The Status of Religious Arbitration in the United States and Canada

Nicholas Walter, Yale Law School

Abstract

This paper discusses, and challenges, the status of religious arbitration in the United States and Canada. Religious arbitration—defined as the settling of disputes informally by religious principles, rather than by having recourse to the courts—has been written about considerably in recent years. All writers to date have considered ways in which rights guaranteed by secular courts can be maintained before religious tribunals.

This paper is the first to consider the problem caused by religious tribunals for the rights of free exercise of religion for those using the tribunals. It argues that the enforcement of awards made by religious tribunals, and agreements to arbitrate before religious tribunals, by secular courts is an unconstitutional infringement of parties’ rights of free exercise of religion in both the United States and Canada. This is true even though the United States Supreme Court and the Canadian Supreme Court have different jurisprudence on freedom of religion.

Although the United States and Canada may still encourage parties to mediate their disputes through religious means, statutes should be enacted in both countries providing that no party may enter a contract to enter a binding arbitration process based on religious principles. Furthermore, the discussion in the paper has implications for debates about the status of religious tribunals in other countries, such as the United Kingdom.