In Contracts We Trust (and No One Can Change Their Mind)! There Should Be No Special Treatment for Religious Arbitration

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\u27s (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\u27s developing benefits to religious and secular communities through its choice of law provisions

In Contracts We Trust (and No One Can Change Their Mind)! There Should Be No Special Treatment for Religious Arbitration

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\u27s (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\u27s developing benefits to religious and secular communities through its choice of law provisions

Contract Law Should Be Faith Neutral: Reverse Entanglement Would Be Stranglement for Religious Arbitration

The first section of this Article will outline the ways in which communities—religious and other groups, including the LGBTQ+ community—have used and continue to use private law to achieve meaningful dispute resolution. By diminishing the role of civil courts to review arbitrations, parties may tailor their resolutions to prioritize community values that may be misaligned with secular society. Outside of historical religious usage, private law offers a field ripe for jurisprudential growth. Through alternative dispute resolution, affinity-based minority groups can pave an avenue towards justice which accurately reflects the unique values of their lived experiences. The second section will provide a direct examination of two legal doctrines proffered by opponents of religious arbitration: the Bixler religious exit right to contract and the expansion of the state action doctrine through the Reverse Entanglement principle. Both solutions are meant to protect against the unwitting waiver of state and federal rights of weaker parties to contract, but both would effectively abolish religious dispute resolution within the United States. Such rights waivers exist in the commercial arbitration context generally and also involve relationships with inherent power imbalances: consumer and company, employee and employer, etc. There are serious problems with abuse under arbitration law, but we argue that the solutions to those problems reside outside constitutional First Amendment jurisprudence. Furthermore, allowing exit from contracts on First Amendment grounds is a radical change in contract law with countless implications outside of arbitration. Instead, we propose that unconscionability be used more frequently against abusive arbitration clauses, be they secular or religious in nature. This doctrine is the workhorse of contract law’s defenses and offers a thoroughly faith-neutral way of determining bargaining naughtiness. Further, we propose expanding unconscionability through the state action doctrine. There should be a lower standard of unconscionability based on the old doctrine of privity, where arbitration clauses impact non-parties to an agreement. The Bixler religious exit right and the proposed Reverse-Entanglement principle represent a conflation between secular traditions: it proposes a French laïcité solution (which aims to keep religion out of public life) to an American religion pluralist problem (which allows religion to participate on the same terms as all other customs). To us, establishment of secularism is another form of religious establishment, and prohibiting the blossoming use of contract law within faith-based minority communities will not solve the culture wars or bolster contract defenses. We propose allowing both secularism and religion access to the public sphere, and we believe that faith-based extrajudicial tribunals create the path for true American pluralism

Contract Law Should Be Faith Neutral: Reverse Entanglement Would Be Stranglement for Religious Arbitration

The first section of this Article will outline the ways in which communities—religious and other groups, including the LGBTQ+ community—have used and continue to use private law to achieve meaningful dispute resolution. By diminishing the role of civil courts to review arbitrations, parties may tailor their resolutions to prioritize community values that may be misaligned with secular society. Outside of historical religious usage, private law offers a field ripe for jurisprudential growth. Through alternative dispute resolution, affinity-based minority groups can pave an avenue towards justice which accurately reflects the unique values of their lived experiences. The second section will provide a direct examination of two legal doctrines proffered by opponents of religious arbitration: the Bixler religious exit right to contract and the expansion of the state action doctrine through the Reverse Entanglement principle. Both solutions are meant to protect against the unwitting waiver of state and federal rights of weaker parties to contract, but both would effectively abolish religious dispute resolution within the United States. Such rights waivers exist in the commercial arbitration context generally and also involve relationships with inherent power imbalances: consumer and company, employee and employer, etc. There are serious problems with abuse under arbitration law, but we argue that the solutions to those problems reside outside constitutional First Amendment jurisprudence. Furthermore, allowing exit from contracts on First Amendment grounds is a radical change in contract law with countless implications outside of arbitration. Instead, we propose that unconscionability be used more frequently against abusive arbitration clauses, be they secular or religious in nature. This doctrine is the workhorse of contract law’s defenses and offers a thoroughly faith-neutral way of determining bargaining naughtiness. Further, we propose expanding unconscionability through the state action doctrine. There should be a lower standard of unconscionability based on the old doctrine of privity, where arbitration clauses impact non-parties to an agreement. The Bixler religious exit right and the proposed Reverse-Entanglement principle represent a conflation between secular traditions: it proposes a French laïcité solution (which aims to keep religion out of public life) to an American religion pluralist problem (which allows religion to participate on the same terms as all other customs). To us, establishment of secularism is another form of religious establishment, and prohibiting the blossoming use of contract law within faith-based minority communities will not solve the culture wars or bolster contract defenses. We propose allowing both secularism and religion access to the public sphere, and we believe that faith-based extrajudicial tribunals create the path for true American pluralism