Are religious arbitration panels incompatible with law? Examining "overlapping jurisdictions" in private law.

Author:McFarland, Robert L.
Position:Response to article by John Witte Jr. and Joel A. Nichols in this issue, p. 321 - Faulkner Law Review Symposium


Those of us who are members of the academic community here at Faulkner owe a debt of gratitude to the Faulkner Law Review for organizing this new fall symposium. Thank you to the editors and staff of the Faulkner Law Review for your important contribution to the academic community here at Faulkner.

The intersection of faith and law is a timely, important, and well-selected topic. I am grateful to Professor Witte, Professor Nichols, and Professor Horwitz for their participation in this inaugural symposium and for your willingness to contribute to our understanding of the issues arising in this conversation. It is an honor to join this conversation with three experts in the field. I hope that my remarks contribute to the continuing development of your thoughts concerning the proper relationship between faith and law.

Professor Witte's symposium comments highlight the complex and often tense relationship between the provinces of faith and law in the West. (1) Democratic commitment to religious freedom (2) is being tested as once widely shared religious and cultural commitments are diluted in our pluralistic culture. (3) Immigration heightens this challenge as those enticed to the West by freedom's promise bring new religious and cultural commitments. (4) Many political, constitutional, legal, and moral questions regarding the overlapping jurisdictions of faith and law are now spinning out of the swirling winds of globalization sweeping across the Western world. (5)

Rather than chasing after the wind, I will focus my remarks on one particular legal question: should courts in Western democracies enforce private agreements to arbitrate disputes before religious tribunals? This question brings into focus the tension between the realms of faith and law by highlighting values and interests undergirding our concept of jurisdiction. It was precisely this question that triggered recent Sharia law controversies in Canada, England, Australia, and the United States. (6) A serious effort to answer this question requires one to conduct a fresh examination of what religious freedom is and whether religious freedom is of incommensurable constitutional value. (7)

The thesis of this article is that Western courts should enforce private agreements to arbitrate disputes before religious tribunals and that such enforcement advances legitimate and important secular interests.


Assume that a Muslim man and a Muslim woman each sign a pre-marital agreement prior to entering into a valid Islamic marriage. For clarity, a "valid Islamic marriage," means a marriage permitted both by secular and Sharia law. (8) Also, assume the premarital contract contains a choice of forum clause, which requires the prospective spouses to submit all future marital disputes, including questions regarding divorce, custody of children, and marital obligations, to a panel of Religious authorities. Finally, assume the pre-marital contract contains a choice of law clause requiring the selected Religious authorities to determine the rights and obligations of the parties pursuant to a specified school of Sharia law. Should a Western court of law enforce this agreement?


At this point, many Westerners will get up and run to the nearest Sharia alarm and pull it. One can almost hear the alarm bell ringing and the crowds shouting, "No Taliban here, thank you very much!" Note that the religious tribunal has not done anything, yet. The mere suggestion that an Islamic forum applying Islamic law might do something within the territory of the West causes the concern. Why?

Islamic arbitration panels, it is argued, are the tip of a spear. The mere presence of such arbitral panels threatens the rule of law in the West, so the argument goes. Some contend that private litigants intend to use such private arbitral panels to subvert and displace the substantive laws of the forum state. Others argue that private litigants deserve protection from religious tribunals because they are pressured or coerced into participation and are thereby foregoing rights available to them under local law.

Each of these "anti-Sharia" arguments were advanced in Canada leading up to the adoption of rigid laws that restrict the use of religious arbitration by Muslims. (9) Gordan Brown advanced similar arguments in support of his insistence that Islamic arbitral panels had no place in England. (10)

Many in the United States also advance similar arguments. And calls for greater restrictions on religious exercise and religious liberty often come from surprising sources. An interesting example of this comes from the arguments advanced by the Foundation for Moral Law in its amicus brief filed in federal litigation supporting Oklahoma's anti-Sharia constitutional amendment. (11)

The Foundation for Moral Law (12) is affiliated with Alabama's former (and newly re-elected) Chief Justice, Roy Moore. Judge Moore is best known as the "Ten Commandments judge." (13) Judge Moore, in his words, fought hard to advance the cause of religious freedom. (14) One would, accordingly, expect Judge Moore and those who support his viewpoint to sympathize with others advancing the cause of religious freedom.

However, support for religious freedom (and respect for religious viewpoints) apparently ends when it comes to extending respect to those choosing to resolve their disputes in an Islamic tribunal. The Foundation for Moral Law recently argued that an anti-Sharia amendment to the Oklahoma Constitution was constitutional and lawful. (15) Muslims seeking access to Islamic arbitration panels threaten the rule of law in Oklahoma, according to the Foundation's brief. (16)

The Foundation's argument demonstrates a tension common in discussions of religious freedom. Many proponents of religious freedom are more interested in advancing a specific religious viewpoint, than the cause of religious freedom. Consider, for example, Judge Moore's comments in the preface to the second edition of his book, So Help Me God: The Ten Commandments, Judicial Tyranny, and the Battle for Religious Freedom. (17) There, Judge Moore explains that he was urged to republish his book as a response to "recent disparagements of our [Christian] faith by the President ... so that people will better understand and be prepared to deal with attacks on our Christian heritage." (18) Judge Moore then advances an argument for religious freedom as a pretext for advancing a specific religious viewpoint in the public square: he seeks public acknowledgement that all law derives from the commands of the Judeo-Christian God. (19)

Similarly, many people of faith in America advance arguments in support of Free Exercise Clause and against Establishment Clause challenges so long as those arguments relate to dominant (or once dominant) religious viewpoints. These individuals seek accommodation for prayer in schools, acknowledgement of God in public acts, and liberty of conscience respecting laws of general applicability. At the same time, many of these proponents of religious freedom support legal restrictions upon competing religious viewpoints and exercises. (20)

Religious freedom in a pluralistic society cannot survive if its most vocal proponents are, in fact, committed to using arguments in support of religious freedom as a means to advance a specific religious viewpoint in the public square. Such hollow and inconsistent arguments in support of religious freedom empower those committed to wholly secular (non-religious) viewpoints to argue that religion deserves no public protection. In other words, the battle between religious viewpoints in the public square provides fodder for those who argue that religion is the problem. (21) These arguments distract from our constitutional commitments to free exercise of religion and tempt all into ignoring other public reasons for supporting the private commitments of individuals.

Furthermore, arguments such as those advanced by the Foundation for Moral Law in the Oklahoma litigation distract from legitimate state interests advanced by supporting autonomy in private law generally. As explained below, there are legitimate state interests advanced by enforcing private agreements to resolve disputes in an extra-judicial forum. Arguments that prevent individuals from using choice of forum and choice of law clauses to resolve their private disputes undermine these interests.

Whether U.S. courts should enforce private agreements to resolve family disputes before religious tribunals is a question which brings these...

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