G. RELIGIOUS ARBITRATION’S BIGGEST CHALLENGES MOVING FORWARD: MOLDING ANCIENT LAWS TO FIT A MODERN PARADIGM, AND EQUAL ACCESS OF ALL RELIGIONS TO RELIGIOUS ARBITRATION

Religious arbitration’s proliferation still faces difficult issues, especially as new religions embrace the practice. The two biggest issues are apparent in the fledgling branch of Islamic religious arbitration in the United States. First, Islamic arbitrators, much like those of other religions, must mold ancient laws to fit a modern paradigm. This is indeed a challenge for any nomos-centric faith tradition that wishes to use its religious norms and values to effectively and convincingly resolve modern conflicts. Although doing so can often be challenging in practice, it is something that religious leaders and scholars of many faiths have done before and have within their power to do again. The second challenge is more difficult to overcome. Contemporary American Muslims face serious Islamophobia that is specifically directed at concerns over Islamic religious norms and practices—precisely the standards that Islamic arbitration would seek to uphold among Muslim disputants. Although this problem is particularly acute for Muslims—thus far, no states have attempted to ban the application of Jewish law or Christian values—it is in many ways part of a broader tension between contemporary societal values and traditional religious mores and practices.

As with Christian denominations, Islam is composed of numerous sects, some more conservative—strict in their adherence to the laws of their faith—than others. These subsets also have different interpretations of the Qur’an and its teachings. Different subsets will thus be more readily able to implement religious arbitration acceptable to American secular courts than will others. As with every other branch of dispute resolution, the enforceability of arbitration proceedings applying religious norms is limited by the bounds of public policy. Some groups’ interpretations of the Qur’an breach or run contrary to public policy and thus will not be enforceable even in consented-to arbitration.

That said, with the growth of Islamic arbitral bodies has come the type of sophistication developed by other religions in their utilization of arbitration. Islamic arbitral bodies have gotten better at ensuring that they keep their decisions, arbitral awards, and arbitral procedures within the bounds of public policy, and they continue to work at perfecting this skill.

But instead of being met with increasing acceptance, Islamic religious arbitration has been framed as a different practice altogether. Muslims’ arbitral bodies are often characterized as full-blown courts. This sort of characterization can be found in the following passage, taken from the less-than-mainstream Breitbart News, but which captures well the popular sentiment:

An Islamic Tribunal using Sharia law in Texas has been confirmed by Breitbart Texas. The tribunal is operating as a non-profit organization in Dallas. One of the attorneys for the tribunal said participation and acceptance of the tribunal’s decisions are “voluntary.”[1]

Breitbart Texas spoke with one of the “judges,” Dr. Taher El-badawi. He said the tribunal operates under Sharia law as a form of “non-binding dispute resolution.” El-badawi said their organization is “a tribunal, not arbitration.” A tribunal is defined by Merriam-Webster’s Dictionary as “a court or forum of justice.” The four Islamic attorneys call themselves “judges” not “arbitrators.”

El-badawi said the tribunal follows Sharia law to resolve civil disputes in family and business matters. He said they also resolve workplace disputes.

Upon review, the tribunal’s website indicates a practice directly in line with other religious arbitral bodies.69 Even if the tribunal were to decide issues not in accordance with the laws of the United States, such decisions could be challenged in the secular court system. Nevertheless, the fear of such tribunals captured by the tone of the above excerpt persists. For example, “[i]n 2006, the province of Ontario banned arbitration of family law disputes under any body of laws except Ontario law, in part to prohibit arbitration under religious laws.”70 Moreover, within the United States, seven states have passed their own laws banning courts from considering Shari’a.71 Because bans on consideration of Sharia in particular will likely be found unconstitutional in the United States, states that pass such laws will need to draft them broadly in order for them to pass constitutional muster. The unintended consequences can be significant:

[T]he bans can have unintended consequences like disrupting marital prenuptial agreements or invalidating court decisions in other states. Especially in divorce and contract law, religious beliefs (like Sharia, orthodox Jewish or Catholic canon) can factor into how judges or arbitrators preside over a dispute.

For example, a couple may sign a prenuptial agreement that requires them to go to an imam and that a religious leader must conduct the mediation. Alabama’s [ban on consideration of Shari’a ] nullifies that requirement.72

rabbinical courts—are treated differently by the public. See also Eric Celeste, “AntiMuslim Sentiment in Irving (and the Imam Who Has To Tolerate It),” http://www. dmagazine.com/frontburner/2015/03/an ti-muslim-sentiment-bubbles-up-in-irving- and-the-imam-who-has-to-tolerate-it/, last accessed Jan. 17, 2017).

  • 69. About Us, Islamic Tribunal, http://www.islamictribunal.org (last visited Oct. 1, 2016).
  • 70. Bilal M. Choksi, Comment, Religious Arbitration in Ontario—Making the Case Based on the British Example of the Muslim Arbitration Tribunal, 33 U. Pa. J. Int’l L. 791, 791 (2012).
  • 71. Liz Farmer, Alabama Joins Wave of States Banning Foreign Laws, Governing (Nov. 4, 2014), http://www.governing.com/topics/elections/gov-alabama-foreign-law- courts-amendment.html (last visited Aug. 28, 2016).
  • 72. Id.

Religious leaders fear such effects—as reflected in their willingness to stand united against such laws.[2] This trend must continue for universal acceptance of religious arbitration to continue. If bans are passed and awards from religious arbitral bodies consistently struck down, the practice will be less likely to be selected as a method for settling disputes between parties. Such nullification is unlikely, however, as it would disregard contract law.

  • [1] Bob Price, Islamic Tribunal Confirmed in Texas; Attorney Claims “It’s Voluntary”,Breitbart.com (Jan. 27, 2015), http://www.breitbart.com/texas/2015/01/27/hold-islamic-tribunal-confirmed-in-texas-its-voluntary-says-attorney/ (last visited Oct. 1,2016). Of course, as Snopes.com notes (see http://www.snopes.com/politics/religion/shariatexas.asp, last accessed January 17, 2017), this Breitbart story is hyperbolis-tic, exaggerated, and not reliable in its details. It is quoted here exactly because thistype of story emphasizes how Islamic tribunals—acting not much differently than
  • [2] See, e.g., Tara Culp-Ressler, Christians Blast Ballot Initiative Banning Sharia Lawin Alabama, ThinkProgress (Nov. 2, 2014), https://thinkprogress.org/christians-blast-ballot-initiative-banning-sharia-law-in-alabama-7166c97ae507#.qejhnbffj (lastvisited Aug. 28, 2016).
 
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