A Legal Analysis of Religious Arbitration

Abstract

Religious arbitration is on the rise in the United States. Particularly noteworthy is its expansion beyond disputes that are confined to a particular congregation: religious arbitration can now be found in the commercial context, binding customers of religious proprietors and other non-adherents. This has been met with criticism calling into question the very legality of the practice. This essay will identify and examine the most common legal issues raised by religious arbitration: the enforceability of arbitration agreements in general, along with constitutional concerns under both the Free Exercise Clause and the Establishment Clause appurtenant to the phenomenon. As will be seen, religious arbitration poses a particular set of challenges but, simultaneously, demands an irreducible level of legal recognition.

Keywords: Religious Arbitration, FAA, Free Exercise