Author ORCID Identifier

Michael Broyde 0000-0001-9960-7256

Document Type

Article

Publication Date

2021

Keywords

Religious arbitration, Secular arbitration, Federal Arbitration Act, Supreme Court, Contract law, First Amendment, Establishment Clause, Free Exercise Clause

Abstract

The recent article In God We Trust (Unless We Change Our Mind): How State of Mind Relates to Religious Arbitration ("In God We Trust") proposes that those who sign arbitration agreements that consent to a religious legal system as the basis of the rules of arbitration be allowed to back out of such agreements based on their constitutional right to free exercise. This article is a response and is divided into two sections. In the first section, we show that such an exemption would violate the Federal Arbitration Act's (FAA) basic rules preventing the states from heightened regulation of arbitration generally and would also run afoul of the constitutional duty--twice reaffirmed by the Supreme Court in the last few years--not to treat religious institutions, ideals, and motives differently from their secular counterparts.

In the second section, we argue that even if these objections are overcome by statute or constitutional amendment, creating an exemption to the general contractual obligations of arbitration merely because someone had a change in religious heart is an exceedingly unwise idea and does not further the goals of either religious liberty or arbitration law. Because the stakes are so much higher than mere contract law, the rights protected need greater deference. In contradistinction to In God We Trust, the second section argues that the Conscientious Military Objector model is unique and should not be expanded to any civil context exactly because military service is not a contractual model but can produce criminal penalties. Further, we note that problems of excessive entanglement, hinted at by this author and outlined in the article The Reverse-Entanglement Principle: Why Religious Arbitration of Federal Rights Is Unconstitutional, are not serious constitutional matters and hardly justify revising arbitration law in light of them. Indeed, contractually based religious arbitration enhances religious liberty, and any unique treatment would reduce arbitration's developing benefits to religious and secular communities through its choice of law provisions.

First Page

1

Publication Title

Pepperdine Dispute Resolution Law Journal

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