Mike, thanks for the very interesting posts you’ve been doing this month. I wonder if I could ask about something in your last post, in which you discuss the case with the arbitration agreement calling for “three Orthodox rabbis.” A state court refused to enforce the agreement, since enforcement might have required the court to decide whether the named arbitrators were, in fact, “Orthodox,” which would impermissibly have entangled the court in a religious question. You suggest that the court’s concern with entanglement was overstated, and I have some sympathy with that view.

I wonder whether last week’s Second Circuit decision in Commack Self-Service Kosher Meats has any implications for your argument. In that case, the Second Circuit upheld a NY law requiring sellers of kosher products to indentify which private organization had made the kosher certification. The law did not raise entanglement concerns, the court argued, because the law did not require civil government to certify that particular products were, in fact, “kosher.” The law simply facilitated private decision-making by requiring sellers to disclose the basis for their assertions about their products. If sellers wished to sell, and consumers wished to purchase, products with a “kosher” certification from the United Methodist Church, for example, the state would not object.

Might a mechanism that defers to the decisions of private organizations avoid entanglement issues in arbitration agreements? For example, we could require parties who seek religious arbitrators to specify ahead of time which private associations will name the arbitrators. For example, the parties could agree that any disputes between them “will be resolved by three Orthodox rabbis from the Beth Din of America.” In enforcing such an agreement, a civil court would not be endorsing the proposition that rabbis from the Beth Din of America are, in fact, “Orthodox.” The court would merely be deferring to the parties’ decision to defer to the Beth Din’s decision. Of course, this solution would privilege organizations like the Beth Din over less institutional arbitration mechanisms, and that might pose an establishment problem under current doctrine. But is it worth thinking about?