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Published online by Cambridge University Press: 24 February 2020
1 Many among us are—at first emotional read—more attracted to the extremes. Consider the Hasidic story of Rabbi Menachem Mendel of Kotzk from two centuries ago. When he was asked why his views are so extreme and harsh, he took the questioner to the window of his apartment and told him that when one looks out the window, “you see, the two sides of the road are for human beings; only horses walk in the middle.” But, upon reflection, we see that the Maimonidean model of the golden mean as the best ethical place to be is a better view. Maimonides, Introduction, Commentary on the Ethics of the Fathers, chapter 4. For more on this tension, see Rabbi Adin Steinsaltz, The Golden Mean and the Horses’ Path, Aleph Society, https://steinsaltz.org/essay/goldenmean/ (last visited December 15, 2019).
2 See Michael J. Broyde, Ira Bedzow & Shlomo Pill, The Pillars of Successful Religious Arbitration: Models for American Islamic Arbitration Based on the Beth Din of America and Muslim Arbitration Tribunal Experience, 30 Harvard Journal on Racial & Ethnic Justice 33–76 (2014); see also David Aikman, America's Religious Past Fades in a Secular Age, Wall Street Journal (Oct. 25, 2012), http://online.wsj.com/news/articles/SB10001424052970203630604578073171838000416.
3 Id. Pew Research Center data from 2007 indicated that “the United States is on the verge of becoming a minority Protestant country; the number of Americans who report that they are members of Protestant denominations now stands at barely 51%.” U.S. Religious Affiliation: Religious Landscape Survey, Pew Research Center (Feb. 1, 2008), https://www.pewforum.org/2008/02/01/u-s-religious-landscape-survey-religious-affiliation/. By 2012, the prediction had come true. “Nones” on the Rise: One-in-Five Adults Have No Religious Affiliation, Pew Research Center (Oct. 9, 2012), http://www.pewforum.org/2012/10/09/nones-on-the-rise/ (“In surveys conducted in the first half of 2012, fewer than half of American adults say they are Protestant (48%). This marks the first time in Pew Research Center surveys that the Protestant share of the population has dipped significantly below 50%.”).
4 Carl N. Degler, Out of Our Past: The Forces That Shaped Modern America 296 (1970) (“[T]he metaphor of the melting pot is unfortunate and misleading. A more accurate analogy would be a salad bowl, for, though the salad is an entity, the lettuce can still be distinguished from the chicory, the tomatoes from the cabbage.”).
5 See, for example, Margot Sanger-Katz, Trump Administration Strengthens “Conscience Rule” for Health Care Workers, New York Times (May 2, 2019) https://www.nytimes.com/2019/05/02/upshot/conscience-rule-trump-religious-exemption-health-care.html. With little difficulty, one can show countless examples of religious communities that at one time sought to remake the law in their image and are now content to simply exempt their followers from the laws they do not agree with.
6 Some religious communities even welcome this, as they see greater threat from alternative religious values than secular ones. See Broyde, Michael J., Jewish Law and American Public Policy: A Principled Jewish Law View and Some Practical Jewish Observations, in Religion as a Public Good: Jews and Other Americans on Religion in the Public Square 161–84 (Alan Mittleman ed., 2003)Google Scholar.
7 For just one example of this, see Michael Paulson, Colleges and Evangelicals Collide on Bias Policy, New York Times (June 9, 2014), http://www.nytimes.com/2014/06/10/us/colleges-and-evangelicals-collide-on-bias-policy.html (discussing how many institutions are forcing religious student organizations whose values discriminate against homosexual conduct off campus).
8 The most recent attack on religious arbitration can be found at Sophia Chua-Rubenfeld & Frank J. Costa, Jr., The Reverse-Entanglement Principle: Why Religious Arbitration of Federal Rights Is Unconstitutional, 128 Yale Law Journal 2087–121 (2019), which essentially advances three arguments against religious arbitration. The first is that “religion” is particularly perfidious in America since it professes values that are deeply problematic to values of American law. The second, the “reverse entanglement” argument, which is distinctly contrary to Witte's moderation, argues that all religious law questions that could be addressed by secular law create establishment clause problems. The third is that all choice of law selections that allow one to ignore federal law ought to not be enforced, even with an explicit choice of law provision. Each of these arguments undermines the history of alternative dispute resolution in America and diminishes religious freedom, none of which is deemed problematic by its authors.
9 Indeed, in recent years there has been a considerable increase in articles addressing religious arbitration. These are all discussed in Michael J. Broyde, Sharia Tribunals, Rabbinical Courts, and Christian Panels: Religious Arbitration in America and the West 3–28 (2017).
10 Caryn Litt Wolfe, Faith-Based Arbitration: Friend or Foe? An Evaluation of Religious Arbitration Systems and Their Interaction with Secular Courts, 75 Fordham Law Review 427–69, at 427 (2006).
11 Federal Arbitration Act, 9 U.S.C. §§ 1–16 (1947). Before Congress enacted the FAA, courts were often hostile to alternative dispute resolution, including arbitration. See Meacham v. Jamestown, F & C. R. Co., 105 N.E. 653, 655 (N.Y. 1914).
12 For more on this, see Broyde, supra note 9, at 115–36.
13 Id.
14 Id.
15 These statutes provide that there are certain things arbitration panels may and may not do in the course of making decisions that represent procedural violations: they may not call a hearing at 4:00 a.m. on a federal holiday; they must provide litigants with a reasonable amount of notice; they must conduct hearings in a language that the parties understand; arbitrators may not have a financial interest in the resolution of the case or financial involvement with the parties, as well as other basic ideas of procedural fair play. See, e.g., JAMS Policy on Employment Arbitration: Minimum Standards of Procedural Fairness, JAMS (July 15, 2009), http://www.jamsadr.com/employment-minimum-standards/. Of course, the JAMS policy is only binding when it is incorporated by contract and the minimal obligations of the arbitrator under state law are considerably lower.
16 Rules and Procedures, Beth Din of America, https://bethdin.org/wp-content/uploads/2018/04/BDA118-RulesProcedures_Bro_BW_02.pdf (last visited May 19, 2019).
17 The Christian Court, Peacemaker Ministries, http://www.peacemakers.net/christiancourt/ (last visited May 19, 2019).
18 Procedural Rules of Muslim Arbitration Tribunal, Muslim Arbitration Tribunal, http://www.matribunal.com/rules.php (last visited May 19, 2019).
19 This is a recurring theme of two of my books close to twenty years apart. See Michael J. Broyde, Marriage, Divorce and the Abandoned Wife in the Jewish Tradition (2001), which discusses this from the uniquely diverse Jewish view; and Broyde, Sharia Tribunals, Rabbinical Courts, and Christian Panels, supra note 9, at 115–36. The first book argues this idea from an insular Jewish view and the second from a secular view.
20 Consider for example, the case of a heter iska, which is a contract used in the Jewish tradition to avoid the occasional prohibition against charging interest by changing the form of loan from a debt to a business deal (iska is the Hebrew word for business). Secular court have occasionally looked at these documents and—due to their unfamiliarity with the Jewish tradition—thought that they were partnership agreements, when in fact they were ritual documents intended to be of no financial relevance at all. See Steven Rensicoff, A Commercial Conundrum: Does Prudence Permit the Jewish “Permissible Venture”? 20 Seton Hall Law Review, 77–129 (1989).
21 Texas Judicial Restraint in Religious Doctrine Interpretation Amendment (2015), Ballotpedia, http://ballotpedia.org/Texas_Judicial_Restraint_in_Religious_Doctrine_Interpretation_Amendment_(2015) (last visited May 19, 2019).
22 Douglas Laycock, Church Autonomy Revisited, 7 Georgetown Journal of Law & Public Policy 253–78, at 254 (2009).