Religious Arbitration and the Establishment Clause
37 Pages Posted: 28 Sep 2017 Last revised: 28 Apr 2022
Date Written: February 23, 2018
Religious arbitration agreements—which compel parties to resolve their private legal disputes before a religious tribunal or according to religious doctrine—are often enforced by courts. This Article argues that their enforcement may violate the Establishment Clause. In particular, the “nondelegation doctrine”—first articulated in Larkin v. Grendel’s Den—limits the government’s ability to delegate its power to religious institutions. The concern is not that the government would entangle itself in religious affairs, but the opposite: that religious institutions would acquire control over a core governmental function. Under this doctrine, the enforcement of religious arbitration agreements may constitute a delegation to religious institutions of a core governmental function, namely, the adjudication and enforcement of the private law. Such a delegation of governmental authority may be problematic either because it favors some religious groups over others, or because it allows religious institutions to acquire unchecked authority over their members and participants. Additionally, this Article argues that enforcement of religious arbitration agreements is not required by other Establishment Clause doctrines such as the “religious question” doctrine or the principle of neutrality toward religion.
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