I'm inclined to say that this is exactly right. In fact, the
Court's church property and church government cases suggest that
religious arbitration is the only permissible mode for resolving those
cases that require interpretation of religious doctrine. And U.S. law
has certainly coexisted for decades, if not longer, with religious
arbitration by Beth Dins, Christian arbitration bodies, and a smaller
number of Islamic arbitration bodies.
I was curious, though, about two related questions: (1) Does
Jewish, Muslim, or Christian religious law, as interpreted by at least
some prominent arbitral bodies, set up rules that are either
substantively (e.g., men are favored over women in divorce settlements,
or vice versa) or procedurally (e.g., male witnesses are treated as more
credible than female witnesses, or religiously orthodox witnesses are
treated as more credible than apostate witnesses) discriminatory based
on sex, religion, or ethnicity? (2) Is there a generally applicable
principle of arbitration law (both religious and secular) that declares
arbitration awards to be against public policy if they are based on
similarly discriminatory rules?
It may well be that we shouldn't have such a generally applicable
principle of arbitration law, because parties should be free to waive
their nondiscrimination rights, at least in certain kinds of contexts.
But if there such a generally applicable principle, and some religious
arbitral decisions do indeed tend to involve the application of
discriminatory rules, then presumably those decisions would be
unenforceable unless some religious exemption is granted from the
arbitration law principle.
Eugene
Vance Koven writes:
We've discussed this a bit on the list before, but I don't see
why in principle religious courts should not be treated pretty much as
commercial arbitration is: as a consensual alternative to the state
legal system (with enforcement permissible through the national courts
where required). In all such cases, the national legal system provides
an umbrella of protections, including among other things the necessity
for consent and honesty in obtaining the agreement by which the parties
submit to the alternative jurisdiction.
It should not be an objection in most instances that the
substantive rights of the parties differ from the norms of the secular
courts. There are very few rights, even constitutional ones, the
exercise of which in particular circumstances cannot be waived. For
example, people waive their free speech rights in private contexts all
the time (think of non-disparagement clauses and even confidentiality
agreements, including those attached to litigation settlement
agreements); they waive statutory rights such as nondiscrimination
rights and antitrust rights; and so on. Some things cannot be waived,
such as one's right to be free as opposed to enslaved, but of course
this is understood to be a matter of the perpetuity of the
arrangement--any employment agreement restricts one's freedom of action
to an extent--and the mechanism for enforcement (prohibition of contrary
employment rather than specific performance). One also is restricted in
waiving rights of third parties (e.g. one's children), which might
create some issues under religious law. Still, the general principle
ought to be that as to the consenting party an agreement to refer most
matters to religious courts ought to be upheld and enforced by the
secular courts.
I frankly don't see what Matthew or Luke (or Mark or John, for
that matter) have to say on the matters quoted below have to do with the
subject.
Vance
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