Church Autonomy vs. Religious Arbitration: Take 2

A couple of posts back, I highlighted (in the context of some recent litigating over the Church of Scientology's arbitration agreement) how decisions of religious tribunals could be subjected to two different standards of review.  Mark Movsesian over at the CLR Forum blog (for those of you interested in law & religion, the CLR Forum is a must read) weighed in on the issue, noting that I promised a follow-up post.  So here it is, with my additional thoughts after the break; but for those really interested, I address these issues in my forthcoming article "Litigating Religion."

If a decision is issued by a religious tribunal pursuant to an arbitration agreement between the parties, then the award can be enforced in court.  However, a court can refuse to do so on various statutory grounds, including fraud or collusion.  By contrast, if religious tribunal issues an award (in the absence of an arbitration agreement) and one of the parties tries to challenge the tribunal's decision as based on fraud or collusion (by, for example, pursuing the monies at stake in the dispute before the tribunal), it is likely that based on current Supreme Court doctrine, the court will abstain from considering the claims of fraud or collusion on church autonomy grounds.

I say this because of how courts currently think about the "religious question" doctrine; to piece together some of the case law, "civil courts cannot adjudicate disputes turning on church policy and administration or on religious doctrine and practice" because doing so would require a court to resolve an “underlying controversy over religious doctrine or practice.”   And the Supreme Court has worried that resolving claims of fraud or collusion would inevitably require the court to become impermissibly entangled with religious questions (although, to be sure, it has not definitively foreclosed judicial resolution of claims of fraud or collusion).  Put differently, courts are prohibited by the First Amendment from litigating religion.

In my article, I critique this blanket prohibition against courts litigating religion.  But first I'd like to note an interesting consequence that flows from these different standards.  

Consider, for example, a case where a church has terminated its pastor for cause, but accidentally sends the pastor one additional paycheck – the hazards of automatic bill pay – after the termination.  If the pastor were to sue for breach of contract and the church were to counterclaim for the additional paycheck, the court would likely dismiss the entirety of the case – including the church’s counterclaim – even if the church’s internal tribunal had upheld the termination of the pastor.  The rationale here is straightforward; courts will not adjudicate disputes turning on religious doctrine or practice.  And so they must simply remain "hands off" when it comes to a religious dispute, prohibited from resolving either the pastor's claim or the church's counter-claim because both would require evaluating whether or not there was cause for the pastor's termination.  And evaluating the existence of cause would require the court to resolve undeniably religious questions (for example, was the pastor satisfying the standard job requirements for being pastor?).  

By contrast, if the parties had submitted their claims for binding arbitration to a religious tribunal, a court would enforce the resulting award on its terms.  If the tribunal resolved both the claim and counterclaim pursuant to a binding arbitration agreement, then the court would enforce all aspects of the tribunals monetary award, even if that required extracting the post-termination paycheck from the pastor.

On one level, this works well.  If you want the determination of a religious tribunal enforced on its terms pursuant to arbitration law, you have to satisfy the higher bar of demonstrating there was no fraud or collusion.  But if you simply want to insulate the decision of a religious tribunal under the First Amendment, then all you get is a court's abstention; it will neither enforce the award nor rehear the case.  It just stays out of the business of litigating religion.

But there are other reasons I still dislike the blanket ban on courts litigating religion.  I may try to squeeze them into one more post, but if not you can check them out here.