Snatching Policy from Hysteria: Sharia and the FAA
Discussion of the relation between civil and religious law has enriched both for centuries. But this political season’s pugilistic talk seems more threatening to both. That’s so at least for hysterical depictions of what’s at stake.
Even amid exaggeration, though, there’s a surprising opportunity for enrichment. The Economist magazine flagged it this week (and a note in the Fordham Law Review a few years ago spelled it out): to improve arbitration law in the United States.
Devotees of religious law—whether Sharia (Islamic), Canon (Catholic), Halakha (Jewish) or something else—usually envision space for civil law alongside religious law. They don’t believe, as some contemporary hyperbolic politicos suggest, that proponents of Sharia in the United States imply repealing the U.S. Code.
But there are challenging areas of tension between religious and civil bodies of law crying for attention. The best example concerns family issues arising from marriage, divorce and child custody. Special problems arise when marrying couples sign pre-marriage contracts saying all those matters are to be governed by religious law and decided by a religious tribunal.
Most countries have developed reasonably defined ways to handle such situations. Some recognize those religious tribunals generally, others subject them to rigorous oversight, and still others, including some Canadian provinces, deny they have any effect on civil law.
The United States hasn’t developed a good response, but should. It instead relies on the all-purpose Federal Arbitration Act. It essentially remits to binding and unreviewable arbitration all disputes arising from a contract containing a written arbitration clause.
To illustrate the problem, suppose a written prenuptial contract on massively lopsided terms, as to which side can sue for divorce, who gets what assets, how children are supported and so on. It states some religious law as governing and directs all disputes to be resolved by a religious organization applying that law. (Most major religions have well-established organizations available for these purposes.)
After a decade of marriage and child-rearing, including periods of alleged physical and emotional abuse, the victim wants out. The abuser resists, citing provisions of applicable religious law that either forbid the split, or insisting on lopsided terms that law dictates. The victim sues in a civil court in the United States, asserting that civil not religious law governs. The other promptly points to the arbitration clause.
Under the Federal Arbitration Act, as the US Supreme Court reads it, the court would direct the case to arbitration. And it isn’t likely that a court would thereafter refuse to enforce the arbitration award. It would have to provide a result that would manifestly disregard civil law or violate public policy in the United States, something few arbitration awards have been found to do, and it’s easy to imagine wide judicial deference to religious arbitration awards. If the contract’s terms entangled religious and civil law, moreover, courts would hesitate to intervene on First Amendment grounds.
Most resulting awards are probably fine—indeed, thousands of cases a year are handled without incident or objection. But this appears to be a lacuna in the law that deserves more serious general discussion than it seems to have received. Congress is currently debating revisions to the FAA for consumers and employees, generally proposing to put them out of its scope, and the Supreme Court is addressing affected aspects of those contracts, this term and last.
Now would be a propitious time for Congress and the country to give attention to the FAA’s relation to religious arbitration. Unlike the crude approach to employee and consumer arbitration clauses, though, a more subtle approach to religious arbitration is warranted. Both to respect the varying religious traditions and protect First Amendment mandates, it would be better to establish some special tests for assent to arbitration or to the governing law, rather than to police the law itself.
When taking up the point in the U.S., it would also help to recognize that some faiths appear to prefer mediation to arbitration. Though the FAA has long directed enforcing written arbitration clauses, it hasn’t done that for mediation clauses (or other tools of dispute resolution). It may be a good time to reconsider that omission for the broader range of contracts too.
Sources: The Economist (Oct. 16, 2010, pp. 16-17 & 71-72); Caryn Litt Wolfe, Fordham Law Review, vol. 75, p. 427 (2006).