Faith-Based Arbitration Increasing Across the U.S.

Originally published by Beth Graham.

The arbitration process has the potential to eliminate many of the negative aspects of litigation including lengthy delays, inefficiencies, and confidentiality concerns. Historically, religious arbitral tribunals have used the Bible or other faith-based law to settle disputes among family and religious community members. Increasingly, however, such tribunals are reportedly being utilized to solve secular disputes.

According to a recent article titled “In Arbitration We Trust? Exploring religious arbitration as an alternate method of dispute resolution,”

Religious tribunals regularly adjudicate cases in the same way as conventional arbitration. However, rather than relying on secular law, as the name suggests, such arbitration is typically based on religious law, such as the Bible.

Supporters of religious arbitration argue that it allows people to resolve their disputes in accordance with their deeply held religious beliefs. Critics, on the other hand, argue that it potentially strips individuals of the protections of secular law, and that judicial enforcement of such clauses violate the separation of church and state.

They often argue that complainants’ First Amendment rights are being infringed because they must unwillingly participate in what amounts to religious activity. Further, because religious arbitration must depend on the interpretation of religious doctrine, there is great concern that such arbitrators may discriminate against those who no longer have the same beliefs as a result of the underlying dispute.

Despite such concerns, arbitration based on religious law in the employment context has been upheld by various courts on numerous occasions. In Prescott v. Northlake Christian School, the Fifth Circuit upheld a Christian arbitrator’s decision that was based on religious principles rather than substantive state law. Similarly, a Texas appeals court ruled that a private teacher “presented no evidence to controvert the validity and enforceability of a religious arbitration agreement that she voluntarily signed,” after the teacher claimed she would be suffer prejudice in such a proceeding in Woodlands Christian Academy v. Weibert.

Faith-based arbitral provisions are often upheld in other contexts as well. For example, a federal judge in Florida reportedly enforced a religious arbitration clause requiring a former Scientologist to pursue a fraud claim against the church before a panel of Scientologists earlier this year. Similarly, the Supreme Court of Texas refused to review a contract dispute which contained a Saudi “Choice of Law” provision and an arbitration clause requiring an arbitrator to be “a Saudi national” or a Muslim foreigner in In re Aramco Services Co.

In response to the Aramco case, Albert D. Spalding Jr., Attorney and Associate Professor of Legal Studies at Wayne State University, recently explored “the increasing use and enforceability of faith-based arbitration clauses in international contracts and transactions” in an article titled “Faith-Based Arbitration Clauses as a Global Alternative to Dispute Resolution.” (You may read more about Professor Spalding’s article in an earlier Disputing blog post.)

It is clear that additional faith-based arbitration cases are likely to be reviewed by U.S. courts in the coming years. Stay tuned to Disputing for more on future developments in this emerging area of arbitration.

Photo credit: Ryk Neethling / Foter.com / CC BY

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