In my last post, I began responding to Mark’s spot-on question: in order to ensure that parties have a forum to adjudicate disputes turning on religious doctrine or practice, why not simply have parties to an agreement incorporate religious arbitration provisions?  So long as the parties specify a particular institution that will select arbitrators, such a tactic avoids the Establishment Clause problems that might arise from a court having to interpret a religious term in an agreement (such as the panel will be made up of “three Orthodox rabbis” or some sort of religious term used to describe required performance).  If this is true, then why is it I also have been advocating for courts to play a more active role in resolving disputes that turn on religious doctrine or practice?

As I noted previously, I wholeheartedly concur with Mark’s point; this is one of the key reasons why I am a strong proponent of religious arbitration.  Such tribunals can resolve disputes that courts, as a matter of current constitutional law, cannot.  I’ve expressed this point, among others, in two of my recent articles, here and here.

But relying on religious arbitration is only part of the puzzle.  If we take as a goal that we would like to ensure parties have a forum to resolve all disputes – including disputes that turn on religious doctrine or practice – then we’re going to need courts to play a significant role.

True, some disputes can be resolved by religious arbitration.  When sophisticated parties draft agreements, they are likely to craft religious arbitration provisions that ensure disputes arising under the agreement are successfully adjudicated before a religious arbitration tribunal.  Other disputes can be resolved within religious institutions even in the absence of arbitration agreements.  Here I have in mind some of the church autonomy cases, where courts defer to “church judicatories” and the internal methods of dispute resolution within religious organizations (I’ve said a bit more about this in a series of posts on Prawfsblawg a few months back here, here and here).

But then there are cases turning on religious doctrine or practice that fall into an adjudicative gap for primarily one of two reasons, each of which should give us reason to want courts to resolve such cases notwithstanding potential Establishment Clause worries:

1. Drafting Learning Curve: religious communities have become increasingly sophisticated about using private law to promote and protect traditional religious practices.  I have in mind here, to name a few, the increasing use of religious arbitration provisions, sharia complaint finance, Islamic mahr agreements, and Jewish heter iska agreements.  But there is a learning curve within religious communities as they look to craft agreements that simultaneously avoid Establishment Clause problems, but still advance the stated religious objectives of the community.  So it’s not surprising when we see cases like the “three Orthodox rabbis” case.  It’s not the first hiccup in the process of developing religious arbitration provisions (see, e.g. Sieger v.Sieger).

The question then is what to do when parties screw up.  My own instinct is that when parties force the hand of courts – drafting a provision that requires a court to resolve a religious question – courts are on strong constitutional and policy footing in resolving the question (for the constitutional story check out Part II of my article).

2. Religious Torts:  The other problem arises when instead of religious contracts, we start thinking about religious torts.  Consider the following example: Mike hangs posters in a religious community that John is an adulterer.  John, who recently secured a civil divorce from his wife, sues Mike for defamation.  Mike asserts the defense of truth, claiming that John is an adulterer because he failed to secure a religious divorce in accordance with religious law.  Believe it or not, this is not an uncommon fact-pattern (see here and here). Where should such a dispute be resolved?  Because it’s a tort, there wasn’t a pre-dispute opportunity to sign a religious arbitration agreement.  And it’s unlikely that the defendant will sign such an agreement post-dispute if he thinks he’s shielded from liability by the Establishment Clause in court.  Moreover, there is no “church judicatory” that can resolve the dispute; the dispute is between two private parties and does not implicate the interests of a religious institution.

In these cases, I think we need courts to play a more active role.  My view is that they should use expert testimony and other fact-finding mechanisms to try to adjudicate the dispute instead of simply dismissing it on Establishment Clause grounds.  Such dismissals mean that the plaintiff will not be able to pursue redress of legal wrongs.  Of course, after listening to experts and reviewing other evidence, a court may determine that there is insufficient evidence to carry the plaintiff’s burden – and as a result, the case must be dismissed anyway.  But such an approach avoids using the Establishment Clause to short-circuit the inquiry without trying.  In this way, it relies on private-law evidentiary burdens instead of public-law constitutional doctrines.

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