F. RELIGIOUS ARBITRATION CANNOT BE ADEQUATELY POLICED OR REGULATED IN LIBERAL SOCIETIES COMMITTED TO RELIGIOUS FREEDOM
The challenges to religious arbitration discussed in the previous three sections are limited in a very important sense. Although concerns for substantive injustice, procedural unfairness, and coercive pressure to appear before religious tribunals are indeed quite real, they can—at least in theory—be addressed through secular judicial oversight over the religious arbitration process. Secular law arbitration regimes such as the Federal Arbitration Act provide for judicial review of arbitration agreements, procedures, and awards. Such review might also be—and in practice often is—applied by state courts to evaluate the validity and enforceability of religious arbitration proceedings as well.
Arbitration agreements are subject to the ordinary rules of contract law, and can therefore be voided if procured through coercion or duress. Arbitration law also requires arbitration proceedings to respect basic norms of procedural due process. Arbitrators cannot be biased or have interests in the cases they decide; they are required to hear and take cognizance of relevant evidence, give all parties adequate notice of proceedings and an opportunity to be heard, and respect other basic notions of procedural fairness. Additionally, courts will not typically uphold arbitration agreements in which parties agree to alienate basic procedural due process rights protected by the Constitution. Moreover, secular law arbitration frameworks often include provisions empowering courts to review the substance of arbitration awards, and to vacate those awards if they are contrary to public policy. In theory, these legal limits on the judicial recognition and enforcement of all arbitration decisions can greatly limit the occurrence of coercive, unfair, and substantively unjust, but still legally binding religious arbitration proceedings. Moreover, to the extent that current legislative limits prove inadequate to address special concerns arising in the religious arbitration context, lawmakers can modify existing frameworks for judicial review of arbitral proceedings to better resolve such problems.
Although existing legal frameworks from judicial review of arbitration may help prevent substantive and procedural unfairness and duress in theory, in practice, courts are highly deferential to religious arbitrators. Such deference significantly heightens the concern that individuals may be pressured to participate in religious proceedings that are unfair, lack important procedural protections, and produce results that are at odds with standard notions of substantive justice. Judicial deference to arbitral proceedings is not only a concern in religious dispute resolution. Courts regularly uphold commercial and other non-religious arbitration agreements and awards, often with only cursory review. The United States and many other arbitration-friendly jurisdictions have clear policies favoring the use of private arbitration to resolve litigious conflicts outside state courts. These policies are grounded in several different concerns, including personal autonomy and freedom of contract; a desire to keep cases out of overworked and clogged court systems; the belief that private arbitration can often be used to craft better results more consonant with parties’ expectations and interests; and a belief that arbitration is often cheaper, faster, and more efficient than formal adjudication. As a result of this broad, overarching public policy favoring arbitration, courts are often hesitant to void arbitration agreements or vacate arbitral awards.
When it comes to judicial review of religious arbitration, however, courts appear to be even more hesitant. This is largely a result of free exercise and religious establishment concerns, which give courts significant pause at the prospect of telling parties to religious arbitration proceedings what the norms and values of particular faith traditions are, and whether or not they may contract with each other to resolve private disputes accordingly.
In the United States, these concerns take the form of the “religious question doctrine.” The origins of the religious question doctrine date back to the late nineteenth century, when the Supreme Court considered an appeal from a lower federal court ruling enjoining the enforcement of a state court decision that resolved a property dispute between two church factions. In upholding the lower court’s refusal to permit a judicial disposition of the dispute, the Court held that, because the case turned on an interpretation of church doctrine, a state authority could not resolve the issue without infringing on important First Amendment principles. Instead, the Court ruled, such matters must be resolved by relevant ecclesiastical authorities, to which state courts must then defer. Almost a century later, in Presbyterian Church v. Mary Elizabeth Blue Hull Memorial Church, the Supreme Court affirmed this doctrine. In that case, the Court reversed a ruling by the Georgia Supreme Court that awarded church property to two local congregations because it found that the broader institutional church organization failed to uphold its own tenets of faith and practice. In reversing the Georgia court’s decision, the Supreme Court held that state authorities cannot determine the truth or falsity of religious doctrine.
The religious question doctrine places major limitations on courts’ abilities to review religious arbitrations for duress or procedural or substantive injustice. The Federal Arbitration Act, for instance, provides that courts may vacate an arbitration award issued as the result of arbitrators exceeding their authority as provided by the litigants’ arbitration agreement. In the secular context, this might mean that if parties to an arbitration agreement had provided that their dispute should be resolved according to French law, and instead, the arbitrators flipped a coin, it would be appropriate for a court to vacate the award because the arbitrators overstepped their grant of authority. Pursuant to the arbitration agreement, the arbitrators’ authority was limited to resolving the parties’ dispute in accordance with their understanding of French law. Although a court would likely not expect the arbitrators to resolve the case exactly as a French judge might, a coin-flip would clearly be a means of dispute resolution that the arbitrators were not contractually authorized to utilize.
Strangely, however, the religious question doctrine may prevent courts from making similar kinds of judgments with respect to religious arbitration proceedings. Courts have explicitly held that where arbitrators purport to have based their decisions on religious norms and values, courts cannot decide whether those religious standards actually support the award. Under current applications of the religious question doctrine, courts may not make judgements about what religious laws and values really are or require; they cannot second-guess the purported religious determinations of ecumenical officials. Doing otherwise would amount to the government’s making determinations about what are and are not correct statements of the teachings and commitments of particular faith traditions, essentially establishing some interpretations of those traditions and not others as normative. To avoid such governmental encroachments on the integrity and independence of religions, courts typically avoid any review of religious arbitral proceedings that would involve making substantive judgments about the underlying religious issues or laws.
Similar judicial review problems exist with respect to questions of duress and procedural fairness in religious arbitration proceedings. Evaluating the degree to which communal pressure and formal religious doctrines such as the rabbinic seruv unduly coerce parties to agree to arbitrate disputes in religious forums would require courts to examine and make judgments about religious values. Not only is there good reason to think that courts are simply bad at such determinations, but they may be barred from doing so under religious freedom doctrines. By default, such restrictions leave vulnerable parties unable to seek redress through the courts in the ways that existing legal frameworks for arbitration anticipate.
For the same reasons, there is good reason to think that legal standards for judicial review of arbitration are largely ineffective at protecting vulnerable parties from procedural unfairness in religious proceedings. Arbitration laws often provide for vacating arbitration awards if arbitrators refused to hear and consider relevant material evidence with respect to the dispute they are resolving. In religious contexts, questions such as evidence, pleading procedures, and the way arbitrators ought to go about resolving cases are often determined by religious law. If a court is asked to vacate a religious arbitration award because the arbitrators failed to properly evaluate material evidence, or otherwise prejudiced the rights of the litigants, it would have to interpret and make determinations about relevant religious norms. The judge would have to decide what the relevant religious system says about what kinds of evidence are or are not material in order to determine whether the arbitrator—who by the terms of the arbitration agreement is supposed to apply religious law—failed to consider evidence that the religious laws he or she is supposed to apply consider to be material. Likewise, reviewing courts would have to consider what procedural rights the relevant religious laws and values afford to each litigant in order to determine whether the arbitrators acted in a manner that prejudiced such rights. Under many standard contemporary approaches to the religious question doctrine in particular, and government determinations of religious norms and standards in general, however, judges could not make such determinations. Rather than reviewing such claims of procedural unfairness and duress, state judges would have to defer to the religious arbitrators’ decisions, leaving vulnerable litigants without meaningful recourse to ensure the truly volitional nature, and procedural and substantive justice of religious arbitration proceedings.
-  See supra Chapter Six (A).
-  For examples of such proposals, see Baker, supra note 4, at 197-201.
-  See Baker, supra note 4.
-  See Watson v. Jones, 80 U.S. 679 (1872).
-  See Presbyterian Church v. Mary Elizabeth Blue Hull Memorial Church, 393 U.S.440 (1969).
-  See 9 U.S.C. §10(a)(4) (1925).
-  See, e.g., Lang v. Levi, 16 A.3d 980 (2011).
-  See 9 U.S.C. §10 (a) (1925).