Rules Are for Schmucks: Religious Arbitration

The New York Times has been running a series of articles exposing a major shift in American dispute resolution, away from the use of civil courts and toward reliance on out-of-court “arbitration.” Instead of using a government-employed judge and a full-blown trial, arbitration typically relies on a private citizen arbitrator, using vastly simplified (and therefore much cheaper) procedures for reaching a decision.

To some extent, the litigation system has brought this shift on itself by becoming so absurdly expensive and time-consuming. But some of the trends described in the articles are disturbing. For example, arbitration clauses in form contracts now make it impossible for individuals to bring class action suits against many large firms, including Amazon, Netflix, Travelocity, eBay and DIRECTV—even Ashley Madison! If you think you got ripped off $30 by your credit card company, you can go through an arbitration process to try get your $30 back, but you cannot join with a million other similar victims in a massive case that might actually force your credit card company to change what it’s doing. A friendly competitor of the Times pointed out that even “The Gray Lady” herself owns a subsidiary with a mandatory arbitration clause in its standard contracts.

There are two sides to the tradeoffs here, and I don’t want to get into them deeply. But at least the arbitrators in typical civil cases are still applying normal civil law, as enacted by Congress or the state legislatures. Far more insidious is a kind of arbitration that does not apply normal civil law as enacted by a democracy the way you learned about in civics class: arbitration based on religion.

Take for example Luis and Rocio Garcia. They spent many years and mountains of money in the Church of Scientology before growing disenchanted with it. When they began criticizing the church, they were formally declared to be “suppressive persons,” who must be utterly shunned by all good Scientologists. Then when they tried to get their money back for some courses they had signed up for but had never taken, they discovered that they had agreed to an arbitration provision to the effect that any dispute they might ever have with the Church of Scientology would be arbitrated solely by… the Church of Scientology.

When the Garcias tried to take their case to a court instead, it was immediately thrown out, despite the fact that Scientology admitted it has never actually conducted an arbitration before. The judge insisted that failure to honor the religious arbitration clause would violate the First Amendment because it “would constitute a prohibited intrusion into religious doctrine, discipline, faith, and ecclesiastical rule, custom, or law by the court.” I wish I knew how to place a bet on how an arbitration against Scientology that is conducted by Scientology itself will turn out.

Another case highlighted by the Times involves a mother whose delinquent son was directed by a court to a Christian “rehabilitation” group called “Teen Challenge.” That was the last time she saw him alive. When she tried to get further details about his death beyond the barebones fact that he had left the premises and died of a drug overdose, Teen Challenge simply clammed up.  When she brought a lawsuit to try to force Teen Challenge to tell her more, especially about the letter he wrote before his death in which he claimed that Teen Challenge had “de-gayed” him, she ran smack into a religious arbitration clause. The Christian arbitrator involved preferred to use scriptures and prayer rather than nasty secular tools like depositions under penalties of perjury. Lawyers could attend but could not speak. This mother never did find out what happened to her son at Teen Challenge.

The rapidly growing “Christian healthcare” industry has a special incentive to encourage people to use Christian arbitration rather than the law: their contracts say that any customer who “use[s] the secular courts” to press a claim is immediately dropped from all health coverage.

Perhaps because they are paranoid about being called Islamophobic, the authors (or editors) of the Times piece completely ignore the hottest religious arbitration topic of the past few years: the growth of Islamic sharia law in the US and other western countries. The pattern is similar to commercial arbitration or to the Christian and Scientology arbitration noted above. The parties agree (consciously or otherwise) to have sharia law as determined by a Muslim God expert govern their situation, rather than the normal family law, inheritance law, contract law, etc. rules adopted by a democratically elected government. Then they are stuck, even if they later decide to leave Islam. The “Islamic Tribunal” that opened in Texas earlier this year, generating so much resistance, is directly on point: it resolves family and business matters, even workplace disputes, based on ninth-century Arabian principles rather than on twenty-first century American laws. A Muslim (or perhaps ex-Muslim) woman who appears before this tribunal to claim a proportionate share of her father’s estate is very likely to be treated worse there than she would be in a standard American court.

In the United Kingdom, since the Archbishop of Canterbury endorsed the incorporation of sharia law into the British legal system back in 2008, there has been explosive growth in this brand of religious arbitration. There are now some eighty-five sharia courts there, prompting a backlash called “One Law for All.” The pressure on Muslims, especially Muslim women, to “voluntarily” submit to the jurisdiction of these courts is overwhelming.

In Oklahoma, voters in 2010 passed a referendum preventing state courts from implementing sharia law, which would have effectively shut down religious arbitration there—for one religion only. Six other states have followed suit. But Oklahoma’s law was struck down by a federal judge, largely because it focused on a single religion. Her reasoning, which was upheld by the Tenth Circuit in 2012, probably means all the other state anti-sharia laws are invalid as well. Those in Oklahoma and elsewhere who don’t want sharia law in their states should consider changing their strategy and seek to ban enforcement of all religious arbitration of civil law disputes. That should pass constitutional muster and would be an excellent step toward uniform, neutral “one law for all.”