Religious Arbitration in Family Law

The Texas Supreme Court recently ruled that an Islamic prenuptial agreement is void because the agreement fails to take into account the “best interest of the child” standard. Texas Governor, Greg Abbott, has recently announced a ban on “Sharia law and Sharia compounds” in the state, citing longstanding principles that contracts violating Texas public policy cannot be enforced.

What Is Arbitration?

Arbitration is a legal process where both sides have their legal disputes heard by a neutral third person or persons. The neutral third persons are essentially private judges and are known as arbitrators. Arbitrators hear the evidence and arguments and make a binding decision on all parties.

Arbitration is often preferred over regular lawsuits because arbitration is typically final. Federal law makes arbitration binding and typically non-appealable. Since the decision is supposed to be binding and final, parties, in theory, save time and money rather than go through a seemingly endless appeal process.

Many parties select arbitrators based upon expertise in a given field. For instance, if Microsoft and Apple have a copyright dispute, they can hire an arbitrator who knows more about copyright law in electronics than an average civil court judge.

Why Wouldn’t Parties Want to Use Religious Arbitration?

Religious arbitration may not be suitable when a party is concerned with the neutrality of the arbitration or is concerned about the conflicts that religious arbitration may have with secular law. A party who has left or no longer wishes to participate in a religious faith may find religious arbitration unsuitable. A party that is trying to leave a religion, such as Scientology, Catholicism, or Islam, may not want the “neutral” arbitrator to be enforcing the tenants of that faith.

Likewise, a party may have concerns about certain religion’s values when it conflicts with those protected by secular law. Gender equality, LGBTQ rights, and abortion may be deemphasized or ignored by certain faiths.

Why Would Parties Agree to a Religious Arbitration?

Just as two businesses may want a subject matter expert to settle their dispute, two persons in a religious setting may prefer someone with a deeper grasp of their religious dispute. For instance, if a pastor has an employment disagreement with his church, both the pastor and the church may prefer an arbitrator familiar with their domination rather than an official judge who may not be familiar with the details of their faith.  Similarly, couples who have been married within the faith may prefer an arbitrator who understands the laws of their religion rather than have a lay person adjudicate their marriage. They may also prefer an arbitrator who can act as a spiritual advisor rather than a secular judge who may be more concerned with enforcing certain laws or policies.

For instance, there was a child custody case where a Native American community wanted the child to remain within the community because the community’s population had become so small that its survival was in jeopardy. However, one of the parents wanted to take the child to live in a large city with greater resources and access to other people not affiliated with the Native American community. A secular American court should protect the child’s best interests as an individual right. However, the Native American community might have preferred arbitration in this instance to preserve community relations and harmony.

Religious minorities such as the Amish, certain Jewish, Islamic, Christian denominations, and other religious minorities might want to choose arbitration, which prioritizes the tenets and interests of the faith more than secular law would.   

Religious arbitration exists because secular governments permit them to. In the United States, religious arbitration is permissible provided that the arbitration is voluntary on the part of all parties – no one is coerced into participating if they would prefer regular litigation over arbitration.

Moreover, governments in the United States cannot discriminate or favor certain religions over others. If a state wants to permit religious arbitration for Catholics or Mormons, religious arbitration must be an option for all other religions as well. This would include Islam and “Sharia law.” If religious arbitration is permitted for one faith but not others, that would violate both the establishment clause and the free exercise clauses of the First Amendment.

 Do I Need a Lawyer for My Family Law Issue?

If you have difficulty seeing your child as the holidays approach, you should contact a family lawyer today. A skilled family lawyer can answer your questions, provide guidance on your case, and represent your best interests in court.