In my last post, I argued that there might be more room for courts to enforce arbitration agreements that require courts to interpret inherently religious provisions.  The example was a provision that required a matter to be arbitrated by “three Orthodox rabbis.”  By contrast, a New York court – in keeping with prevailing interpretation of the Establishment Clause – refused to enforce the provision on the grounds that doing so would require judicial resolution of a religious question.

Mark followed up with a great point: isn’t the best way to deal with these problems by having religious arbitration provisions simply specify a particular institution to appoint religious arbitrators?  This way, courts could enforce the provision without resolving a religious question and then, after the arbitrators issued an award, they could enforce the award by deferring to the arbitrators’ award.  Such an approach ensures the judicial enforcement of a religious arbitration award without any of endorsement or entanglement problems.

Mark is undoubtedly correct; the existence of permanent religious arbitration courts are an important mechanism for insulating religious dispute resolution and avoiding Establishment Clause concerns.  As I describe in “Litigating Religion”

Enforcing [religious arbitration] awards avoids any excessive entanglement with religious doctrine because the courts, when enforcing arbitration awards, are instructed not to investigate the merits of the dispute between the parties.  Instead, when reviewing arbitration awards, courts must simply ensure that the arbitrators’ decision was issued pursuant to an arbitration agreement between the parties and that the arbitrators complied with the statutorily mandated procedural requirements.

By contrast, where the parties choose to pursue such claims in court instead of submitting them for religious arbitration, Establishment Clause concerns . . . loom large.  This is because courts have interpreted the Establishment Clause to prohibit adjudication of claims turning on matters of religious doctrine or practice.  Thus, a court would be constitutionally barred from [resolving a claim that turned on religious doctrine or practice].  However, a court would be free to enforce a religious arbitration award resolving those very same claims.

If so, then why the fuss about pushing courts to think more about enforcing religious provisions that are poorly drafted and unnecessarily require a court to answer a religious question in enforcing the arbitration provision?  I’ll answer this question in my next post, but first I’d like to emphasize how helpful religious arbitration provisions are to what I’ve described as the litigating religion agenda.

Indeed, not all contractual provisions that raise religious questions are arbitration provisions.  Imagine, for example, a contract that employs some religious terminology (e.g. an Islamic mahr agreement or a Jewish heter iska agreement).  Depending on the circumstances, a court might encounter the same religious question problem; enforcing the agreement may require judicial resolution of a question about religious doctrine or practice, which would – at least, on the prevailing view – be impermissible under the Establishment Clause.

However, that does not mean disputes regarding such provisions must go unresolved.  Parties signing such agreements could avoid this problem by incorporating a religious arbitration provision into the contract.  Thus, they could state the any controversy arising under the agreement would be resolved by a particular religious arbitration institution (e.g. the Beth Din of Americaor the Texas Islamic Court).  As a result, if a controversy did arise about the meaning of the religious provision, the parties would simply arbitrate the dispute and a court would enforce the award.  In this way, religious arbitration provisions serve as a private law mechanism to ensure that individuals seeking to draft religious contracts have a place to resolve private law disputes implicating religious questions; or, put differently, religious arbitration provisions are a vital method to ensuring parties can litigate religion in light of judicial refusal – on constitutional grounds – to address such claims directly.