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?

As Eugene notes, there is a lot to commend in the court’s decision – to my mind, especially in light of current constitutional doctrine.  But this type of outcome still worries me.  It is very possible that at this stage of the litigation – after the nature of the dispute is clear to both parties – that one of the parties might not even try to appoint an “Orthodox” arbitrator and may do so because they fear that an arbitration award issued by Orthodox rabbis will not be in their favor.  Put differently, there is nothing ensuring at this stage that the arbitration that will take place between the parties will approximate the arbitration that the parties originally agreed.  Maybe more importantly, the parties might have – on the front end – preferred judicial resolution of their dispute had they known that there would be no guarantee the arbitration panel consisted of three Orthodox rabbis.  In this way, severing the “three Orthodox rabbis” provision might lead to problematic outcomes by fundamentally altering the selected form of dispute resolution.

On the flipside, the parties may not have wanted to go to court – they might have – again, on the front end – been dedicated to resolving the dispute outside of court out of a sense of religious obligation (for more on religious obligation and religious arbitration, see my article here).  As a result, not severing the “three Orthodox rabbis” provision and sending the parties to court on Establishment Clause grounds also seems problematic.

This all brings me back to the following; are we really so committed to the view that a court could not figure whether proposed arbitrators are Orthodox?  Or, alternatively, are we worried about the potential entanglement or endorsement concerns such an inquiry would raise?  In my article, I try to argue that these concerns are exaggerated.  Courts can use experts and other fact-finding methods (as they do for foreign law questions) to answer religious questions; the entanglement concerns seem over-emphasized given that one-shot judicial decisions do not entail protracted oversight over religious institutions; and endorsement concerns might fall by the wayside once we consider how some of these disputes play out in light of private law doctrine (check out the end of the article for more explanation on this last point).

In this case, one wonders whether the court might have waited to see who the parties selected and determined whether or not it could safely conclude that  the selected arbitrators satisfied the “three Orthodox arbitrators” provision in the parties contract.  In this way, the court might have at least tried to structure the method of dispute resolution in accordance with the original arbitration agreement.