Faith-Based Arbitration: First Amendment Freedom or Major Concern?

The right to freely exercise religion, listed as one of the first rights in the First Amendment, is undoubtedly a bedrock principle of American constitutional law. What happens, then, if a group of individuals were to willingly execute a contract restricting themselves to a certain set of religious rules? A case recently appealed to the Supreme Court, Church of Scientology International v. Bixler (2022), dealt with this very question. The Respondents were a group of women, including Chrissie Carnell Bixler and two Jane Doe’s, who sued for alleged sexual assault by a church member, Daniel Masterson. However, the women originally signed a contract agreeing to resolve any disputes by arbitration within their church and its rules of procedure. Later, they left the faith, and were sued by the Church in order to bind them to the agreement. The Church claimed that the arbitration agreement is an enforceable contract—requiring them to abide by Scientology rules, regardless of faith. The California Court of Appeal, however, sided with the Respondents to not enforce the arbitration agreement, on the grounds that their change in beliefs would free them of their contractual obligations under the free exercise clause of the First Amendment. [1] 

Although the Supreme Court declined the case’s petition, the appeal court’s ruling nevertheless should be challenged by further lawsuits, as it is inconsistent with previous jurisprudence regarding the freedom of religion. While the California Appeal Court held that religious arbitration contracts are inherently an expression of belief, it can be argued that an agreement to engage in religious arbitration, in essence, is the same as a secular arbitration contract; it merely compels parties to resolve claims according to a specific set of religious rules. Therefore, unless the agreement explicitly binds both parties to a religion, religious arbitration agreements can be enforced even if a party has left the faith.

All mediation agreements today fall under the purview of the Federal Arbitration Act (FAA), which gives arbitration decisions and their mediating bodies the same power as a traditional contract. The Act states, “[a]n agreement in writing to submit to arbitration… shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” [2] In determining what exactly are considered the grounds which exist for the revocation of a contract, courts have generally been reluctant to void arbitration agreements unless there was a substantial mistake or disregard of fact, law, or abuse of discretion. [3] Though these criteria hypothetically apply equally to all forms of arbitration, with regards to faith-based arbitration, this narrow mandate is restricted even further because of First Amendment concerns about governmental intrusion in religion. [4] The Supreme Court has previously found in Serbian Orthodox Diocese v. Milivojevich (1976) that in matters of interpreting religious doctrine or policy, deference must be shown to the highest ecclesiastical body of that faith. In Serbian Orthodox Diocese, the Court ruled against the Illinois Supreme Court’s decision that the defrockment of an archbishop was arbitrary and did not follow Church doctrine, on the grounds that the Church procedure had a religious motivation. Therefore, it could not be reinterpreted by a secular court. [5]

Viewed in this light, religious arbitration would appear to fall under the same criteria of Serbian Orthodox Diocese, being too linked to ecclesiastical law for courts to be involved. This would make religious contracts legally unenforceable if one were to abandon their faith, as it presumes that rules of procedure are inherently tied to being a party to the religion. In reality, however, there is an important distinction to make between operating as a religious actor and neutrally interacting with a religious party. Even if the rules that govern religious arbitration are sourced in faith, the act of two parties agreeing to submit to an ecclesiastical authority is not inherently a form of worship warranting the court’s vacating of the contract. In nearly all faiths, including each of the three major Abrahamic religions, participants in religious arbitration proceedings do not need to follow that faith themselves. [6] For example, the Beth Din of America, the largest Jewish ecclesiastical court in the United States, has an arbitration agreement that requires participants to accept the Beth Din’s decision as legally binding, having been decided in accordance with the rules of judgment in the Jewish legal tradition; however, they do not explicitly require parties to be Jewish in order to proceed. [7] Beth Din of America’s arbitration agreement, from a legal standpoint, is no different than a secular mediation proceeding, other than the chosen set of adjudicating laws. As long as there is no clause in a religious arbitration agreement requiring parties to be members of the religion, the act of not believing in a religion does not void the contract.

Courts, at least on the state level, have also been willing to uphold religiously-motivated agreements to seek alternative means of adjudication. One such famous instance is the New York State Supreme Court case Avitzur v. Avitzur (1982). In Avitzur, after a Jewish husband and wife became divorced under civil law, the husband refused to comply with the couple’s Ketubah, a Jewish marriage document, which allows for one partner to summon the other to a Beth Din. Without a summons to a Beth Din to obtain a Get, a Jewish divorce document, a woman cannot remarry. While the husband claimed that the Ketubah is unenforceable as a religious document, the New York Court of Appeals ordered the husband to appear in Beth Din and deliver his wife a Get. [8] The Appeals Court’s argument was, in essence, that although the religious provisions of the Ketubah cannot be enforced, the specific imperative to appear before Beth Din and deliver a Get is akin to an arbitration clause in a prenuptial agreement. [9] Matters of religious law didn’t need to be adjudicated by the court, as long as there was a provision in the Ketubah requiring arbitration, which was to be subject to traditional rules of contract interpretation. [10] Nothing about the Avitzur precedent is restricted only to the laws of New York state. In turn, on a federal level, courts need to examine religious arbitration agreements only through the lens of classical procedure and contract law in deciding whether to vacate them. 

An additional issue presented in the petition of Church of Scientology v. Bixler is the opinion that allowing former believers to vacate their arbitration agreements creates a double standard. [11] The language of the free exercise clause of the First Amendment ensures a safeguard against creating different legal standards for religious entities as opposed to secular ones. Compelling ex-believers to submit to arbitration by a religious body, the counterargument goes, would constitute an intrusive state action into one’s religious life.  However, this assumes that the judiciary compelling arbitration is, in and of itself, a state action—an assumption that contravenes legal precedent. 

Appellate courts have already held that the mere fact that a government actor is upholding an arbitration agreement does not constitute an intervention. In the Ninth Circuit Court of Appeals case Roberts v. AT&T Mobility LLC (2019), a class-action lawsuit was brought against AT&T for allegedly breaching an advertising promise; causing AT&T to compel arbitration. [12] The plaintiffs claimed that by forcing arbitration, their First Amendment right to freely petition the government would be infringed upon, as they did not knowingly waive their right to have a court adjudicate their claims. The Appellate Court, however, found that AT&T’s arbitration agreement was legally justifiable since there was no state imperative to arbitrate. [13] Citing an earlier arbitration-dispute case, the court in Roberts affirmed that since “‘[n]o federal-law required [Plaintiffs] to waive [their] right to litigate,’ there is no state action simply because the state enforces that private agreement.” [14]  In other words, a court’s affirming a willingly-executed private contract does not constitute a state intervention into the terms of the contract. With this standard in mind for secular arbitration agreements, it is clear that Church of Scientology creates a legal landscape which defines state action for religious arbitration in a fundamentally different way. This double-standard is unconstitutional, especially as a matter of First Amendment law protecting against hostile governmental attitudes towards religion. [15]

An application of traditional contract law onto religious arbitration agreements also serves an important function of preserving the overall integrity of contracts for religious goods and services. As argued in the Church of Scientology petition, nothing about the California Court of Appeal’s ruling that there is a “constitutional right to extricate [one’s self] from [a] faith” would prohibit one from backing out of a contract involving anything religiously-related. [16] For instance, a synagogue membership application which requires signing a religious arbitration agreement, in addition to paying dues, could be completely voided under the Court of Appeal’s ruling; this would lead to many non-payments and breaches of otherwise legally sound contracts. A ruling that calls into question the validity of many contracts that are otherwise legally sound should be critically re-examined by the courts.

An argument in favor of overturning Church of Scientology is not to say, however, that religious arbitration agreements should effectively be given ‘freedom of contract’ and thus avoid government scrutiny altogether. While the courts cannot intervene to interpret religious rules of procedure, arbitration awards can still be vacated for grossly improper adjudication of a case. [17] If a mediator were, for example, to refuse any testimony or evidence from a party during a proceeding, surely the secular courts could intervene irrespective of religion. Additionally, if a religious arbitration agreement did require signatories to believe in the faith in order to arbitrate, such a contract could theoretically be voided on the grounds that it demands too permanent of a commitment on one’s constitutional right to freely exercise religion. While the issues at play in Church of Scientology v. Bixler are incredibly complex, closely examining the case reveals that only a simple reading of contract law is necessary to determine whether a religious arbitration agreement has violated the right to freely exercise religion. In order to maintain a legally justifiable conception of our First Amendment, this straightforward standard must be applied, and Church of Scientology v. Bixler precedent should be challenged or re-examined through similar cases.

Edited by Anna Qiang

Sources:

[1] Church of Scientology International, et al v. Chrissie Carnell Bixler, et al., cert. denied, No. 22-60 (July 21, 2022), 3-4.

[2] 9 U.S. Code § 2.

[3]  Caryn Litte Wolf, “Faith-Based Arbitration: Friend or Foe? An Evaluation of Religious Arbitration Systems and Their Interaction with Secular Courts,”  Fordham Law Review, 175(1), (2006), 444, https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=4191&context=flr.

[4]  Wolfe, “Faith-Based Arbitration,” 445.

[5] Serbian Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976).

[6] Church of Scientology, cert. denied, 7-9.

[7] Beth Din of America Standard Arbitration Agreement, accessed November 25, 2022, https://bethdin.org/resources/. 

[8] Elizabeth R. Lieberman, “Avitzur v. Avitzur: The Constitutional Implications of Judicially Enforcing Religious Agreements”, Catholic University Law Review, 33(1), (1983), 222-223. 

[9] Avitzur v. Avitzur, 58 N.Y.2d 108, 459 N.Y.S.2d 572, 446 N.E.2d 136 (N.Y. 1983).

[10] Lieberman, “Avitzur v. Avitzur”, 224.

[11] Church of Scientology, cert. denied, 28.

[12] Roberts v. AT&T Mobility LLC, 877 F.3d 833 (2017).

[13] Roberts v. AT&T Mobility LLC, 877 F.3d 833 (2017).

[14] Duffield v. Robertson Stephens & Co., 144 F.3d 1182 (9th Cir. 1998), quoted in Roberts.

[15] Church of Scientology, cert. denied, 28.

[16] Bixler v. Superior Court, No. B310559 (Cal. Ct. App. Jan. 19, 2022); Church of Scientology, cert. denied, 29.

[17] Wolfe, “Faith-Based Arbitration,” 444.