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Religious Arbitration and the Establishment Clause

60 Pages Posted: 28 Sep 2017  

Brian Hutler

University of California, Los Angeles (UCLA) - School of Law; University of California, Los Angeles (UCLA), Department of Philosophy

Date Written: March 20, 2017

Abstract

Religious arbitration agreements, which compel parties to resolve their legal disputes through religious tribunals, are increasingly common. This Article argues that judicial enforcement of religious arbitration agreements may violate the Establishment Clause’s nondelegation doctrine. First articulated in Larkin v. Grendel’s Den, the nondelegation doctrine prevents the government from making a delegation of its power to religious institutions that results in a “fusion” of governmental and religious functions. The concern is not that the government would entangle itself in religious affairs, but that religious institutions would acquire unilateral control over a properly governmental function. In particular, religious arbitration agreements allow religious tribunals to acquire unilateral control over the resolution of civil law disputes. The Article argues further that the religious question doctrine supports the conclusion that courts should not enforce religious arbitration agreements when the underlying civil law dispute turns on a legal, rather than a religious, question. The Article concludes by arguing that the principle of government neutrality toward religion also supports the nonenforcement of religious arbitration agreements because of the need to maintain a stable separation between church and state.

Suggested Citation

Hutler, Brian, Religious Arbitration and the Establishment Clause (March 20, 2017). Ohio State Journal on Dispute Resolution, Vol. 33, No. 3, 2018. Available at SSRN: https://ssrn.com/abstract=3042906

Brian Hutler (Contact Author)

University of California, Los Angeles (UCLA) - School of Law ( email )

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