November 15, 2019 Feature

Religious Arbitration of Family Disputes

Barbara Atwood

According to news reports, religious arbitration at divorce is on the rise. Members of conservative religious groups are choosing to opt out from civil law and to submit their disputes to faith-based tribunals. Most major religious denominations have some method of private dispute resolution within their domains, some going back centuries. The practice is particularly widespread in New York where numerous Orthodox Jewish groups live in cohesive communities.

Due to the judiciary’s embrace of arbitration in recent decades—fueled by the Supreme Court’s expansive interpretations of the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq.—arbitration today is a favored means of dispute resolution. That receptivity extends to religious arbitration. See generally Michael Broyde, Sharia Tribunals, Jewish Courts, and Christian Panels: Religious Arbitration in America and the West (Oxford 2017). While religious arbitration is an accepted form of dispute resolution, courts remain protective of their core role in safeguarding children’s interests and ensuring fundamental fairness. This article describes the practice of religious arbitration today and the constitutional and public policy concerns that it implicates.

Why Would Someone Choose Religious Arbitration?

Through religious arbitration, divorcing or separating couples can resolve their marital disputes in a process that is consistent with their faith. For devout families whose daily life is tightly structured around religious observance, submitting private disputes to respected religious leaders may be part and parcel of their belief system. Through religious arbitration, couples can participate in a form of dispute resolution that is compatible with their shared spiritual worldview.

Religious arbitration may have appeal for additional reasons stemming from the characteristics of arbitration in general. Arbitration—religious or otherwise—involves the submission of a dispute to third-party decision-makers for resolution. When spouses can’t resolve their conflicts through mediation or negotiation, arbitration offers an attractive alternative to litigation. Unlike court proceedings, arbitration is private, and the parties and their religious leaders can define the arbitration process as they see fit. It is potentially less expensive than litigation, even taking into account the fees of the arbitrators. Also, the process may reach a conclusion more quickly than claims presented to a court, especially in urban areas with crowded court dockets.

The trade-off in arbitration is the narrow scope of judicial review. By agreeing to arbitrate in a religious forum, individuals give up the right to have their claims judicially resolved under secular law. Traditionally, if a court is satisfied that the initial agreement to arbitrate is valid, the award can be vacated only for arbitrator misconduct or grounds going to the fairness of the arbitration process and not for errors of law. In religious arbitration, moreover, some courts have limited their oversight of the arbitration process in order to avoid a potentially unconstitutional entanglement with religion. In other words, parties to a religious arbitration may encounter an even narrower scope of judicial review than that applied to standard arbitration.

What Forms of Religious Arbitration Occur Today?

Religious arbitration occurs in Jewish, Islamic, and Christian communities but is most common among Orthodox Jewish populations. Through rabbinical courts—known as the Beth Din—disputes can be resolved in accordance with Jewish law (halakhah). Couples may agree to submit their disputes to the religious tribunal in their ketubah—a ceremonial premarital contract signed at the time of the parties’ wedding—or in a later agreement. Among other actions, the Beth Din may order the husband to sign a get—a religious release of the wife from the marriage under Jewish law so that she is free to remarry. Without a get, the wife may be viewed as an agunah, meaning a chained woman who cannot marry within the Jewish faith.

Because of the dire consequences to women whose husbands refuse to give them a get, the New York legislature enacted a law in 1983 prohibiting the entry of a final divorce decree unless the parties have taken all steps to remove barriers to a party’s remarriage. See N.Y. Dom. L. section 253(3). The statute is designed to induce Jewish spouses, especially men, to “voluntarily” accede to religious divorces or else be precluded from obtaining a civil divorce decree. In the absence of an agreement between the parties to appear before a Beth Din, a judicial sanction to coerce compliance with section 253(3) may raise constitutional issues. In a recent New York case, the court questioned the constitutionality of § 253(3) and held that imposing financial penalties on a husband who refused to give his wife a get would be a violation of the man’s First Amendment Free Exercise rights. Masri v. Masri, 55 Misc. 3d 487 (N.Y. Sup. 2017). Thus, the unique authority of the rabbinical courts to order a get may be a strong incentive for women to consent to religious arbitration.

Given the widespread practice of religious arbitration among Orthodox Jews, it is not surprising that a national rabbinical organization—the Beth Din of America—provides arbitration services, which include an appellate process, by rabbinical panels. Its website includes a standardized arbitration agreement for adjudication before a Beth Din panel. See https://bethdin.org/forms/.

Similarly, Muslim couples may choose to submit their disputes to Islamic courts to have them resolved by imams according to Islamic law. Such arbitrations may be used to resolve conflicts over the mahr (a promised payment by the husband to the wife in formal negotiations prior to marriage) or other issues arising at divorce. See, e,g., Jabri v. Qaddura, 108 S.W.3d 404 (Tex. App. 2003) (granting motion to compel multiparty arbitration of issues arising out of divorce and property dispute before Texas Islamic Court according to Islamic rules of law). The Fiqh Council of North America offers standardized religious arbitration services according to Sharia as outlined in the Qur’an, the Islamic holy book.

Religious arbitration by Christian couples also occurs. The Institute for Christian Conciliation (ICC) is a nondenominational Christian organization that certifies lay arbitrators to follow Rules for Christian Conciliation. The Rules provide that Holy Scriptures shall be the supreme authority governing every aspect of the conciliation process. As with Jewish and Islamic arbitration agreements, courts are willing to enforce Christian arbitration agreements voluntarily entered into by the parties. See, e.g., Spivey v. Teen Challenge of Florida, 122 So. 3d 986 (Fla. App. 2013) (enforcing agreement to arbitrate according to rules of procedure for Christian Conciliation in wrongful death action where decedent had voluntarily signed arbitration agreement). As the Spivey court noted, “courts routinely uphold agreements to submit disputes to religious arbitration in the absence of fraud, duress or corruption.” Id. at 992.

Regardless of the form of religious arbitration, an award must be incorporated in a court decree to be enforceable as a judgment. In many cases, parties voluntarily comply with the award, but if one party balks, court action to confirm the award is needed to make the machinery of judicial enforcement available.

What Sorts of Issues Can Be Resolved in Religious Arbitration?

With the exception of child-related issues, religious tribunals can render binding awards on as broad a range of disputes at divorce as their civil counterparts, including property distribution, debt allocation, and spousal support. Religious arbitrators routinely determine title to real estate, division of retirement accounts, periodic support payments, the meaning of prenuptial and postnuptial agreements, and other issues that commonly arise at the end of a marriage.

On the other hand, the judiciary’s parens patriae obligation to protect the best interests of children limits the authority of religious tribunals. Most states permit arbitration of child-related issues but require that the awards, unlike awards on other issues, be subject to meaningful judicial review on the merits. Thus, courts will closely review custody and visitation awards to ensure that they are in the best interests of children. See, e.g., Kovacs v. Kovacs, 633 A.2d 425 (Md. App. 1993) (court must exercise independent judgment over child custody terms of Beth Din award to protect best interests of children). Indeed, some states require de novo review. See In re Popack, 998 P.2d 464 (Col. App. 2000) (noting that submission of child custody issues to religious arbitration was permitted but an award would be subject to de novo review at request of either party).

In a few states, courts have flatly prohibited the arbitration of child custody and visitation altogether, despite parental agreement to the contrary. See, e.g., Goldberg v. Goldberg, 1 N.Y.S.3d 360 (App. Div. 2015); Kelm v. Kelm, 749 N.E.2d 299 (Ohio 2001). Courts may be more lenient with respect to religious arbitration of child support but still exercise robust review. In New York, for example, child support, unlike child custody, can be submitted to religious arbitrators, but a court may not confirm an award unless it meets the state’s child support guidelines and is in the best interests of the child. See, e.g., Hirsch v. Hirsch, 774 N.Y.S.2d 48 (N.Y. App. Civ. 2004) (setting aside Beth Din’s support award of $457 per month for six children as insufficient under state child support guidelines).

What Are Some Common Challenges to the Validity of Religious Arbitration Agreements?

First Amendment Concerns

Challenges to religious arbitration often raise First Amendment concerns. Compelling participation in religious arbitration over a person’s objection, notwithstanding a prior agreement, may implicate the Free Exercise Clause. In addition, the Establishment Clause of the First Amendment may be implicated if a court’s enforcement of an agreement or award is tantamount to an endorsement of a particular religion. Also, a court’s review of religious arbitration procedures or rulings may morph into unconstitutional entanglement with religion. See Shai Silverman, Before the Godly: Religious Arbitration and the U.S. Legal System, 65 Drake L. Rev. 719 (2017). The Supreme Court has recognized that civil courts may run afoul of the First Amendment if they closely review the workings of a religious tribunal. See Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976) (holding that detailed judicial review of bishop’s challenge to his defrockment by Church violated First Amendment).

For the most part, courts try to avoid these constitutional hurdles by applying neutral principles of contract and arbitration law to religious arbitration agreements and awards brought before them. In an influential early decision from the New York Court of Appeals, the court held that an Orthodox Jewish couple’s agreement in their ketubah to appear before the Beth Din was enforceable as a valid contract and did not infringe on the husband’s First Amendment right to freely exercise his religion. Avitzur v. Avitzur, 446 N.E.2d 136 (N.Y. 1983). Even though the couple in Avitzur had been granted a civil divorce, the wife went back to court to compel her husband to submit to the Beth Din and to ultimately obtain a get. The Court of Appeals reasoned that the contractual promise to appear before the religious tribunal was secular in nature and did not run afoul of the First Amendment. Avitzur has been widely followed.

A few courts, however, have been more cautious. In Aflalo v. Aflalo, 685 A.2d 523 (N.J. 1996), for example, a New Jersey trial court found that the parties’ ketubah did not unambiguously require arbitration before the Beth Din. The court opined, however, that even if the ketubah had been crystal clear, an order compelling religious arbitration would have violated the husband’s right to freely exercise his religion. The court expressly disagreed with the Avitzur decision.

Significantly, judicial review of religious arbitration may be limited in order to avoid potentially unconstitutional entanglement with religion. In Lang v. Levi, 16 A.3d 980 (Md. App. 2011), the Maryland Court of Special Appeals applied this principle in rejecting a wife’s effort to vacate an award rendered at the appellate level of the Beth Din that had significantly reduced her spousal support. Among other claims, the wife argued that the award was unconscionable and that the appellate rabbi had exceeded the scope of his powers under the arbitration agreement and the rules of the Beth Din. The Maryland court indicated that it was constrained by the Establishment Clause from examining whether an arbitrator relying on religious principles exceeded his authority. As the court put it: “As far as the rigor of our review is concerned, this is an area where treading lightly is not enough. Here, we cannot tread at all.” Id. at 989. This hands-off attitude contrasts sharply with reviews of awards in secular arbitration, where a common ground for challenge is that the arbitrator exceeded his authority.

Standard Enforcement Criteria

Apart from First Amendment challenges, religious arbitration agreements and awards must meet ordinary criteria for enforcement. Arbitration issues can enter the secular court system at two main junctures: on a motion to compel arbitration because one party is resisting or on a motion to vacate or confirm an arbitration award at the end of the arbitration process. On a motion to compel, the moving party must show that the agreement was voluntary and informed and that it satisfied other procedural requirements imposed by state law. In challenging an award, on the other hand, a party must show that there was bias, corruption, or other fundamental unfairness in the arbitration itself.

If a religious arbitration agreement is not sufficiently specific or it falls short of a state’s procedural requirements in other respects, courts will refuse to enforce it. Where state law required a written agreement to arbitrate, for example, an alleged oral agreement to arbitrate before a Catholic panel was unenforceable. MacFarlane v. MacFarlane, 2006 WL 17004531 (Ohio App. 2006). Similarly, courts may refuse to compel arbitration if the agreement is too vague, Victor v. Victor, 866 P.2d 899 (Ariz. App. 1993) (finding ketubah lacked sufficient specificity), or if the signing of an agreement fails to satisfy statutory requirements, O.Y. v. A.G., 22 N.Y.S.3d 138 (N.Y. App. Div. 2015) (refusing to enforce prenuptial mahr agreement signed in Egypt by wife’s uncle as proxy, in violation of New York statutory requirements). Courts also may vacate an award if it goes beyond the scope of the agreement. An award of attorney fees by the Beth Din, for instance, was set aside because fees were not expressly included in the arbitration agreement. Berg. v. Berg, 926 N.Y.S.2d 568 (App. Div. 2011).

The requirement of voluntary consent may raise difficult factual issues because of the possibility of coercion within a religious community. In Orthodox Jewish communities an individual may suffer siruv, a form of ostracism, for not complying with Jewish law. Nevertheless, courts have been unsympathetic to the threat of ostracism as a basis for invalidating an arbitration agreement, reasoning that the threat itself is an enforcement mechanism under the religious law to which the challenger freely adheres and which therefore cannot be deemed duress. A New York court rejected a wife’s claim of duress in signing a religious arbitration agreement, reasoning that “the wife freely submitted herself to the jurisdiction of the . . . [Beth] Din and . . . this was a manifestation of her having voluntarily undertaken obedience to the religious law which such tribunals interpret and enforce.” Greenberg v. Greenberg, 656 N.Y.S.2d 369 (App. Div. 1997). Or, as another New York court bluntly concluded, “[a] Sirov is a prohibitionary decree that subjects the recipient to shame, scorn, ridicule and public ostracism by other members of the Jewish religious community. While the threat of a Sirov may constitute pressure, it cannot be said to constitute duress.” Lieberman v. Lieberman, 566 N.Y.S.2d 490, 494 (N.Y. Sup. Ct. 1991).

Predispute Arbitration Agreements

Predispute arbitration agreements—where the parties agree to arbitrate future disputes that may arise—pose special fairness concerns. The Federal Arbitration Act’s endorsement of predispute arbitration agreements, 9 U.S.C. § 2, has made them popular in consumer contracts, despite claims of misuse. Likewise, religious arbitration agreements in prenuptial contracts—signed when divorce may be only a remote possibility—are routinely enforced absent a showing of fraud or duress. See, e.g., Avitzur, 446 N.E.2d 136. Interestingly, religious tribunal records suggest that the vast majority of religious arbitration agreements are contemporaneous—entered into at the time of the dispute. See Michael A. Helfand, Arbitration’s Counter-Narrative: The Religious Arbitration Paradigm, 124 Yale L.J. 2994, 3021 (2015).

At least with respect to child-related issues, it makes sense for courts to require that an agreement to arbitrate be entered into after the dispute has arisen. An agreement to resolve disputes over children who do not yet exist would push the boundaries of informed consent. In light of such concerns, the Uniform Family Law Arbitration Act, designed for secular arbitration, requires that agreements to arbitrate child-related disputes be made or confirmed after the dispute has arisen. See Unif. Fam. Law Arb. Act § 5 (Unif. L. Comm’n 2016).

Unconscionability

Arbitration agreements, religious or otherwise, must not be unconscionable, but the standard for unconscionability is a high bar. While courts can hear claims of both procedural and substantive unconscionability, courts rarely vacate awards for unconscionability if the parties voluntarily agreed to submit to the religious tribunal according to religious law. In Kovacs v. Kovacs, 633 A.2d 425 (Md. App. 1993), for example, the court rejected the wife’s challenge to the financial aspects of an award from the Beth Din, reasoning that she had expressly waived application of state law when she agreed to arbitrate under Jewish substantive and procedural law. The court noted, “Even if [the wife’s] allegations of procedural defects were to be accepted, her complaints do not mount up to a denial of basic fairness that would mandate refusal of the court to confirm the award. It is particularly significant that [the trial judge] did not compel the parties to arbitrate under the agreement; they knowingly chose to do so.” Id. at 433. Nevertheless, extreme disparity in the terms of an award may provide reason to vacate. Where a wife effectively relinquished all of her property and support claims in exchange for receiving a get during the Beth Din process, a court found that she had been coerced and that the ultimate settlement was unconscionable. See Segal v. Segal, 650 A.2d 996 (N.J. App. 1994).

When Might Religious Arbitration Violate Fundamental Public Policy?

According to general arbitration law, arbitration agreements and awards are unenforceable if they violate fundamental public policy. In re Marriage of Popack, 998 P.2d 464 (Col. App. 2000). Presumably, an award that permitted a husband to physically discipline his wife or that barred a party from seeking relief in the civil courts would be unenforceable. By illustration, in Rakoszynski v. Rakoszynski, 663 N.Y.S.2d 957 (Sup. Ct. 1997), the court refused to enforce a religious arbitration award that required the wife to withdraw an outstanding order of protection and prohibited the parties from seeking other relief from social service agencies or in civil court. As the court explained:

An arbitration award may not be confirmed if it directs acts which are contrary to public policy or would deprive parties of their constitutional right to seek redress or protection in the future under civil law. . . . While the parties may elect to arbitrate their differences in a religious tribunal, the tribunal cannot abrogate to itself exclusive jurisdiction over all civil and criminal matters involving the parties.

Id. at 961 (citations omitted). See also Hirsch v. Hirsch, 774 N.Y.S.2d 48 (N.Y. App. Civ. 2004) (finding Beth Din order that wife drop criminal complaint against her husband to violate public policy).

How far a public policy objection can be taken is unclear. An arbitration agreement might approach the line if it required the parties to appear before a religious forum that would resolve their dispute according to tenets that clearly advantage one gender over another. In Ofer v. Sirota, 984 N.Y.S.2d 312 (App. Div. 2014), a case in point, the parties had agreed in their ketubah to resolve any divorce dispute in a court of competent jurisdiction in Israel. Olivia Sirota resisted this choice of forum, arguing that, as a New York resident, she had a right to seek a no-fault divorce under New York law. She also sought to compel her husband to obtain a get, relief she was unlikely to receive in the rabbinical courts of Israel. The New York court rejected Sirota’s arguments, reasoning that she knowingly signed the prenuptial agreement and that, as an Israeli citizen, she knew what the Israeli forum entailed. She was barred from the civil courts in New York and was left to pursue her remedies, limited as they might be, in the rabbinical courts of Israel.

The decision in Ofer v. Sirota is concerning for several reasons. In most religious arbitration cases, the forum is a religious tribunal within the United States, and the arbitration process can be reviewed by civil courts for conflicts with fundamental public policy. By dismissing the civil suit and remitting the parties to the Israeli forum, the New York court left the wife without the benefit of no-fault divorce and other family law reforms, and without access to the civil courts for redress. In addition, the gendered origins of the get system operate with full force in the rabbinical courts of Israel. The New York judges casually dismissed Sirota’s arguments, citing the maxim that a choice of forum cannot be defeated merely because the law in the home state is more favorable. That maxim may make sense in the commercial context, but it does not readily carry over to the realm of family law, where reforms are designed to improve outcomes for families and children in general.

Conclusion

The practice of religious arbitration is a reality in our pluralistic society. When civil courts enforce religious arbitration agreements and awards, they are reflecting this nation’s commitment to religious liberty and contractual autonomy. At the same time, courts have an obligation to safeguard the interests of vulnerable parties who might be subject to coercion or duress. The challenge in this field is to discern when the respect for liberty and autonomy must give way to other norms—such as fundamental fairness and equal treatment—that inform our civil justice system.

Useful Sources

  • Brian H. Bix, Marriage Agreements and Religious Family Life, in The Contested Place of Religion in Family Law 218 (Robin Fretwell Wilson ed. 2018)
  • Mohammad H. Fadel, Religious Law, Family Law and Arbitration: Shari’a and Halakha in America, 90 Chi.-Kent L. Rev. 163 (2015)
  • Michael A. Helfand, Arbitration’s Counter-Narrative: The Religious Arbitration Paradigm, 124 Yale L.J. 2994 (2016)
  • Brian Hutleral, Religious Arbitration and the Establishment Clause, 33 Ohio St. J. Disp. Resol. 337 (2018)
  • Marriage and Divorce in a Multicultural Context: Multitiered Marriage and the Boundaries of Civil Law and Religion (Joel A. Nichols ed., 2012)
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Barbara Atwood  is the Mary Anne Richey Professor of Law Emerita and Co-Director of the Family and Juvenile Law Certificate Program at the University of Arizona James E. Rogers College of Law. She is currently the Chair of the Joint Editorial Board for Uniform Family Laws and was the Chair of the Uniform Family Law Arbitration Act Drafting Committee. She is also an Adviser on the American Law Institute’s Restatement of Children and the Law drafting project.