E. RELIGIOUS ARBITRATION IS OFTEN COERCIVE AND IS USED TO ENTRENCH UNJUST POWER RELATIONS IN RELIGIOUS COMMUNITIES
Another concern raised by opponents of secular enforcement of religious arbitration is the problem of coercion. The legitimacy of all arbitration is premised on the parties’ voluntarily agreeing to submit their dispute to a nonjudicial forum. Although all citizens have the right to have cases resolved by state courts in accordance with state laws, contemporary commitments to freedom of contract permit individuals to waive this right, and to instead choose to have their conflicts adjudicated in the forum and according to the law of their own choosing. Based on these theoretical underpinnings, standard arbitration laws provide that arbitration agreements, like all contracts, are void if secured through coercion or duress. At least in the United States, the standard for voiding a contract procured through duress is that courts will invalidate agreements produced by means of “improper threats by the other party that leaves the victim no reasonable alternative” but to enter into the coerced contract.
Problematically, however, courts have a poor track record of recognizing various forms of pressure exerted by religious communities to get individuals to agree to arbitrate disputes before religious tribunals as legal duress. Traditional Jewish law, for instance, maintains that Jews are obligated to resolve their disputes with co-religionists in rabbinic courts in accordance with Jewish law. Jewish litigants who refuse to appear before a rabbinic tribunal when summoned in response to a complaint being filed may be subject to a seruv, a public declaration that such parties are in contempt of court. The practical ramifications of a seruv vary widely from community to community, but can include exclusion from participation in religious services, denial of the rights and privileges of membership in the Jewish community, and expulsion of one’s children from private religious schools. Additionally, an individual’s being subject to a seruv may result in other members of the Jewish community refusing to do business with him or her, and thus have real economic consequences.
In some communities, refusal to consent to resolve disputes in rabbinic courts, and resorting to secular adjudication, can result in a party being ostracized by friends and family. In numerous instances, parents who seek to leave the observant Jewish community and refuse to adjudicate divorce, property division, and child custody matters in a religious forum have had the full financial and political resources of some Jewish communities brought to bear against them in secular court proceedings, sometimes resulting in their loss of custody or visitation rights. Despite the very real consequences of refusing to arbitrate a dispute in a rabbinic court, American courts have regularly held that a seruv does not constitute legal coercion, and that arbitration agreements signed under threat or actual issuance of a seruv are not void for duress.
Jewish law and some Jewish communities use the seruv as a formal procedural means of pressuring members of the community to appear before a religious arbitration tribunal. Although similar mechanisms may not necessarily exist in other religious systems, many other religious communities exert all kinds of informal communal pressure to compel members of the faith—as well as those who no longer wish to remain members—to resolve litigious matters internally. Cases have been reported in which members of tight-knit Christian communities who refuse to arbitrate disputes in a religious forum have lost jobs in churches and religious schools, been made unwelcome in their places of worship, and been socially ostracized by friends and neighbors. The more highly organized and isolationist a religious community is, the more harmful such pressure can be, and the more effectively it can be brought to bear in order to compel a recalcitrant member of the community to resolve a dispute internally.
The ways in which some well-organized religious groups have dealt with allegations of sexual abuse committed by religious leaders is illustrative, although not strictly an instance of religious arbitration. Such allegations have been rippling through Catholic, Jewish, and more recently Muslim communities for some time. In many cases, the religious establishments in these communities seek to resolve such matters internally, without involving secular law enforcement authorities. The Catholic Church has used a variety of different means to convince alleged victims and whistleblowers to keep such matters within Church disciplinary channels. In one headline-making case of alleged sex abuse of a minor girl by an unlicensed community therapist and rabbi, communal leaders enacted numerous measures to punish the victim and her family for handling the matter through the secular criminal justice system. The victim and her family received threatening calls and were ostracized by neighbors, and the victim’s husband had his local business boycotted and was forced to close.
Despite the prevalence of such tactics to compel members of religious communities to agree to participate in religious arbitration proceedings, courts rarely recognize such pressures as constituting duress. One commentator has summarized the view of American courts on the matter: “if a religious body applies religious pressure on an individual to do something, it is not duress because that individual can reasonably refuse and abstain from religious pressure to do an act.” Opponents of religious arbitration can argue, however, that this approach badly misunderstands the nature of individuals’ religious commitments, and their social, familial, and economic ties to their religious communities. Many religious traditions maintain that adherents are bound to resolve their disputes in religious courts and in accordance with religious norms and values. Such duties exert genuine pressure upon faithful members of the community to accede to even unfair, unprofessional, and biased religious arbitration proceedings.
Rejecting this religious duty can often entail serious consequences to one’s standing in the community, and in the mind of the individual adherent, to his or her standing in the eyes of God as well. Although this sense of obligation to abide by religious arbitration proceedings may not be the result of duress in the external sense typically contemplated by the law, for the religious individual there is often no reasonable alternative but to conform to the norms and values of his or her faith community. Leaving the faith, moreover, is often less of a choice than courts may be willing to acknowledge. It is rare for religious communities to physically prevent an individual from leaving the fold, but abandoning one’s religion and religious community nevertheless can lead to one’s being ostracized by friends and family, loss of access to one’s children, and severe financial hardship, especially for those seeking to leave isolationist communities where the teaching of secular education and skills for functioning in secular society are kept to a minimum.
-  See, e.g., 9 U.S.C. § 10(a)(1).
-  Restatement (Second) of Contracts § 175(1) (1981).
-  See Ginnie Fried, Comment, The Collision of Church and State: A Primer on Beth DinArbitration and the New York Secular Courts, 31 Ford. Urb. L.J. 633, 652-53 (2004).
-  See Wolfe, supra note 20, at 460-65.
-  See Anna Stolley Persky, Prosecutors Battle the Wall of Silence around Sex Assault inReligious Communities, ABA J. (Dec. 1, 2013), http://www.abajournal.com/magazine/article/ the_religious_wall_of_silence.
-  See Josh Saul, Sex Abuse Victim Shamed during Synagogue Prayers, N.Y. Post (Sept. 9,2013), http://nypost.com/2013/09/09/sex-abuse-victim-shamed-during-synagogue-prayers/; Hella Winston, Weberman Abuse Case Exposes Role of Shadowy “ModestyCommittees" Jewish Week (Dec. 10, 2012), http://www.thejewishweek.com/news/new-york-news/weberman-abuse-case-exposes-role-shadowy-modesty-committees.
-  Fried, supra note 50, at 652. See also, Greenberg v. Greenberg, 656 N.Y.S.2d 369(App. Div. 1997); Golding v. Golding, 581 N.Y.S.2d 4 (App. Div. 1992).
-  See Wolfe, supra note 20, at 440-41.