I’ve been editing the latest draft of my forthcoming article “Litigating Religion” in anticipation of presenting the piece at this year’s Stanford/Yale/Harvard Junior Faculty Forum (I’ve also been pleased to have the piece discussed previously on the CLR Forum here and here). The primary thesis of the article is that the Establishment Clause should not be interpreted to prohibit courts from adjudicating religious questions; instead, it should be interpreted to prohibit courts from adjudicating claims properly within the province of religious institutions. Put differently, courts should resolve religious disputes where no other religious institution is capable of doing so.
One section of the article is dedicated to discussing court cases that raise religious questions, but where there is no religious institution that has an interest and the authority to resolve the dispute. Given that I’m always looking for more examples, I was particularly pleased to see a post from Eugene Volokh about a 2007 case (only recently posted on Westlaw) that fits the bill where a court refused to enforce an arbitration provision that called for the appointment of “Three Orthodox Rabbis” as arbitrators. The court refused to enforce the provision on the grounds that “[t]he Establishment Clause of the First Amendment prohibits a civil court from resolving issues concerning religious doctrine and practice.” Thus determining whether an arbitrator is Orthodox – so as to satisfy the arbitration agreement – would run afoul of the First Amendment. Instead, the court severed this provision from the arbitration agreement and authorized each party to select an arbitrator and have those two arbitrators select a third. As the court noted, “[a]lthough the provision requiring orthodox arbitrators is unenforceable, the parties are free to select arbitrators, who in their own judgment, meet the religious requirement.”
But is this the preferred outcome?