The Status of Religious Arbitration in the United States and Canada
Wachtell, Lipton, Rosen & Katz
April 2, 2011
Santa Clara Law Review, Forthcoming
This article discusses, and challenges, the status of religious arbitration in the United States and Canada. Religious arbitration - defined as the settling of disputes informally by religious principles, rather than by having recourse to the courts - has been written about considerably in recent years. Many writers have argued that religious arbitration can be used to enhance religious freedom, and have discussed how secular rights can be protected before religious tribunals.
This article makes the opposite argument. It examines religious arbitration by looking at constitutional law on free exercise in the United States and Canada, and argues that religious arbitration agreements and awards have a limiting effect on religious freedom. Therefore, these agreements and awards should only be enforced in civil courts when courts are not competent to handle the disputes themselves.
Courts lack the required competence when the subject-matter of the dispute is inherently religious. In such situations, the freedom-promoting aspect of a court’s enforcement of a religious arbitration agreement or award outweighs the negative effect on freedom of religion, because the courts can provide necessary support for religious institutions. However, when the subject-matter of a dispute is entirely secular, there is no such benefit for freedom of religion. Therefore, freedom of religion is constrained by binding religious arbitral agreements and awards on secular matters, and courts should decline to enforce such agreements or awards.
Number of Pages in PDF File: 57
Keywords: Law and religion, comparative law, arbitration, dispute resolution, First AmendmentAccepted Paper Series
Date posted: June 1, 2011 ; Last revised: October 24, 2011
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