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A virtual conference sponsored by Canopy Forum of the Center for the Study of Law and Religion at Emory (CSLR) featuring scholars, experts and practitioners on the topic of religious arbitration. View the full video and browse all essays here.

“Two Conceptions of Anti-Establishment: When Should Courts Enforce Religious Arbitration Agreements?”

Brian Hutler

In previous work I’ve argued that the Establishment Clause might limit the enforceability of religious arbitration agreements.I drew on cases like Larkin v. Grendel’s Den for the proposition that the government should not transfer or delegate certain core governmental functions to religious organizations.When a court enforces a religious arbitration agreement, it thereby transfers a governmental function (namely adjudication of a civil legal dispute) to a religious organization (namely, the religious arbitrator or arbitration panel). This delegation of governmental function is arguably in tension with the Larkin principle.

This line of argument raises two important questions. First, when is resolving a dispute properly a governmental function? After all, many religious arbitration agreements deal with matters that straddle the line between the secular and the religious—e.g., marriage and divorce, the structure and membership of religious organizations, or the ownership of church property. When a legal dispute fundamentally involves questions about religious doctrine or belief, secular courts ought generally to take a back seat and let religious authorities decide the issue.(The principle that courts should defer to religious authorities when civil cases turn on matters of religion is sometimes called the “religious question doctrine,” and has been expressed in cases such as Presbyterian Church in United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440 (1969).) And religious arbitration agreements might help to streamline that process by clearly identifying, in advance and with the consent of the parties, the process by which disputes involving religious questions will be resolved.

The proposition that courts should defer to religious authorities on matters of religion, and that religious arbitration agreements can facilitate this process, is relatively uncontroversial. Or at any rate, I shall assume it is correct for now. There is a second question, however, that is more difficult to answer: namely, who gets to decide whether a question is religious in nature? And, more specifically, can a religious arbitration agreement suffice, all by itself, to turn a dispute governed by that agreement into a “religious question,” notwithstanding the other aspects of the dispute?

One might argue that by entering into a religious arbitration agreement, the parties agree (among other things) that the nature of any future disputes governed by the agreement are religious in nature, and so are not within the purview of the secular civil law. For example, a religious arbitration clause contained within a pre- or post-nuptial agreement might signal that the marriage is to be governed by religious rules such that upon its dissolution any disputes about marital property turn on “religious questions.” Similarly, religious arbitration agreements contained within contracts that specify the terms of membership within a religious community or the payment of donations to a religious organization might signal that the contract itself is governed by religious principles. If so, the religious arbitration agreement itself might suffice to shift a would-be secular legal dispute into one that is religious in nature.

How should we (and the courts) evaluate this sort of argument? Can the parties to an agreement use a religious arbitration clause to determine for themselves that their agreement is religious in nature? Or should courts determine, by reference to some other standard, which disputes turn on “religious questions,” and which ought to be governed by secular civil law?

I think this question is deep and non-trivial. Moreover, the answer to it depends upon our interpretation of the Establishment Clause and our commitment, expressed thereby, to the Anti-Establishment Principle. Roughly speaking, the Anti-Establishment Principle says that the United States must not have an official state religion. This Principle originally applied only to the federal government, but now applies at the state and local levels as well.

I believe that the Anti-Establishment Principle allows for two very different interpretations—two different “conceptions” in the Rawlsian sense, or two different ways of thinking about the proper relationship between a secular government and the religious persons and organizations that operate within the same geographical bounds.

The first conception, “Separate Spheres,” says the government must provide opportunities for religious organizations to operate without government oversight or interference. On this view, the government has a negative obligation to stay out of the internal affairs of religious organizations. The government may also have a positive obligation to support or promote the maintenance of religious organizations through religious exemptions, favorable tax statuses, and even grants or subsidies when they are no-strings-attached and available to everyone on equal terms. At the same time, religious organizations should generally stay out of the government’s affairs, and not seek political power, except perhaps as a way to protect against governmental encroachment.

According to the Separate Spheres conception, the secular government and religious organizations may have overlapping physical jurisdictions, but they occupy distinct domains of authority, separated by a mutually upheld boundary. To draw on Jefferson’s famous “wall of separation” metaphor, religious organizations and the secular government are like neighbors with a jointly owned boundary fence. Each neighbor has an obligation to maintain the fence, and not to worry too much about what happens on the other side.

On this conception, it may make sense for individuals to choose between these different domains of authority, and to organize their lives so that they can move between these different domains, deriving different sorts of benefits and protections from each. For example, an individual might choose to lease a car or buy a house under secular civil law, while getting married under the rules of their religious community. And this may be not much more mysterious than renting office space in New York while incorporating one’s company in Delaware.

According to the Separate Spheres conception, then, religious arbitration agreements provide a mechanism for the parties to choose the authority that will govern their relationship: religious or secular. These agreements allow individuals to select which side of the “wall” they want their contractual relationship to operate under. And so within certain boundaries—i.e., for any matter that could fall under religious authority—secular courts should defer to the pre-dispute agreement of individuals as to which authority should govern. On this conception, the enforcement of many religious arbitration agreements is consistent with Anti-Establishment (and with the Larkin principle) because the agreements themselves render the disputes that fall under them matters of religion that are properly subject to religious authority. And resolving disputes that involve religious questions is not a governmental function.

There is, however, an alternative conception of the Anti-Establishment Principle that would suggest a different conclusion. I’ll call this conception “Voluntariness,” which states that the government must foster a society in which individuals can freely choose whether and when to participate in religious activities or organizations. The Voluntariness conception grounds both a negative obligation—the government must not impose barriers on religious participation—and a positive obligation to ensure that individuals have meaningful alternatives to religious participation. This positive obligation requires, in part, that when religious organizations provide certain essential goods or services, the government must ensure that everyone has access to secular or nonreligious alternatives to these religious providers.¹The positive obligation rests on the idea that whenever an individual is entitled by law to a certain socially produced good or service, the individual must be able to access this good or service via a non-religious provider. This constraint serves to ensure that participation with a religious organization is always genuinely voluntary, and not a matter of practical necessity.

The Voluntariness conception is arguably grounded in our society’s commitment to individual autonomy and the freedom to create and define one’s own plan of life, including one’s religious identity. The availability of secular alternatives ensures that individuals may become a member or take on roles within religious organizations without the risk that those roles are absolute or irreversible. (Voluntariness does not, of course, say that individuals can take on any role that they want.) Moreover, the availability of secular alternatives creates space for a sustained and authentic commitment to one’s religious values. The opportunity to opt-out gives meaning to the decision to consistently opt-in. For example, the choice to attend a religious school despite the availability of comparable secular alternatives is more likely to be authentic and a genuine expression of one’s autonomy and religious identity.

The Voluntariness conception—and the importance of meaningful secular alternatives—is arguably expressed in Zelman v. Simmons-Harris, the case that upheld Cleveland’s school-choice voucher program. There, the Court held that allowing school-choice vouchers to be used to attend religious schools is permissible under the Establishment Clause only if “parents who use vouchers to send their children to religious private schools do so as a result of true private choice.”The Court upheld the voucher scheme because, in its judgment, there were “genuine opportunities for Cleveland parents to select secular educational options for their school-age children,” including the public schools.Thus, the Court has held that vouchers may be used for religious education only when students have genuine alternatives to religious education.

According to the Voluntariness conception, the enforcement of religious arbitration agreements raises serious questions about the government’s role in providing genuine secular alternatives to religious participation. The resolution of disputes falling under civil law is an important social service to which everyone is entitled, and the government must ensure that everyone has access to secular or nonreligious providers of this service. Courts are the most obvious civil dispute resolution provider, but secular arbitration might also qualify. The enforcement of a religious arbitration agreement, however, forces the parties to utilize a religious provider, and eliminates secular alternatives. According to this view, courts should instead ensure that the parties have a genuine secular alternative to religious arbitration, even when they had previously agreed to such arbitration. As such, courts should enforce religious arbitration agreements only if the underlying dispute really does involve a religious question, according to the courts’ own determination of the facts of the case and the legal question at issue.

Which of these two “conceptions” of Anti-Establishment is the correct one? I won’t venture to answer that question here. I think both have intuitive plausibility, and both can find support within constitutional doctrine, political theory, and public discourse. Indeed, in many contexts, the two conceptions are compatible—e.g., both might condone tax benefits and other forms of governmental financial support for religious organizations. However, the two conceptions differ significantly in their assessment of religious arbitration agreements. As scholars, theorists, and practitioners, we ought to think carefully about these rival conceptions of Anti-Establishment in conceptualizing and evaluating religious arbitration agreements. ♦

Brian Hutler is a Hecht-Levi Postdoctoral Fellow at the Berman Institute of Bioethics, Johns Hopkins University. He holds a JD and a PhD from the UCLA Law and Philosophy Joint Degree Program. Brian’s research focuses on human rights, justice, and legitimate governance, including the relationship between religion and secular government.

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Recommended Citation

Hutler, Brian. “Two Conceptions of Anti-Establishment: When Should Courts Enforce Religious Arbitration Agreements?” Canopy Forum, March 15, 2022. https://canopyforum.org/2022/03/15/two-conceptions-of-anti-establishment-when-should-courts-enforce-religious-arbitration-agreements/.

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