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 Continue reading