Where angels fear to tread: Islamic arbitration in probate and family law, a practical perspective.

• Author: Lowry, Evan M.

"The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect. The right to organize voluntary religious associations to assist in the expression and dissemination of any religious doctrine, and to create tribunals ... is unquestioned." (1)

1. INTRODUCTION

   In 2010, voters in Oklahoma overwhelmingly approved an amendment to the Oklahoma State Constitution that barred the consideration of "international law or Shari'a Law" in Oklahoma state courts. (2) Before it took effect, a Muslim named Muneer Awad successfully challenged the law by arguing that it rendered his Shari'a-compliant will unenforceable and infringed upon his First Amendment rights. (3) Before the Tenth Circuit struck down the "Save Our State" amendment, legislatures in as many as twenty states proposed similar legislation. (4)

   It is clear from this trend that a portion of the American public finds the idea of substituting religious law for civil law in American courtrooms disconcerting. (5) What many of the proponents of "Save Our State" and similar legislation may not realize is that religious law is already applied routinely in America through the use of religious arbitration tribunals, and decisions by these bodies are binding on American judges through the Federal Arbitration Act (FAA) and state law based upon the Revised Uniform Arbitration Act (RUAA). (6) In fact, agreements to arbitrate disputes using Islamic, Christian, and Jewish principles and law have been honored in jurisdictions from New York to Texas. (7)

   In Canada and the United Kingdom, fairly close analogues to the American legal system, the debate over the establishment of Shari'a arbitration tribunals has provoked public outcry. (8) In Ontario, this fury led to the deconstruction of all religious arbitration tribunals, not only those purporting to follow Shari'a. (9) Yet such tribunals have been active in the United States for quite some time. (10) For many Americans, Muslim and otherwise, addressing disputes through the use of religious precepts in these tribunals can be an important expression of faith. (11) For others, however, the application of binding religious law in any forum is perceived as anathema to a secular state and a risk to the substantive rights guaranteed by secular law. (12)

   This Note addresses these issues by analyzing the ways in which precepts of Shari'a differ from American law in the areas of divorce, child custody, and probate law. (13) It then examines the effect that the application of Shari'a can have on the substantive rights of parties who submit to it. (14) Part II explores the historical development of religious arbitration and how arbitration can be beneficial to Muslims who choose to employ it. (15) After comparing the two legal systems' approaches to family and probate law, Part III argues that the expansion of religious arbitration in these areas could have inequitable effects on parties who never agreed to be bound by religious arbitration. (16) This Note then concludes that while Shari'a arbitration may be viable in the area of divorce, where two clear contracting and consenting parties are present, Shari'a and American law in the areas of custody and probate disputes have potentially irreconcilable differences that militate against the further expansion of religious arbitration in these areas. (17)

2. History

   1. The First Amendment and Religious Disputes

      The difficulties inherent in resolving legal issues involving questions of religious doctrine are not novel. (18) As early as 1871, the Supreme Court recognized that religious tribunals were better equipped than civil courts to handle legal disputes involving questions of faith. (19) In Watson v. Jones, the Court cautiously applied First Amendment principles and federal common law to determine a civil court's scope of authority when reviewing a church tribunal's decision. (20) The Watson Court held that inquiry into ecclesiastical matters impermissibly blurred the line between church and state. (21) This categorical abstention from engaging in questions of primarily religious review was later reinforced in Presbyterian Church v. Mary Elizabeth Blue Hull Memorial Presbyterian Church and Serbian Eastern Orthodox Diocese v. Milivojevich, in which the Supreme Court denied the courts any role in reviewing intrafaith disputes if the resolution of those disputes required inquiry into religious doctrine. (22)

      This position was based not only on the First Amendment and principles of separation of church and state but also on the fact that American judges are simply unequipped to pass judgment on ecclesiastical issues from religions whose precepts may be entirely foreign to them. (23) Problematically, the application of this principle removes a large number of cases from judicial dockets, and leaves many without a fair remedy or recourse to the courts. (24) The Court laid out a way to balance these competing interests first in the dicta of Hull, and later in Jones v. Wolf, by approving the application of the neutral-principles-of-law approach. (25) This approach does not overrule Watson by allowing courts to intervene in doctrinal disputes; rather, it allows judges to decide cases where the underlying dispute can be resolved through the application of secular legal principles, including the interpretation of statutes, deeds, or contracts. (26) Although developed in the context of church property disputes, these principles have since been applied wherever the resolution of a case requires the court to inquire into the practices of a religious organization. (27)

   2. Why Arbitration? A Square First Amendment Peg and a Round Religious Hole

      The neutral-principles-of-law approach allows civil courts to address a wider swath of disputes than the abstention doctrine created in Watson would permit, but it still fails in a large category of cases where the court's general "hands-off" approach leaves litigants without redress in civil court. (28) This is especially the case with contracts, where often the disputants either want their terms to be religious in nature, or the services rendered involves primarily religious obligations. (29) Because of the wide variety of religious practice in the United States, and the sheer number of religious institutions nationwide, these concerns implicate more cases than one might expect. (30) It is this confluence of a jurisdictional void left by First Amendment jurisprudence, combined with the desire of many litigants to address religious concerns as a part of their dispute resolution that has led to the rise in popularity of religious arbitration in America today. (31)

      Arbitration is a form of alternative dispute resolution (ADR) that allows parties to select an outside panel to determine the outcome of a dispute or contractual breach. (32) Arbitration practices vary considerably, but are regulated on the federal level by the FAA and at the state level by statutes that are generally based on the RUAA. (33) Although American courts were initially hostile toward arbitration for usurping the court's adjudicative role, the Supreme Court has since reversed this position, stating instead a preference for arbitration and mandating that arbitration clauses be construed broadly. (34)

      Arbitration is a child of contract, and parties may only arrive in front of an arbitration panel by mutual agreement. (35) This happens in one of two ways: either the parties provide for arbitration as a remedy in a contract (such as a prenuptial agreement) or they agree after a conflict has already arisen (such as a divorce proceeding) to divert the decision to arbitration, ostensibly saving time and avoiding the high cost of litigation. (36) Religious arbitration tribunals are often used in both scenarios, as they allow parties to resolve disputes according to religious principles without the same restrictions placed on civil courts by the First Amendment. (37) This allows disputants to achieve a resolution that is both sensitive to their unique religious or cultural backgrounds and enforceable, if properly executed, by the civil courts. (38)

   3. Filling a Niche--The Current State of Religious Arbitration in America

      Jewish, Christian, and recently Muslim organizations rely on these principles to render enforceable decisions according to the precepts of their faith in a wide range of disputes. (39) In fact, these tribunals commonly handle conflicts ranging from ecclesiastical contract disputes to family law cases. (40)

      In Judaism, religious tribunals called betei din (plural of beth din) allow observant Jews to resolve disputes according to Halacha, or rabbinic law. (41) Courts have consistently enforced the decisions of these tribunals as long as they conform to statutory arbitration requirements under the FAA/RUAA and basic notions of fairness and due process. (42) As with other forms of arbitration, the decisions of religious arbitration tribunals are subject to limited review, and the burden is on the party contesting the award to show corruption, fraud, arbitrator misconduct or bias, or a valid due process or public policy violation. (43)

      Although less prevalent in the United States than Jewish beth din arbitration, Christian dispute resolution services based on biblical precepts have offered services in mediation and arbitration for years. (44) While betei din and Islamic tribunals each rely on a body of law (halacha and Shari'a, respectively), Christian ADR services generally do not. (45) Instead, these tribunals apply Christian principles, which are based on the Bible, the Apostolic Tradition, and the First Ecumenical Council. (46) As a result, there are fewer active Christian arbitration services available, and those that do exist often focus on mediation rather than arbitration services. (47) Still, these tribunals should not be discounted: One such service, Peacemaker Ministries, has been offering ADR services since 1982, and it appears likely...