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Religious Arbitration of Civil Disputes:

For an example of how this works in the U.S., see Easterly v. Heritage Christian Schools, Inc. (S.D. Ind. Aug. 26, 2009). As the case name suggests, this involved Christian arbitration, but the secular legal principles would be the same for Muslim arbitration as they would be for Jewish arbitration.

Certainly some matters might by law not be subject to arbitration; I believe that's the rule for child custody decisions in many states. Some arbitration provisions may be set aside if there's evidence that they were entered into under threat of violence or some such (though economic need or social pressure is generally not a reason for that, I think, especially since many businesses enter various contracts because of economic need or pressure from business community norms). Some remedies couldn't be implemented through arbitration. Some sorts of procedures -- perhaps including the application of procedural rules that discriminate based on the parties' sex -- might be prohibited even despite the broad deference to arbitration decisions.

But that's true for all forms of arbitration, whether secular or religious. There's certainly nothing alien to American law in having arbitration tribunals apply religious law (or for that matter the laws of foreign countries with legal systems quite different from ours). Nor is there any constitutional authorization for distinguishing Jewish and Christian arbitration from Muslim arbitration based simply on the denominations involved (though again all these arbitrations are subject to various relatively deferential but not toothless secular constraints, which may of course play out differently to the extent that different arbitral bodies operate differently).

A few relevant passages:

Easterly ... argues that "the arbitration provision in the parties' contract provides for a process by which Ms. Easterly must forego vindication of her substantive rights guaranteed by the ADEA and ADA and Indiana contract law, and instead rely on biblical scripture to define her rights." Easterly points to the fact that the RPCC [Rules of Procedure for Christian Conciliation] provide that "Conciliators shall take into consideration any state, federal, or local laws that the parties bring to their attention, but the Holy Scriptures (the Bible) shall be the supreme authority governing every aspect of the conciliation process." While it is true that "a substantive waiver of federally protected civil rights will not be upheld," Easterly does not explain how this provision constitutes a waiver of her rights under the [Americans with Disabilities Act] and the [Age Discrimination in Employment Act]. [Substantive rights under antidiscrimination law, as opposed to rights under many other kinds of law, generally cannot be waived up front by contract. -EV] The provision requires the arbitrator to take into consideration the applicable law, and Easterly fails to articulate how biblical principles might conflict with that law to her detriment. In the absence of such a showing, the Court declines to find that submission to arbitration under the RPCC will deprive Easterly of her right to vindicate her statutory rights.

Easterly also argues that "[t]he agreement to biblically-based arbitration in Ms. Easterly's teaching contract cannot be enforced because the processes are structurally biased and procedurally inadequate." However, Easterly again fails to articulate how this is so. "The Supreme Court has repeatedly counseled that the FAA leaves no room for judicial hostility to arbitration proceedings and that courts should not presume, absent concrete proof to the contrary, that arbitration systems will be unfair or biased." She further objects to the fact that the RPCC differ from the Indiana Alternative Dispute Resolution Rules with regard to confidentiality. However, again, "under the FAA the parties are free to agree to any governing rules, and the courts will enforce whatever system they choose." ...

The FAA "is a congressional declaration of a liberal federal policy favoring arbitration agreements," and "that questions of arbitrability must be addressed with a healthy regard for the federal policy favoring arbitration." Easterly has pointed to nothing about the arbitration agreement in this case that would override this policy.

troll_dc2 (mail):
There are two interesting observations in footnote three.

In response to the contention that


"the arbitration provision in the parties' contract provides for a process by which Ms. Easterly must forego vindication of her substantive rights guaranteed by the ADEA and ADA and Indiana contract law, and instead rely on biblical scripture to define her rights."

the court wrote in its opinion:

The provision requires the arbitrator to take into consideration the applicable law,2 and Easterly fails to articulate how biblical principles might conflict with that law to her detriment.3


The first part of footnote three reads:


3If it turns out that the arbitrator determines that they do, Easterly's remedy lies in this Court. An arbitrator's decision is subject to being overturned by a reviewing court for "manifest disregard" of the law, and "where a governing legal principle is well defined, explicit, and clearly applicable to the case, and where the arbitrator ignored it after it was brought to the arbitrator's attention in a way that assures that the arbitrator knew its controlling nature, his disregard of it is 'manifest.'" Jonites v. Exelon Corp., 522 F.3d 721, 726 (7th Cir. 2008) (citation and internal quotation marks omitted).


So the court is putting the arbitrator on notice to follow the ADEA and the ADA to the extent that the plaintiff raises issues under them, or else the decision will be set aside.

The other part of the footnote states:


Easterly's citation to Jones v. Wolf, 443 U.S. 595 (1979), and other cases for the proposition that this Court's review of a Christian arbitrator's decision is somehow limited by the First Amendment are misplaced. The arbitrator's decision will not be the decision of a "religious tribunal" regarding a religious matter; instead, it will be the resolution of a legal claim that will be subject to judicial review the same as if it had been conducted pursuant to the American Arbitration Association's procedural rules or any other set of secular procedures.


So there is said to be no constitutional problem here. I hope that this is so.

So if the arbitrator has to follow secular law or risk having the decision set aside, what is the big deal? But will the plaintiff be able to obtain the same sort of discovery that she could get in court? What other procedural differences might there be (besides the absence of a jury trial)? The opinion does not say.

Under the ADEA and the ADA, she would not be liable for attorneys' fees even if she did not prevail unless her claim was legally frivolous. She would not need to rely on the good graces of a court to avoid having to pay.

One problem with arbitration of employment disputes is that the employer is often a repeat player and the arbitrator has to be mindful of this if he hopes to achieve repeat business. This may bias an arbitrator to rule for the employer, but the bias is hard to detect. Apparently, the rules here call for the appointment of a single arbitrator. Is there a possibility for this problem to arise here? We do not know.

All in all, pre-dispute arbitration requirements are loved by employers because they think that arbitration gets them better results than going the statutory route.
9.11.2009 4:27pm
troll_dc2 (mail):
For anyone who cares, here are The Guidelines for Christian Conciliation.
9.11.2009 5:36pm
Mark N. (www):
I wonder if this will be an avenue that leads to a political backlash against arbitration. As you point out, this case involved a Christian group's arbitration, but there's no good reason to distinguish, say, a Sharia court's arbitration. The Sharia court's decisions, as with those of all arbitration bodies, would still be reviewable, but I could see it causing a big stink that it was allowed to adjudicate disputes at all.
9.11.2009 5:38pm
troll_dc2 (mail):

I wonder if this will be an avenue that leads to a political backlash against arbitration. As you point out, this case involved a Christian group's arbitration, but there's no good reason to distinguish, say, a Sharia court's arbitration. The Sharia court's decisions, as with those of all arbitration bodies, would still be reviewable, but I could see it causing a big stink that it was allowed to adjudicate disputes at all.


It would depend. If the Sharia court's decision contravened our laws, I doubt whether it could be enforced. The Supreme Court has been quite emphatic that you do not give up substantive rights when you engage in alternate dispute resolution.
9.11.2009 5:43pm
ReaderY:
Why casually assume the public would be prejudiced when it comes to religion and would treat a Moslem tribunal differently from a Christian one? They let Moslem people vote, after all.
9.11.2009 5:52pm
troll_dc2 (mail):

Why casually assume the public would be prejudiced when it comes to religion and would treat a Moslem tribunal differently from a Christian one? They let Moslem people vote, after all.


The same principles of review would apply regardless of the religion of the tribunal. The tribunal is limited by federal and state law, but it is otherwise free to reach its own results.
9.11.2009 5:56pm
Mark N. (www):

Why casually assume the public would be prejudiced when it comes to religion and would treat a Moslem tribunal differently from a Christian one? They let Moslem people vote, after all.

Well, there's been quite a bit of ruckus over the subject in Canada, and the setup there is not much different from the American one--- Sharia courts as arbitration tribunals whose decisions are subject to review in the regular courts for compliance with Canadian law.

Perhaps Americans are more tolerant of religious arbitration than Canadians, but I suspect it would only take one outrageous (even if quickly set aside) decision of a Sharia tribunal to cause a significant backlash of people asking why such tribunals exist and are permitted to hear disputes.
9.11.2009 6:27pm
troll_dc2 (mail):
The problem with going after Sharia tribunals is one of equal protection. How can you justify restricting them but not Jewish and Christian ones? You can require all of them to adhere to basic principles of American (state and federal law). Beyond that, you are engaging in discrimination (and also treading on free exercise).
9.11.2009 6:38pm
troll_dc2 (mail):
Islamic law discriminates against women in many ways. Any decision by a Sharia tribunal to implement that discrimination would violate our laws and would be nullified.

By contrast, there is not much that a Jewish or Christian tribunal would do, implementing religious principles, that would cause the same problem.
9.11.2009 6:42pm
Mark N. (www):

The problem with going after Sharia tribunals is one of equal protection. How can you justify restricting them but not Jewish and Christian ones? You can require all of them to adhere to basic principles of American (state and federal law). Beyond that, you are engaging in discrimination (and also treading on free exercise).

I agree with that, which is why I'm suggesting that a high-profile backlash against a Sharia tribunal is one possible catalyst for a wholesale backlash against arbitration. People will ask, "why was this Sharia court allowed to hear a case in America in the first place?", the answer will be "the FAA permits it", and the FAA will consequently find itself under attack.
9.11.2009 6:50pm
troll_dc2 (mail):

The problem with going after Sharia tribunals is one of equal protection. How can you justify restricting them but not Jewish and Christian ones? You can require all of them to adhere to basic principles of American (state and federal law). Beyond that, you are engaging in discrimination (and also treading on free exercise).

-----
I agree with that, which is why I'm suggesting that a high-profile backlash against a Sharia tribunal is one possible catalyst for a wholesale backlash against arbitration. People will ask, "why was this Sharia court allowed to hear a case in America in the first place?", the answer will be "the FAA permits it", and the FAA will consequently find itself under attack.


But the FAA will survive. The companies that like compulsory arbitration will fight like hell to keep it, and the unions will be divided. So even though Congress is nominally controlled by the Democrats, I would not expect any legislation on the subject.
9.11.2009 6:53pm
BZ:
Actually, going to a sharia court is not the only, nor perhaps the most likely, method for resolving similar situations with Muslims. I had a case involving a mosque where the matter, after the initial judicial steps were taken, was resolved quite easily through the use of Islamic mediation. Part of the case involved whether one or both sides were faithful to the Islamic principles set forth in a governing document, and the secular court was incompetent to decide those (not to mention barred from doing so). Mediation was initiated by the parties, carried forward by the community, and resulted in a resolution of the case. Although the resolution was not, in my view, the correct resolution of the case under secular principles, the parties themselves were satisfied.
9.12.2009 5:57pm
ReaderY:

Although the resolution was not, in my view, the correct resolution of the case under secular principles, the parties themselves were satisfied.


This is, of course, the essential poijnt where civil resolution of civil disputes is concerned.
9.13.2009 12:37am
ReaderY:

The problem with going after Sharia tribunals is one of equal protection. How can you justify restricting them but not Jewish and Christian ones? You can require all of them to adhere to basic principles of American (state and federal law). Beyond that, you are engaging in discrimination (and also treading on free exercise).



The idea that a state can require a religious tribunal to adhere to any "basic principles of American law" would quickly run afoul of the Establishment Clause. A secular court can enforce their judgment or not enforce their judgments, but it can't intrude on religious tribunals' internal operations or require them to do or adhere to anything.
9.13.2009 1:54am
troll_dc2 (mail):

The idea that a state can require a religious tribunal to adhere to any "basic principles of American law" would quickly run afoul of the Establishment Clause. A secular court can enforce their judgment or not enforce their judgments, but it can't intrude on religious tribunals' internal operations or require them to do or adhere to anything.


I should have been clearer. A religious tribunal can do whatever it wants, but whether its resolution will be enforced or respected by a secular decisionmaker will depend on whether the tribunal deprives a party of rights that the party would be entitled to under secular law. That is, the tribunal cannot refuse to recognize a statutory cause of action, it cannot deprive a party of the right to present its case in a full and fair manner, it cannot limit the available remedies to less than those available in a secular proceeding, and it must be impartial.
9.13.2009 11:20am

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