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).

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3 Responses

  1. A.J. Sutter says:

    What about when religious law and state law are in conflict — shouldn’t there be a very clear public policy exception, so that review is available?

    Think of the New York get (Jewish divorce document that the husband must present to the wife) laws: the statute was enacted to permit a civil divorce where a husband refuses to grant a divorce under religious law. As I understand it, thanks to the statute the wife can now obtain a civil divorce even if the husband refuses to cooperate, but without a get there isn’t a religious divorce (so I assume she’d have a hard time finding a rabbi to officiate if she wants to re-marry, as long as husband #1 remains obstinate).

    If the parties now have a pre-nup with an arbitration clause that says the divorce will be governed by halachic law, does that mean the wife couldn’t even obtain a civil divorce? I’m not sure how things work in NY: under no-fault, would her ability to get the civil divorce normally be automatic after the lapse of time, as in CA? If so, could the husband challenge that in court by pointing to the arbitration clause?

    Another issue is what if there are local variants of religious law? Could the couple stipulate in a pre-nup to arbitration bound by the jurisprudence of the Shari’a court in the UAE that held that wife-beating is OK if no visible marks are made? (Well, we’d say it was dicta in the recent case, but assume for the sake of argument either that the distinction is immaterial or that it was a holding.) Maybe that wouldn’t impact enforcement of the criminal law against domestic violence, but what if the contract said that if the wife ever mentioned domestic violence to the police that she’d forfeit all rights to alimony and child support?

    I kind of doubt that a “subtle approach” to arbitration in these cases is really the right one — seems like either there should be some very clear limitations put onto arbitration governed by religious law, or else take the Canadian approach. Though in the loony death-spiral into which US politics seems recently to have swooned, I wonder if either of those alternatives has a prayer.

  2. Michael Helfand says:

    I definitely agree that a subtle approach is necessary to apply the Federal Arbitration Act to religious arbitration. I’m in the process of drafting an article on the topic, which I’m hoping to submit in the spring entitled “Submitting Disputes for Religious Adjudication: The Enforceability of Religious Arbitration Awards.” For those interested, an abstract is available at It will also be the topic of conversation for Jewish Law Section’s panel at the annual AALS Conference, entitled “Rabbinical Courts in American Law,” where I’ll have the pleasure of speaking alongside Douglas Laycock and Michael Broyde.

  3. Lawrence Cunningham says:

    Michael Helfand has an interesting follow-up post at: