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FAITH-BASED ARBITRATION EVALUATED: THE POLICY ARGUMENTS FOR AND AGAINST RELIGIOUS ARBITRATION IN AMERICA

  • Michael J. Broyde (a1)
Abstract

This article explores whether allowing such expansive arbitration is a wise idea for the United States (and other western democracies). Like all arbitration, religious arbitration starts with a contract to arbitrate, but frequently does not invoke the law of the United States as the law to be used to resolve disputes, but instead allows parties to resolve disputes according to their own religious principles, both procedurally and substantively. The article is organized into two substantive parts. One part explores the strengths and weaknesses of the seven arguments against faith-based arbitration, which are (1) one law for one people; (2) religious arbitration produces substantive injustice; (3) religious arbitration produces procedural injustice; (4) religious arbitration is often subtly coercive to its members; (5) liberal society has a difficult time policing religious arbitration; (6) enforcement of religious arbitration sometimes violates people's rights to religious freedom; and (7) allowing religious arbitration promotes isolation and non-integration of religious communities. The next part explains and criticizes the five arguments in favor of religious arbitration, which are (1) religious arbitration is a religious freedom imperative; (2) religious arbitration can resolve some commercial disputes more accurately than secular courts can; (3) religious arbitration is the only way to resolve certain religious problems; (4) secular regulation of religious arbitration helps moderate and integrate religion; and (5) religious arbitration promotes value sharing between religious and secular cultures and as such enriches public discourse. The article concludes with an endorsement of the value of religious arbitration subject to reasonable procedural and substantive limitations.

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References
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1 This is discussed in my recent book: Michael J. Broyde, Sharia Tribunals, Rabbinical Courts, and Christian Panels: Religious Arbitration in America and the West (2017). Some of the material in this article is found in the final sections of the book.

2 This basic idea is the focus of a series of articles of mine. See Broyde, Michael J., Shari'a and Halakha in North America: Faith-Based Private Arbitration as a Model for Preserving Rights and Values in a Pluralistic Society, 90 Chicago-Kent Law Review 111–40 (2015); Broyde, Michael J., Bedzow, Ira & Pill, Shlomo C., The Pillars of Successful Religious Arbitration: Models for American Islamic Arbitration Based on the Beth Din of America and Muslim Arbitration Tribunal Experience, 30 Harvard Journal of Racial & Ethnic Justice 3376 (2014); Broyde, Michael J., Jewish Law Courts in America: Lessons Offered to Sharia Courts by the Beth Din of America, 57 New York Law School Law Review 287311 (2012/2013).

3 See Broyde, supra, note 1. See also Arbitration, Black's Law Dictionary 119 (9th ed. 2009) at 119. Arbitration is defined as “[a] method of dispute resolution involving one or more neutral third parties who are usually agreed to by the disputing parties and whose decision is binding.”

4 For an example of this, see Shelley v. Kraemer, 334 U.S. 1 (1948), which applies to racial matters. Although this requires more analysis, Shelley is undoubtedly correct in its analysis of racial matters exactly because the choice to discriminate based on race is constitutionally suspect. The single greatest challenge politically to religious arbitration agreements remains, I suspect, the sense (perhaps even true in certain settings) that religious arbitration discriminates based on values that secular society views as improper bases of discrimination. I would suggest however that Shelley is unusual in that the contract in Shelley was designed to impact those who had not signed it (by creating covenants that ran with the land). Parties ought to have the right to conduct their more private matters with values that otherwise discriminate. For example, most states have doctrines of sexual freedom that protect the right to commit adultery, see, for example, People v. Onofre, 415 N.E.2d 936, 943 (N.Y. 1980), but that does not mean that parties cannot agree in a prenuptial agreement that such conduct is to be financially penalized by contract. See also Note: Racial Steering in the Romantic Marketplace, 107 Harvard Law Review 877–94 (1994) (discussing societal tolerance for racial steering in personal ads).

5 Benjamin N. Cardozo, The Paradoxes of Legal Science 142 (1928), (reprinted 2000 by The Lawbook Exchange Ltd.)

6 Meacham v. Jamestown, Franklin & Clearfield Railroad Company, 105 N.E. 653, 655 (N.Y. 1914) (Cardozo, J., concurring) (internal citation omitted).

7 See Part II of Broyde, supra note 1.

8 Variation by Agreement:

Except as otherwise provided in subsection (b) or elsewhere in [the Uniform Commercial Code], the effect of provisions of [the Uniform Commercial Code] may be varied by agreement … . The presence in certain provisions of [the Uniform Commercial Code] of the phrase “unless otherwise agreed,” or words of similar import, does not imply that the effect of other provisions may not be varied by agreement under this section.

U.C.C. § 1-302 (American Law Institute & Uniform Law Commission 1977) (brackets in original).

9 Baker, Amanda M., A Higher Authority: Judicial Review of Religious Arbitration, 37 Vermont Law Review 157202, 190 (2012).

10 See Twinning, William, Normative and Legal Pluralism: A Global Perspective, 20 Duke Journal of Comparative & International Law 473517, 475–85 (2010).

11 For an overview of the rules of international law, see Trnavci, Genc, The Meaning and Scope of the Law of Nations in the Context of the Alien Tort Claims Act and International Law, 26 University of Pennsylvania Journal of International Law, 193266 (2014).

12 See Taylor, Charles, The Politics of Recognition, in Multiculturalism: Examining the Politics of Recognition 2550, 43–44 (Gutmann, Amy ed., 1994).

13 Cf. Brian Barry, Culture and Equality (2001) (arguing that the multicultural agenda undermines liberalism's core commitment to equality).

14 See generally Helfand, Michael A., Religious Arbitration and the New Multiculturalism: Negotiating Conflicting Legal Orders, 86 New York University Law Review 12311305, 1272–76 (2011).

15 Id. at 1276.

16 As explained in Broyde, supra note 1, chapters 5 and 6.

17 See Lerner, Natan, Group Rights and Legal Pluralism, 25 Emory International Law Review 829–51, 836 (2011).

18 As explained in Broyde, supra note 1, chapter 4.

19 See Paul Schiff Berman, Global Legal Pluralism: A Jurisprudence of Law beyond Borders 3–4 (2012).

20 Of course, U.S. law is not completely pluralistic in this sense. The United States Constitution, the “supreme law of the land,” places some significant limits on the kinds of state and local laws that can validly exist. No state or local government, for instance, can adopt measures that criminalize political speech, authorize law enforcement officers to unrestrictedly search private homes without warrants, or abolish jury trials in criminal proceedings. Moreover, the Constitution's Supremacy Clause, see U.S. Constitution article VI, clause 2, establishes that state laws are subordinate to federal law, and that in cases of conflict the uniformity of federal law will override the diversity of state laws. See Gibbons v. Ogden, 22 U.S. 1, 210–11 (1824). In various areas of public life, Congress has utilized its power to create uniform legal standards throughout the country by preempting state legislation and regulation. See, e.g., 17 U.S.C. § 301 (preempting state laws regulating materials subject to federal copyright laws); 21 U.S.C. §350k(a) (preempting state safety or effectiveness requirements for medical devices different from federal standards); 29 U.S.C. §§ 1144(a)-(b) (preemption of state employee insurance benefit plans by the Employment Retirement Income Security Act of 1974); Hines v. Davidowitz, 312 U.S. 52 (1941) (holding federal immigration law is sufficiently pervasive in the field as to preempt all state regulation of alien registration). Likewise, the sovereignty and independent lawmaking power of American Indian nations is subject to congressional discretion, and so, technically speaking, federal law controls Indian law as well. See 25 U.S.C. §§ 1301-1303 (applying most of the Bill of Rights to American Indian tribes). In practice, however, there is substantial pluralism in American law, and owing to this plurality of legal regimes, citizens are given ample opportunity to choose the kinds of laws they will live under. Constitutional impositions on state and local policy and law making are of course limited, and individual states retain a general police power to enact local criminal, tort, contract, property, family, and procedural rules as they see fit. While there has been substantial movement toward greater legal uniformity among states, the differences remain stark; depending on what state a person chooses to live in, they will have vastly different experiences with landlord-tenant laws, gun-control measures and legal standards for the use of force in self-defense, limits on tort liability, drug laws and policies, zoning regulations, driver's license requirements, vehicle safety and emission standards, and the availability and eligibility requirements of various programs providing welfare, education, and medical support. The list goes on. The Supremacy Clause, moreover, gives primacy to federal laws over state laws in cases in which Congress has the constitutional power to regulate. Even in spheres of concurrent state and federal lawmaking power, where federal rules do control state laws, the federal government often declines to regulate uniform rules for the entire country, and instead leaves individual states to develop a plurality of different standards. Current Supreme Court jurisprudence helps further limit legal uniformity even when Congress does legislate by holding that congressional intent to preempt alternative state law standards must be manifestly clear. See Garcia v. San Antonio Metropolitan Transportation Authority, 469 U.S. 528 (1985); Pacific Gas & Electric Company v. State Energy Resources Conservation & Development Commission, 461 U.S. 190, 206 (1983). Even when federal law does control, moreover, it must be interpreted by ninety-four different district courts in twelve different federal court circuits, which often disagree about the meaning and applicability of federal laws, leading to different applicable legal standards in different parts of the country, absent a clear determination of a uniform standard by the Supreme Court.

21 See New State Ice Company v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).

22 Spaht, Katherine S., Louisiana's Covenant Marriage: Social Commentary and Legal Implications, 59 Louisiana Law Review 63 (1998), http://faculty.law.lsu.edu/katherinespaht/covenantmarriage.htm (last visited Feb. 9, 2018).

23 See Ed Anderson & Roger Haydock, History of Arbitration as an Alternative to U.S. Litigation, West's Legal News 8257, Aug. 12, 1996, at 1996 WL 449743.

24 See Juenger, Friedrich K., Contract Choice of Law in the Americas, 45 American Journal of Comparative Law 195 (1997).

25 See Helfand, supra note 14, at 1254–58; Helfand, Michael A., Litigating Religion, 93 Boston University Law Review 493, 508 n.74 (2013); see generally Baker, supra note 9, at 163–64.

26 As explained in Broyde, supra note 1, chapter 8.

27 Id.

28 See generally Michael J. Broyde, Marriage, Divorce, and the Abandoned Wife in Jewish Law: A Conceptual Understanding of the Agunah Problems in America (2001).

29 See Aviad Hacohen & Blu Greenberg, The Tears of the Oppressed: An Examination of the Agunah Problem: Background and Halakhic Sources 20–23 (2004).

30 See Wolfe, Caryn Litt, Faith-Based Arbitration: Friend or Foe? An Evaluation of Religious Arbitration Systems and Their Interaction with Secular Courts, 75 Fordham Law Review 427–69, 460–61 (2006).

31 Se e Gohir, Shaista & Akthar-Sheikh, Nazmin, British Muslim Women and Barriers to Obtaining a Religious Divorce, in Gender and Justice in Family Law Disputes: Women, Mediation, and Religious Arbitration 166–85, 175 (Bano, Samia ed., 2017); Julie McFarlane, Islamic Divorce in North America: A Shari'ah Path in a Secular Society 171 (2012); Poulter, Sebastian, The Claim to a Separate Islamic System of Personal Law for British Muslims, in Islamic Family Law 147, 161 (Mallat, Chibli & Connors, Jane eds., 1990). Islamic law also provides for a form of judicially mandated divorce, or faskh, which a woman may be able to obtain for cause in case her husband is substantially delinquent in fulfilling his marital obligations. The existence of this judicially mandated form of divorce does not obviate the gender imbalance, however. In practice, since a wife has no elective right to divorce her husband, she will typically bear the burden of proving to a religious judge that her husband has acted in a manner that warrants granting a faskh divorce. See Rehana Parveen, Do Sharia Councils Meet the Needs of Muslim Women?, in Gender and Justice in Family Law Disputes: Women, Mediation, and Religious Arbitration, supra, at 142–65.

32 See generally al-Hibri, Azizah Y., An Islamic Perspective on Domestic Violence, 27 Fordham International Law Journal 195224 (2003).

33 See Rafiq, Aayeesha, Child Custody in Classical Islamic Law and Laws of Contemporary Muslim World, 4 International Journal of Humanities & Social Sciences 267–77 (2014).

34 See Prescott v. Northlake Christian School, 141 Fed. Appx. 263 (2005).

35 Id. at 272.

36 See Helfand, supra note 14, at 1258–60.

37 See, e.g., Sternlight, Jean R. & Jensen, Elizabeth J., Using Arbitration to Eliminate Consumer Class Actions: Efficient Business Practice or Unconscionable Abuse?, 67 Law & Contemporary Problems 75103 (2004); Herman Schwartz, How Consumers are Getting Screwed by Court-Enforced Arbitration, Nation (July 18, 2014), https://www.thenation.com/article/how-consumers-are-getting-screwed-court-enforced-arbitration/.

38 See Jessica Silver-Greenberg & Robert Gebeloff, Arbitration Everywhere: Stacking the Deck of Justice, New York Times, November 1, 2015, at A1.

39 14 Penn Plaza, LLC v. Pyett, 129 S.Ct. 1456, 1474 (2009).

40 See Helfand, supra note 14, at 1254.

41 See Eastern Associated Coal Corporation v. United Mine Workers of America, 531 U.S. 57, 62–63 (2000).

42 See, e.g., Berg v. Berg, No. 25099/05, 2008 WL 4155652, at *12–14 (N.Y. Sup. Ct., Sept. 8, 2008); Rakoszynski v. Rakoszynski, 663 N.Y.S.2d 957 (Sup. Ct. 1997). See also, In re Marriage of Dajani, 251 Cal. Rptr. 871 (Cal. Ct. App. 1988) (refusing to enforce a prenuptial contract because the contract's provision of a dowry only in the event of divorce encourages divorce and is therefore void for public policy).

43 See Wolfe, supra note 30, at 463–65.

44 See, e.g., Revised Uniform Arbitration Act §§ 2, 9, 11, 12, 15–17.

45 See Emanuel Quint, A Restatement of Rabbinic Civil Law 52, 275–300 (1990).

46 See Saher Tariq, Muslim Mediation and Arbitration: Insights from Community and Legal Practice, in Gender and Justice in Family Law Disputes, supra note 31, 126–41, at 128–36; Shaista Gohir & Nazmin Akthar-Sheikh, British Muslim Women and Barriers to Obtaining a Religious Divorce, in Gender and Justice in Family Law Disputes, supra note 31, 166–85, at 171–72; Hauwa Ibrahim, Practicing Shariah Law: Seven Strategies for Achieving Justice in Shariah Courts 140–41 (2012).

47 See Messick, Brinkley, The Judge and the Mufti, in The Ashgate Research Companion to Islamic Law 8384 (Peters, Rudolph & Bearman, Peri eds., 2016).

48 See id.

49 See id. at 84; The Principles of Jewish Law 615–19 (Menachem Elon ed., 2007).

50 See Dredge, C. Paul, Dispute Resolution in the Mormon Community: The Operation of Ecclesiastical Courts in Utah, in 4 Access to Justice: The Anthropological Perspective 191, 198 (Koch, Klaus-Freidrich ed., 1979); Michael J. Broyde, The Pursuit of Justice and Jewish Law 14–20 (1996).

51 See Zahraa, Mahdi & Hak, Nora A., Tahkim (Arbitration) in Islamic Law within the Context of Family Disputes, 20 Arab Law Quarterly 242, 33–34 (2006).

52 See Broyde, supra note 50, at 11–14.

53 See, e.g., Parveen, supra note 31, at 159.

54 See Broyde, supra note 1, at chapter 4.B.3–4.

55 See, e.g., Shulchan Aruch, Yoreh Deah 2:2 (judicial discretion with regard to fitness to be a communal leader); 64:21; (judicial discretion with regard to whether a thief has repented); Even Haezer 11:1 (judicial discretion with regard to evidence of adultery); 93:31 (judical discretion with regard to proper level of support in divorce matters); Hoshen Mishpat 24:1 (judicial discretion with regard to measuring damages in tort); 72:19 (judicial discretion with regard to bias); 157:4 (judicial discretion with regard to common commercial customs); 388:15 (judicial discretion with regard to torts related to improperly informing on a person).

56 See, e.g., Parveen, supra note 31, at 159.

57 See Broyde, supra note 1, at chapter 8.B–C.

58 See Drahozal, Christopher R., “Unfair” Arbitration Clauses, 2001 University of Illinois Law Review 695790, 705 (2001).

59 Id. at 708–15.

60 Id. at 720–41.

61 Rutledge, Peter B. & Drahozal, Christopher R., Contract and Choice, 2013 Brigham Young University Law Review 163, 5–9 (2013).

62 See Jessica Silver-Greenberg & Michael Corkery, in Arbitration, a “Privatization of the Justice System, New York Times, November 1, 2015.

63 Id.

64 Id.

65 See, e.g., 9 U.S.C. §10(a)(1) (2002).

66 Restatement (Second) of Contracts § 175(1) (American Law Institute 1981).

67 See Fried, Ginnine, Comment, The Collision of Church and State: A Primer on Beth Din Arbitration and the New York Secular Courts, 31 Fordham Urban Law Journal 633–55, 652–53 (2004).

68 See Wolfe, supra note 30, at 460–65.

69 See Anna Stolley Persky, Prosecutors Battle the Wall of Silence around Sex Assault in Religious Communities, ABA Journal (December 1, 2013), http://www.abajournal.com/magazine/article/the_religious_wall_of_silence.

70 See Josh Saul, Sex Abuse Victim Shamed During Synagogue Prayers, New York Post (September 9, 2013), http://nypost.com/2013/09/09/sex-abuse-victim-shamed-during-synagogue-prayers/; Hella Winston, Weberman Abuse Case Exposes Role of Shadowy “Modesty Committees, Jewish Week (Dec. 10, 2012), http://www.thejewishweek.com/news/new-york-news/weberman-abuse-case-exposes-role-shadowy-modesty-committees.

71 Fried, supra note 67, 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).

72 See Wolfe, supra note 30, at 440–41.

73 See Broyde, supra note 1, at chapter 6.A.

74 For examples of such proposals, see Baker, supra note 9, at 197–201.

75 Id.

76 See Watson v. Jones, 80 U.S. 679 (1872).

77 See Presbyterian Church v. Mary Elizabeth Blue Hull Memorial Church, 393 U.S. 440 (1969).

78 As the doctrine so describes, courts have sometimes disregarded arbitration awards when it can be shown that the arbitrator's decision constitutes a manifest disregard of the law. Courts did this in addition to the statutory exceptions under Section 10 of the Federal Arbitration Act, which names things like fraud, corruption, misconduct, and other malfeasance. To add complexity to the issue, a circuit split has developed over those who recognize the doctrine, those who do not, and those who have yet to rule on the subject. See Jason P. Steed, Appealing Arbitration Awards and the Circuit Split over “Manifest Disregard of the Law, American Bar Association (May 10, 2016), http://apps.americanbar.org/litigation/committees/appellate/articles/spring2016-0516-appealing-arbitration-awards-circuit-split-manifest-disregard-law.html.

79 See 9 U.S.C. § 10(a)(4) (2002).

80 See, e.g., Lang v. Levi, 16 A.3d 980 (2011).

81 Helfand, Michael A., Between Law and Religion: Procedural Challenges to Religious Arbitration Awards, 90 Chicago-Kent Law Review 141–62, 157 (2015).

82 See 9 U.S.C. § 10(a) (2002).

83 See Sternlight, Jean R., Creeping Mandatory Arbitration: Is It Just?, 57 Stanford Law Review 1631–75, 1635 (2005).

84 Encore Productions v. Promise Keepers, 53 Fed. Supp. 2d 1101 (D. Colo. 1999).

85 Id. at 1113.

86 Madison, James, Memorial and Remonstrance against Religious Assessments, in Constitutional Debates on Freedom of Religion: A Documentary History 4853, 50 (Patrick, John J. & Long, Gerald P. eds., 1999). See also Wallace v. Jaffree, 472 U.S. 38, 53 n.38 (1985).

87 See Estin, Ann Laquer, Embracing Tradition: Pluralism in American Family Law, 63 Maryland Law Review 540604, 600 (2004).

88 See Michael Corkery & Jessica Silver-Greenberg, In Religious Arbitration, Scripture is the Rule of Law, New York Times, November 3, 2015, at A1.

89 Marcovitz v. Bruker, [2007] 3 S.C.R. 607 (Canada).

90 Id.

91 Shachar, Ayelet, Privatizing Diversity: A Cautionary Tale from Religious Arbitration in Family Law, 9 Theoretical Inquiries in Law 573607, 595 n.52 (2008).

92 See Broyde, supra note 1, at chapter 9.

93 See Pragna Patel, The Growing Alignment of Religion and the Law: What Price Do Women Pay, in Gender and Justice in Family Law Disputes, supra note 31, 77–109, at 79–80. See generally Boyd, Marion, Religion-Based Alternative Dispute Resolution: A Challenge to Multiculturalism, in Belonging? Diversity, Recognition and Shared Citizenship in Canada 465–73 (Bantinh, Keith, Courchene, Thomas J. & Seidle, F. Leslie eds., 2007).

94 See Helfand, supra note 14.

95 See Wolfe, supra note 30, at 461–63.

96 See Khan, Shahnaz, Canadian Muslim Women and Shari'a Law: A Feminist Response to “Oh! Canada,” 6 Canadian Journal of Women & Law 5265, 62–63 (1993).

97 See Shachar, Ayelet, Religion, State, and the Problem of Gender: New Modes of Citizenship and Governance in Diverse Societies, 50 McGill Law Journal 4988, 58 (2005).

98 See Fried, Comment, supra note 67, at 646–47; Pengelley, Nicholas, Faith Based Arbitration in Ontario, 9 Vindobona Journal of International Commercial Law & Arbitration 111–22, 122 (2005).

99 E.g., The Christian Broadcasting Network, http://www1.cbn.com/cbnnews/us/2017/july/were-in-a-transition-and-its-for-the-best-eugene-petersons-about-face-on-gay-marriage (last visited Feb. 9, 2018) (noting simply that “The trend of evangelicals affirming homosexuality is not going away.”) See also Matthew Vines, God and the Gay Christian: The Biblical Case in Support of Same Sex Relationships (2015); Brad Harper & Stafford Harper, Space at the Table: Conversations between an Evangelical Theologian and His Gay Son (2016); Mark Achtemeier, The Bible's Yes to Same Sex Marriage: An Evangelical's Change of Heart (2014); Joseph Adam Pearson, Christianity and Homosexuality Reconciled: New Thinking for a New Millennium (2014).

100 See Stone, Suzanne Last, The Intervention of American Law in Jewish Divorce: A Pluralist Approach, 34 Israel Law Review 170210, 202–05 (2000).

101 See Wolfe, supra note 30, at 462–63.

102 See Walter, Nicholas, Religious Arbitration in the United States and Canada, 52 Santa Clara Law Review 501–69, 563–67 (2012).

103 U.S. Constitution amendment I.

104 Everson v. Board of Education of the Township of Ewing, 330 U.S. 1, 18 (1947). See also Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756, 792–93 (1973) (“A proper respect for both the Free Exercise and the Establishment Clauses compels the State to pursue a course of ‘neutrality’ toward religion.”).

105 See Lemon v. Kurtzman, 403 U.S. 602, 613 (1971).

106 Capitol Square Review & Advisory Board v. Pinette, 515 U.S. 753, 778 (1995) (O'Connor, J., concurring).

107 School District of the City of Grand Rapids v. Ball, 473 U.S. 373, 389 (1985).

108 Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995).

109 Good News Club v. Milford Central School, 533 U.S. 98 (2001).

110 Rosenberger, 515 U.S. at 845–46.

111 Eugene Volokh, Equal Treatment Is Not Establishment, 13 Notre Dame Journal of Law, Ethics & Public Policy 341–73, 369–70 (1999).

112 See Hutler, Brian, Religious Arbitration and the Establishment Clause, 33 Ohio State Journal on Dispute Resolution 337 (2018).

113 Employment Division v. Smith, 494 U.S. 872 (1990).

114 See id.

115 Id. at 879 (quoting United States v. Lee, 455 U.S. 252, 263 n.2 (1982) (Stevens, J., concurring)).

116 See Walter, supra note 102, at 563–64.

117 See Baker, supra note 9, at 197–98.

118 See generally Stephen V. Monsma & J. Christopher Soper, The Challenge of Pluralism: Church and State in Five Democracies (2009).

119 See Walter, supra note 102, at 539.

120 Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017).

121 Id. at 2024 n.3.

122 See Everson v. Board of Education, 330 U.S. 1 (1947).

123 Id.

124 Mueller v. Allen, 463 U.S. 388 (1983).

125 See Broyde, Michael J., Playground Resurfacing and Religious Arbitration Are Very Similar Activities: Trinity Lutheran Church As Applied to Religious Arbitration, 18 Rutgers Journal of Law & Religion 298330 (2018). That article notes that playground resurfacing is a set of legal activities that have five criteria: (1) Playground resurfacing is neutral and can be done without any theological overtones; (2) Playgrounds can be used by all and do not require any religious or theological test to play on; (3) All religions and many secular institutions can benefit from playground resurfacing; (4) Worship is not directly facilitated by playground resurfacing (i.e., it is the playground and not the chapel under discussion); (5) Many playgrounds are present and many secular or religious playgrounds can be played in. This listing is important, as it highlights the relationship between playground resurfacing and religious arbitration.

126 See, e.g., Presbyterian Church v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440 (1969). See also Goldstein, Jared A., Is There a “Religious Question” Doctrine? Judicial Authority to Examine Religious Practices and Beliefs, 54 Catholic University Law Review 497551 (2005).

127 See generally Lupu, Ira C. & Tuttle, Robert W., Courts, Clergy, and Congregations: Disputes between Religious Institutions and Their Leaders, 7 Georgetown Journal of Law & Public Policy 119–63 (2007).

128 See Jones v. Wolf, 443 U.S. 595 (1979).

129 See id.

130 See Meshel v. Ohev Shalom Talmud Torah, 869 A.2d 343 (2005).

131 See Broyde, supra note 1, at chapter 3.

132 See Wolfe, supra note 30, at 441.

133 Id.

134 See Walter, supra note 102, at 559–61.

135 See Hibibi-Fahnrich v. Fahnrich, no. 46186/93, WL 507388 (1995). See also In re Marriage of Dajani, 129 Cal. App. 2d 1387 (1988); In re Marriage of Obaidi, 154 Wash. App. 609, 616 (Wash. Ct. App. 2010).

136 See In re Marriage of Goldman, 554 N.E.2d 1016 (1990). See also Koeppel v. Koeppel, 138 N.Y.S. 2d 366 (1954); Avitzur v. Avitzur, 446 N.E.2d 138 (1983).

137 See IDB v. Weiss & Wolf, NYS Sp. Ct. 1984, NYLJ 2/4/85 at p. 14. See also Bank Leumi Trust Co. of New York v. Morris Spitzer, NYS Sup. Ct. 9/18/86 no. 017734/1986; Bollag v. Dresdner, 495 NYS 2d 560 (1985).

138 See, e.g., Presbyterian Church v. Mary Elizabeth Bull Hull Memorial Presbyterian Church, 393 U.S. 440 —(1969).

139 See Ben-Levi v. Brown, 60 Fed. Appx. 899 (4th Cir. 2015) (cert. denied, Ben-Levi v. Brown, 577 U.S. —(2016)).

140 See Ben-Levi v. Brown, 577 U.S. _ , *6–7 (2016) (Alito, J., dissenting).

141 See id. at *8–9 (Alito, J., dissenting).

142 See, e.g., Walter, supra note 102, at 552–54.

143 See Irving Breitowitz, Between Civil and Religious Law: The Plight of the Agunah in American Society (1993); Broyde, supra, note 28.

144 See Broyde, supra note 1, at chapter 3.D.

145 See Broyde, supra note 28.

146 See Federal Bureau of Investigation, https://www.fbi.gov/contact-us/field-offices/newark/news/press-releases/orthodox-jewish-rabbi-sentenced-to-more-than-three-years-in-prison-for-role-in-conspiracy-to-violently-extort-divorce-consent-from-reluctant-husband (last visited Feb. 9, 2017). See generally Aviad Hacohen & Blu Greenberg, The Tears of the Oppressed: An Examination of the Agunah Problem: Background and Halakhic Sources 20–22 (2004).

147 See Broyde, supra note 28, at 11–12.

148 Id.

149 See Hacohen & Greenberg, supra note 146, at 21.

150 See Broyde, supra note 28, at 12–13, 35.

151 See generally Zornberg, Lisa, Beyond the Constitution: Is the New York Get Legislation Good Law, 15 Pace Law Review 703–84, 728–33 (1995).

152 See Broyde, supra note 28, at 35.

153 See, e.g., Marguiles v. Marguiles, 344 N.Y.S.2d 482 (1973).

154 See Rubin v. Rubin, 348 N.Y.S.2d 61 (1973); see also Pal v. Pal, 45 A.D.2d 738 (N.Y. App. Div. 1974).

155 See Waxstein v. Waxstein, 395 N.Y.S. 2d 877 (1976) (aff'd 394 N.Y.S.2d 253 (1977)).

156 See Stern v. Stern, 5 Fam. L. Rep. (BNA) 2810 (1979).

157 See, e.g., Weiss v. Goldfeder, N.Y.L.J., Oct. 26, 1990 at 21 (1990).

158 See generally Zornberg, supra note 151, at 721–27.

159 See Broyde, supra note 28, at 103–16.

160 See Koeppel v. Koeppel, 138 N.Y.S.2d 366 (1954).

161 See Avitzur v. Avitzur, 58 N.Y.2d 108 (1983).

162 See Prenup Forms, The Prenup, http://theprenup.org/prenupforms.html (last visited Feb. 9, 2018).

163 See Broyde, supra note 28, at  66–70.

164 See Levmore, Rachel, Rabbinic Responses in Favor of Prenuptial Agreements, 42 Tradition 2948 (2009).

165 See Light v. Light, 2012 WL 6743605 (Sup. Ct. Conn., 2012).

166 See Feit, Yaacov, The Prohibition against Going to Secular Courts, 1 Journal of the Beth Din of America 3047 (2012).

167 See el Fadl, Khaled Abou, Legal Debates on Muslim Minorities: Between Rejection and Accommodation, 22 Journal of Religious Ethics 127, 145–51 (1994). For an important overview of various juristic approaches to the issues of Muslims ordering interpersonal relationships based on normative systems other than the sharia, see generally Andrew F. March, Islam and Liberal Citizenship: The Search of an Overlapping Consensus 97–258 (2009). Many juristic treatments of this issue stem from interpretations of Qur'an 5:44–50, which states,

and whosoever does not judge by what God has revealed [and instead judges by other laws], such [people] are unbelievers … And We have revealed to you, [Muhammad], the Book in truth, confirming that which preceded it of the Scripture and as a criterion over it. So judge between them by what Allah has revealed and do not follow their inclinations away from what has come to you of the truth.

Some Muslim scholars, such as Abu a-Ala al-Mawdudi and Syed Qutb used these passages to argue that there are only two kinds of normative systems in the world, the sharia, and the law of jahilliya, or ignorance, which includes any normative system other than the Islamic sharia. Muslims are obligated to order their affairs using the former, and prohibited from structuring relationships through or obeying the latter. For an overview of Qutb's approach, see Khatab, Sayed, “Hakimiyyah” and “Jahiliyyah” in the Thought of Sayyid Qutb, 38 Middle Eastern Studies 145 (2002). Many other Muslim scholars rejected this simplistic approach but have nevertheless maintained that, all things being equal, Muslims should strive to resolve disputes through Islamic means rather than in secular courts under secular law. See generally el Fadl, supra.

168 See Keegan, Judith M., The Peacemakers: Biblical Conflict Resolution and Reconciliation as a Model Alternative to Litigation, 1987 Journal of Dispute Resolution 1125, 16–19 (1987).

169 By this, we do not mean “more moderate” in any theological sense, but merely “less at conflict with secular society and its values,” and this flows obviously from the basic thrust of this article and the book it is based on. Secular law will refuse to validate those arbitration decisions that are predicated on conduct that is repugnant to the norms of secular society, and the withholding of that validation will make enforcing religious norms so much harder as such faith groups will have to enforce their norms in reference to a legal culture that will not help them through arbitration enforcement.

170 See Garnett, Richard W., Do Churches Matter? Towards an Institutional Understanding of the Religion Clauses, 53 Villanova Law Review 273–96, 292–93 (2008) (describing the importance that religious communities place on opportunities for self-governance).

171 See Jean Bethke Elshtain, On Religious Freedom and Religious Extremism (Sept. 9, 2011), The Religious Freedom Project, The Berkley Center for Religion, Peace, and World Affairs, https://berkleycenter.georgetown.edu/essays/jean-bethke-elshtain-on-religious-freedom-and-religious-extremism.

172 This was the thrust of much of the Fundamentalism Project of the University of Chicago in the late 1990s and early 2000s and the subject of an excellent edited work by the director of that project. Fundamentalism Comprehended (Martin E. Marty and R. Scott Appleby, eds. 1995).

173 See Islamist Extremism in Europe: Hearing 109-818 before the Subcommittee on European Affairs of the Senate Committee on Foreign Relations, 109th Congress 8–11 (2006) (Statement of Daniel Fried, Assistant Secretary for European and Eurasian Affairs, Department of State).

174 See, e.g., Gedicks, Frederick Mark, The Recurring Paradox of Groups in the Liberal State, 2010 Utah Law Review 4764, 51–55 (2010); Steiner, Henry J., Ideals and Counter-Ideals in the Struggle over Autonomy Regimes for Minorities, 66 Notre Dame Law Review 1539–60, 1551–55 (1991).

175 Roger Trigg, On Religious Freedom and Religious Extremism, The Religious Freedom Project, The Berkley Center for Religion, Peace, and World Affairs (Sept. 9, 2011), https://berkleycenter.georgetown.edu/essays/roger-trigg-on-religious-freedom-and-religious-extremism.

176 See Gedicks, supra note 174, at 51–55 (2010); Ayelet Shachar, Multicultural Jurisdiction: Cultural Differences and Women's Rights 81–85 (2001).

177 For more on this from a Jewish view, see Lichtenstein, Aharon, Torah and General Culture: Confluence and Conflict, in Judaism's Encounter with Other Cultures (Schacter, Jacob J., ed., 1997). This work is not the place to review this extensive literature that has been amply shown to be true and has been the focus of much work by the eminent Dr. Martin Marty of the University of Chicago.

178 See, for example, Jack Wertheimer, What You Don't Know about the Ultra-Orthodox, Commentary Magazine (July 1, 2014), https://www.commentarymagazine.com/articles/what-you-dont-know-about-the-ultra-orthodox/ (“Haredim have made the choice to sustain their lifestyle—and large families—by working the system to obtain government support. Significant percentages of Haredim in the U.S. collect food stamps, and benefit from Section 8 rent assistance, Medicaid, and other subsidies … What seems to set critics off is the life of poverty-by-choice embraced by the Haredim. How dare they have so many children and then rely upon government subsidies to help support their brood?”).

179 One merely needs to examine the reported decisions of the Beth Din of America, which are a model for what arbitration decisions ought to look like when they are seeking enforcement. They are reasoned, consistent with the requirements of secular law, and designed to be pleasing to those whose baseline of adjudication is secular, rather than religious. See 2 Journal of the Beth Din of America, http://s589827416.onlinehome.us/wp-content/uploads/2015/07/JBDAVol2.pdf (last visited Feb. 9, 2018) (Eight reported decisions).

180 This is discussed at great length in Broyde, supra note 1, chapter 6.

181 See Broyde, Bedzow & Pill, supra note 2.

182 See Helfand, supra note 14, at 1274–75.

183 See Harold J. Berman, Law and Revolution II: The Impact of the Protestant Reformations on the Western Legal Traditions (2006).

184 See James A. Brundage, The Medieval Origins of the Legal Profession: Canonists, Civilians, and Courts (2008).

185 See Alan Watson, Legal Transplants: An Approach to Comparative Law (1974).

186 See generally Boris I. Bittker, Scott C. Idleman & Frank S. Ravitch, Religion and the State in American Law 111–48 (2015).

187 See Jones, Harry W., Law and Morality in the Perspective of Legal Realism, 61 Columbia Law Review 799809 (1961).

188 See some of the works of the late Harold Berman as examples of this, in particular Law and Revolution I: The Formation of the Western Legal Tradition (1983) and Berman, supra note 183.

189 See Lynn Stout, Cultivating Conscience: How Good Laws Make Good People (2011).

190 See Chaim N. Saiman, Halakha: The Rabbinic Idea of Law (2018).

191 See Scott E. Paige, The Difference: How the Power of Diversity Creates Better Groups, Firms, Schools, and Societies (2008).

192 Id.

193 Id.

194 There is little doubt that Grutter v. Bollinger, 539 U.S. 306 (2003), is the seminal case for the idea that such diversity of “underrepresented minority groups” is a compelling interest of any organized society. See also Orentlicher, David, Diversity: A Fundamental American Principle, 70 Missouri Law Review 777812 (2005).

195 See Broyde, supra note 1, chapter 10.D.

196 At least one province in Canada has gone in a different direction, prohibiting the private arbitration of all family law matters according to any substantive law other than that of the Canadian province. A decade ago, Ontario considered the prospect of private arbitration by Islamic tribunals in accordance with religious law under general arbitration statutes. A report produced by the former attorney general recommended authorizing religious arbitration in family and inheritance law, subject to 46 proposed “safeguards.” See Marion Boyd, Dispute Resolution in Family Law: Protecting Choice, Promoting Inclusion 133–42 (2004), http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/boyd/fullreport.pdf (last visited Feb. 9, 2018). The report generated significant political backlash; ultimately, Ontario's Arbitration Act, S.O. 1991, c. 17 (Can.), and Family Law Act, R.S.O. 1990, c. F.3 (Can.), were amended to require that family arbitration be “conducted exclusively in accordance with the law of Ontario or of another Canadian jurisdiction.” Family Statute Law Amendment Act, S.O. 2006, c. 1 (Can.). “Family arbitration” was defined as “arbitration that … deals with matters that could be dealt with in a marriage contract, separation agreement, cohabitation agreement or paternity agreement.” Id. § 1(a).

197 This is exactly the history of the New York Jewish Divorce Law, where the state of New York enacted a special provision of the law regulating marriages done by clergy who have specific requirements for divorce. For more on this, see Broyde, supra note 28, at 138. This could also lead to the potential legal recognition of polygamous marriages performed under the auspices of religious authorities. For an in depth prospective view on what such a system might look like, see Mark Goldfeder, Legalizing Plural Marriage: The Next Frontier in Family Law (2017).

198 See S.D. v. M.J.R., 2 A.3d 412, 422-23 (N.J. Super. Ct. App. Div. 2010), a recent New Jersey case that evoked nationwide criticism of Islamic law and the relationship between Muslim religious norms and the American justice system. This case illustrates the importance of Islamic arbitral courts’ teaching their communities about the importance of following American law, even when it prohibits acts that may be permitted under religious law. It is worth noting that this case was affirmed on appeal.

199 Based on this, one suspects that communities like the Christian Domestic Discipline community will ultimately be subject to significant legal sanction over the use of force. See Welcome to CDD, Christian Domestic Discipline, http://christiandomesticdiscipline.com/home.html (last visited Nov. 25, 2014). Indeed, these communities seem aware of this issue and seek to address it through general consent. See “Nonconsensual” Consent? A Guideline to Consent in CDD, Christian Domestic Discipline, http://christiandomesticdiscipline.com/nonconsensualconsent.html (last visited Nov. 25, 2014). But, there is ample legal precedent for the idea that the state sanctioned monopoly on force—particularly in the area of domestic violence—will not be set aside without a much more particular and detailed consent by the woman being hit.

200 See 11 U.S.C. § 362 (2010).

201 See Helfand, Michael A., Fighting for the Debtor's Soul: Regulating Religious Commercial Conduct, 19 George Mason Law Review 157–96, 187–88 (2011).

202 Indeed, the more strongly the United States moves toward a contract model of marriage and sexual unions, the more religious arbitration will be used to implicitly validate plural marriage through arbitration. The decision in U.S. v. Windsor 570 U.S. 744 (2013) struck down the Defense of Marriage Act, which prohibited same-sex marriage and polygamy with its definition of a marriage as “a legal union between one man and one woman as husband and wife.” This opened up a greater possibility for allowing legal plural marriages. See Goldfeder, supra note 197, at 6. On the other hand, if the purpose of government regulations that curb religious freedom in a liberal western society is the prevention of harmful vices at a minimal expense to religious freedom, then if marriage is contractual, it follows that the permissibility of plural marriages generally is logical with regulations only seeking to mitigate potential abuses of the institution rather than the institution itself.

203 Family Statute Law Amendment Act, S.O. 2006, c. 1 (Can.).

204 See generally Gunn, T. Jeremy, Religious Freedom And Laïcité: A Comparison of the United States and France, 2004 Brigham Young University Law Review 419506 (2004); Troper, Michel, French Secularism, Laïcité, 21 Cardozo Law Review 1267–84 (2000).

205 This proposition hardly needs defending as a general idea: the delegation of “police powers” to a private arbitration tribunal—religious or secular—would be a flagrant violation of the Federal Arbitration Act as well as a deep violation of the historical common law norms concerning the role of arbitration. See Broyde, supra note 1, chapter 1.

206 The most striking example of this is consensual non-monogamy, which is not part of the Judeo-Christian tradition, but is common in modern America. See Brenden Shucart, Polyamory by the Numbers, Advocate (January 8, 2016), https://www.advocate.com/current-issue/2016/1/08/polyamory-numbers.

207 As noted in Broyde, supra note 28, at 161–62.

208 Carl N. Degler, Out of Our Past: The Forces That Shaped Modern America 296 (1970) (“[T]he metaphor of the melting pot is unfortunate and misleading. A more accurate analogy would be a salad bowl, for, though the salad is an entity, the lettuce can still be distinguished from the chicory, the tomatoes from the cabbage.”).

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