Making ‘Biblical Justice’ Mandatory: the Growth of Religious Arbitration Clauses

November 4, 2015
Guest Post

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.

What is more, the U.S. Constitution bars governmental bodies from becoming excessively entangled with religion. Contrary to this principle, religious arbitrations may put courts in the business of enforcing religious judgments, for arbitration rulings are judicially enforceable under federal and state law.

The Constitution also prohibits governmental bodies from delegating public authority to religious groups. A court acts in tension with this rule when it enforces a contractual clause vesting judicial authority exclusively in a religious tribunal and therefore refuses to decide a dispute that it otherwise would have the right to adjudicate.

The Constitution further bans governmental bodies from coercively subjecting citizens to religion or funding institutions that do so. For this reason, religious arbitration clauses are especially questionable legally when used by social-service providers that render services that are financed, sponsored, or mandated by the government. 

The Times article provides a disturbing example from this context. To avoid jail, a gay youth agreed to a sentence that required him to undergo drug “treatment” at Teen Challenge, a proselytizing evangelical organization that claims that “the ‘Jesus Factor’ is . . . the only true answer to the drug problem.”  (If the court did not offer the youth a non-religious alternative to Teen Challenge, then that was a constitutional violation in itself.)

The youth signed a contract that contained a mandatory religious arbitration clause. Facing potential incarceration, the youth undoubtedly felt that he was in no position to object to the clause – if he even read it at all.

Soon after Teen Challenge subjected him to gay-conversion therapy, the youth died of a drug overdose. As a result of the religious arbitration clause, the youth’s mother was unable to pursue a wrongful-death case against Teen Challenge in secular court and learn the details of the events that led to her son’s death.

More cases involving religious arbitration will likely make their way through the courts in upcoming years. Hopefully, courts will recognize the unfairness and illegality of using religious law to decide disputes that go beyond internal church affairs, and will put an end to this latest effort by religious institutions to force their doctrines on others.