amendment’s guarantee of freedom religious and its prohibition against the government’s “establishment” of a religion.
The pros and cons of religious arbitration
As reported in a 2015 series of articles in The New York Times, some practices have cast a shadow on the religious arbitration system. Of particular note was the case of Nicklaus Ellison, who died of an accidental drug overdose while enrolled at Teen Challenge, a Christian-run rehabilitation program. Teen Challenge claimed to have “de-gayed” Ellison, as opposed to offering conventional drug rehabilitation services. When the Ellison family sued, they found that they had to settle the case via religious arbitration as stipulated in a contract Ellison had signed with Teen Challenge.
Or consider the case of Luis Garcia, who claimed that the Church of Scientology had defrauded him out of tens of thousands of dollars. Like Ellison, Garcia had voluntarily signed an agreement to settle disputes via religious arbitration. In this instance, the plaintiff was forced to enter arbitration under the auspices of the very religion he was accusing of fraud.
If that were not enough, when religious organizations lose their cases in arbitration, they sometimes turn to the secular court system to overturn the rulings, contradicting the entire purpose of religious arbitration in the first place.
Islam barred from religious arbitration?
That religious organizations might sometimes misuse or even abuse arbitration is one area that has proved difficult for lawmakers to address, because it cuts so closely to the cherished religious freedoms of American citizens.
A newer, potentially more explosive issue might open the floodgates to further regulation of religious arbitration services. Several states have recently banned the influence of Islamic “sharia law” on the American legal system, potentially—and discriminatorily—prohibiting Muslims from performing religious arbitration in accordance with their own customs and principles.
While some conflate Islamic tribunals with oppression and misogyny—along with the specter of Sharia law—in reality the types of arbitration being handled in Islamic tribunals are similar to those that have long been decided through Jewish and Christian religious arbitration in the United States.
“American law provides for freedom of contract and disposition of property at death,” writes legal scholar Eugene Volokh, “Muslims (like Christians, Jews, and the irreligious) can therefore write contracts and wills to implement their understanding of their religious obligations.”
Oversight from the federal and state governments may be needed to keep religious arbitration from being unfairly excluded for unpopular religions, while ensuring that its use does not deny the vulnerable their right to a fair trial. In the end, a fair system of religious arbitration can be a blessing to both the religious community and the public courts.
The views and opinions expressed here are those of the author and do not necessarily represent those of Avvo.
