Volume 86, Number 5

November 2011

Religious Arbitration and the New Multiculturalism: Negotiating Conflicting Legal Orders

Michael A. Helfand

This Article considers a trend toward what I have termed the “new multiculturalism,”
in which conflicts between law and religion are less about recognition
and symbolism and more about conflicting legal orders. Nothing typifies this trend
more than the increased visibility of religious arbitration, whereby religious groups
use current arbitration doctrine to adjudicate their disputes not in U.S. courts and
under U.S. law, but before religious courts and under religious law. This dynamic
has pushed the following question to the forefront of the multicultural agenda:
Under what circumstances should U.S. courts enforce arbitration awards issued by
religious courts in accordance with religious law? Indeed, with growing skepticism
regarding the oppressive potential of religious majorities, critics have questioned
whether religious arbitration has any place in a regime dedicated to individual liberties.
By contrast, this Article contends that current arbitration doctrine can meet
the challenges of the new multiculturalism. To do so, this Article makes two concrete
policy recommendations: (1) courts should redefine the scope of enforceability
of religious arbitration awards by limiting the application of public policy to vacate religious arbitration awards; and (2) courts should expand the application of
the unconscionability doctrine to void religious arbitration agreements.