by Alex J. Luchenitser, Associate Legal Director for Americans United for Separation of Church and State
In recent years, religious groups have attempted to use the legal system to impose their beliefs on others in a variety of areas, from health-insurance coverage and healthcare services, to discrimination in public accommodations and employment. Religious groups have typically done so by claiming that they have a statutory or constitutional “religious freedom” right to discriminate, deny services, or be exempted from laws or regulations.
The New York Times exposes another way in which religious groups are attempting to foist their faith on those who might not share it. More and more frequently, religiously affiliated institutions are requiring people with whom they interact to sign contracts that require any disputes to be resolved through religious arbitration instead of the secular court system.
Such religious arbitration is typically based on religious law, such as the Bible. Arbitration sessions are often opened with prayers. And the arbitrators are typically adherents of the religion of the entity that is being sued.
Religious arbitration may make sense in some circumstances. Courts are prohibited from resolving disputes relating to certain internal affairs of a house of worship, including controversies that require interpretation of religious doctrine or involve the selection of ministers. In such situations, religious arbitration may provide the best chance for a disagreement to be resolved fairly.
But religious arbitration clauses have spread far beyond contracts between houses of worship and their employees or members. The Times reveals that such clauses are being used by a variety of entities and businesses that serve the public, including substance-abuse programs, providers of vacation houses, flooring vendors, and even a sponsor of a fishing tournament.
In these kinds of circumstances, religious arbitration functions as yet another means for religious groups to force the doctrines of their faiths upon people who do not share those beliefs, and to avoid legal rules that apply to others. Religious arbitration, in that context, is also suspect from a legal and constitutional standpoint.
Although courts have generally upheld contractual clauses that mandate arbitration to resolve disputes, some of the reasoning underlying such decisions does not apply to religious arbitration clauses: Secular arbitrators usually must rely on the same legal principles that courts do; religious arbitrations follow religious law. Secular arbitrations are subject to limited review by the courts; courts cannot review religious arbitrations at all, however, because courts are barred from interpreting religious law. And secular arbitrators must be impartial; religious arbitrations, on the other hand, may be conducted by the very same religious groups that are being sued.