The Future of Religious Arbitration in the United States: Looking Through a Pluralist Lens

Abstract

In recent years, religious arbitration has received increasing attention both in the American press and academy. For some, this attention is driven by concern that state enforcement of decisions issued by religious tribunals has the power to undermine the objectives of the U.S. legal system. For others, it is driven by a recognition that religious arbitration enables communities to enhance their process of dispute resolution by ensuring that it comports with shared religious principles and values. And, as is often the case, both perspectives contain important elements of truth. As a paradigmatic legal plurality institution, religious arbitration has the capacity to both enhance and undermine the U.S. legal system. But if U.S. law is to capitalize on the growing religious arbitration system within its jurisdiction, it must identify both the range of unique benefits religious tribunals provide as well as the unique challenges they present. This chapter takes a first step in that direction, using legal pluralism as a lens to explore the motivations driving the religious arbitration regime in the United States. In so doing, it considers how both state and non-state law can benefit from the religious arbitration system, and how those dual objectives require U.S. law to tinker with its treatment of religious arbitration so as to unlock its full potential.

Keywords: religious arbitration, arbitration, religious tribunals, First Amendment, Establishment Clause, legal pluralism