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Wednesday, November 10, 2010

Religious Arbitration and the New Multiculturalism

In my previous post, I floated my thought that there's been a rise of a "new multiculturalism," which focuses less on symbolic recognition and more on jurisdictional differentiation.  Put differently, many minority groups are less concerned with their integration into the public sphere and are increasingly concerned with their own law-like autonomy.  And, I think recent attacks on religious arbitration (here's on op-ed of mine on the issue) represent a key front in the battle over the new multiculturalism.

Now my sense is that the new multiculturalism has not played particularly well on the constitutional level.  With some exceptions (Boy Scouts v. Dale stands out as such an exception), cases like Employment Division v. Smith and CLS v. Martinez come to mind as instances where the Court did not embrace the new multiculturalism in constitutional doctrine.  In fact, nothing really captures the Court's rejection of the new multiculturalism quite as much as Employment Division's memorable phrase that each person cannot become "a law unto himself."

But what groups haven't found in public law, they have to some degree found in private law.  The most notable example is religious arbitration whereby parties submit disputes - via an arbitration agreement - to religious authorities for adjudication in accordance with religious law.  Because the awards of religious arbitration tribunals can be confirmed and rendered legally enforceable (like any other arbitration award), religious groups can merge religious authority with legal enforcement (here's the beginnings of my longer thoughts on the topic).  Such an option provides the type of law-like autonomy that stands at the center of the new multiculturalism.

I've elsewhere blogged a bit about the challenges of religious arbitration.  But it's not surprising that the recent amendment in Oklahoma is aimed at prohibiting religious arbitration - the bill's sponsor has been pretty clear about that (check out this video).   The new multiculturalism is seen as dangerous becuase it's not about bringing minority groups into the public sphere, but it's about letting groups retain some degree of autonomy.  In this way, the new multiculturalism encompasses attempts on the part of minority groups to share, to some extent, law making authority with the nation state.  And, it's for this very reason that attacking religious arbitration is the obvious next step in the battles over the new multiculturalism.  

My own view is that we should not be banning religious arbitration, but instead finding ways to build on the freedom-enhancing value of religious arbitration while still protecting against some of the unique problems it raises.  I'll hopefully say a bit more about this in an upcoming post.

Posted by Michael Helfand on November 10, 2010 at 03:14 AM in Constitutional thoughts | Permalink


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Michael, if you're not already aware of it, it would also be worth looking at a recent UK case (whose name escapes me right now), in which the court invalidated an arbitration agreement that included a requirement that the arbitrator be of a specific religious denomination. The court held that the arbitrator was an employee of the parties, and consequently such a requirement was in violation of employment-based anti-discrimination laws. The court did allow that this objection might not exist if the arbitrator was to decide on grounds specific to that religion, but since the agreement was to be interpreted in accordance with English law, the court held this was not the case.

Posted by: Tony Cole | Nov 14, 2010 10:15:00 AM

Michael, this is important stuff; nice work with the op-ed. You might check out, if you haven't already, an interesting (and, in my view, troubling in some respects) decision by the Canadian Supreme Court called Bruker.

Posted by: Rick Garnett | Nov 10, 2010 10:46:50 AM

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