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"Judicial Review Of Religious Arbitration--Is There Too Much Or Not Enough?" by Emily A. Belfer

Judicial Review Of Religious Arbitration--Is There Too Much Or Not Enough?"

by Emily A. Belfer

I. Introduction

Under American law, the parties in most disputes can elect to have their case decided by a religious tribunal in the place of a secular court. Religious tribunals are classified as arbitration bodies by the civil legal system, with the decisions rendered by religious arbitration as rewards that generally cannot be appealed, like any arbitration award. Amanda Mauriello Baker, A Higher Authority: Judicial Review of Religious Arbitration, 37 VT. L. REV. 157 (2012).

While religious arbitrations often operate smoothly without stirring controversy, some decisions made by religious arbitral tribunals can contradict American legal notions of fairness; this tension has historically come up in family law disputes. Caryn Litt Wolfe, Note, Faith-Based Arbitration: Friend or Foe? An Evaluation of Religious Arbitration Systems and their Interaction with Secular Courts, 75 FORDHAM L. REV., 427, 447-448, (2006); see also Ayelet Shachar, Privatizing Diversity: A Cautionary Tale from Religious Arbitration in Family Law, 9 THEORETICAL INQUIRIES L. 573, 576 (2008). For example, the division of marital property between a divorcing couple according to a religion's standards of equity and ownership might diverge from a court's standards. See Hirsch v. Hirsch, 774 N.Y.S.2d 48 (N.Y. App. Div. 2d Dep't 2004). Clashes between religious and civil law also arise in employment law disputes, where former employees of religious institutions contest both the termination of their employment and enforceability of a pre-contacted arbitration clause. See, e.g., Hosanna-Tabor Evangelical Lutheran Church and Sch. v. EEOC, 132 S. Ct. 694 (2012); Graves v. George Fox Univ., 2007 WL 2363372, *1-6 (D. Idaho 2007). In the cases that will be discussed below, parties in family and employment law disputes submit to religious arbitration but are unhappy with the tribunal's decision. These parties sometimes appeal the award issued by religious arbitration by petitioning for judicial review by a civil court.

After evaluating the facts of any contested case using the cocktail of applicable statutory and common law standards, courts apply the relevant standard of review to grant or deny motions to review arbitration proceedings. For example, the public policy vacatur,a common law rule in some jurisdictions, permits courts to vacate religious arbitration awards if they are deemed to have violated a strong public policy or interest. N.Y. C.P.L.R. § 7511(b) (2012). While this discretionary policy-driven vacatur is available to judges in New York, judges in many other jurisdictions are subject to a highly restricted and limited set of exceptions that permit them to review arbitration awards. Recent scholarship has questioned the powers available to judges when agreements to arbitrate using a religious panel or awards from religious panels are contested.

Judicial review of religious arbitration is particularly relevant in light of a 2005 decision issued by the Fifth Circuit in Prescott v. Northlake Christian School. 141 F. App'x 263, 263 (5th Cir. 2005). The court held that civil courts cannot automatically vacate remedies awarded by religious arbitrations just because an award clashes or is inconsistent with state law. Id. at 272. In other words, there may be no basis to ever vacate a remedy that conflicts with secular law as long as the award originates from the authority given to the arbitrators.

The current mechanisms for judicial review should be scrutinized to determine if reevaluation, reform, expansion, or limitation, are required. The following analysis will conclude that while there are some flaws in the current bases for judicial review, especially in the context of family law where groups such as women are often vulnerable within the legal contexts of traditionally minded religious communities, the system is generally sound, though it would benefit from peripheral reforms. While a judicial clearer standard for using the public policy vacatur in applicable jurisdictions would be a positive first step, the most important thing for courts to do is retain some oversight over arbitration operations and carefully evaluate arbitration decisions on appeal for signs of unconscionability. Enacting reforms focused on the pre-arbitration phase of a dispute could ideally solve all of the system's current flaws and ultimately eliminate the calls to expand or curtail a largely functional system.

II. Background

In a religious arbitration, disputants agree to use an arbitrator who consults a religious legal system as an alternative to American civil law in order to resolve a dispute. Shachar, at 381. A religious tribunal arbitrates the dispute, though a secular and recognized umbrella entity such as the American Arbitration Association (AAA) or Judicial Arbitration Mediation Services (JAMS) administers and oversees the arbitration. Wolfe, at 436.

Religious arbitration is an appealing method of dispute resolution to adherents of religious faiths. First, the parties have great flexibility and control over the proceeding through their statutory right to exercise discretion over the procedures applied to resolving their dispute. Second, parties may opt to use a faith-based arbitration over secular arbitration because of the comfort and familiarity that comes with presenting an argument to someone who shares their value system. A religious tribunal is better equipped to resolve disputes by incorporating the religious ideals that the parties value or religious laws that the parties adhere to than a secular court that need only consult civil law. Wolfe, at 441.

The Federal Arbitration Act ("FAA") is the controlling statute that regulates arbitration in the United States. See, e.g., Allied-Bruce Terminix Co., Inc. v. Dobson, 513 U.S. 265, 270-272 (1995). The Uniform Arbitration Act ("UAA"), a model statute, is a second statutory influence on arbitration administration in the United States. The FAA was enacted in the 1925 to provide the judicial facilitation of private dispute resolution through arbitration. Id. at 270-272. The FAA stipulates that arbitration is valid only if the parties validly agree to arbitrate. Baker, at 7. Valid agreements can be formed either by including a written provision into a contract that agrees to settle all disputes through arbitration or by executing a written agreement to arbitrate a dispute that already exists. Id. The FAA lists limited grounds of appeal to the civil judiciary. The statute allows judges to review and vacate arbitration awards only when the award was fraudulent, if the arbitrators were biased or corrupt, guilty of misconduct, or if exceeded their powers. 9 USCA § 10(a)(1)-(4) (2012). Unconscionable conduct that meets this standard can be substantive, such as a blatant disregard for one party's argument, or procedural, such as an employer giving an employee an insufficient amount of time to read the terms of an employment agreement including an agreement to arbitrate written in clear and easily locatable language. Graves, 2007 WL at *5-6.

Judicial review of religious arbitration is not only constrained by statute but is also limited by the U.S. Constitution and other legal doctrines. The freedom to practice religion freely under the Establishment and Free Exercise clauses in the First Amendment makes it difficult for the judiciary to review decisions that stem from religious entities without impinging on constitutionally guaranteed rights. Michael C. Grossman, Note, Is this Arbitration?: Religious Tribunals, Judicial Review, and Due Process, 107 COLUM. L. REV. 169, 169-170 (2007). However, the First Amendment does not place religious organizations above the law. Meshel v. Ohev Sholom Talmud Torah, 869 A.2d 343, 343 (D.C. Cir. 2005); Steven C. Bennett, Enforceability of Religious Arbitration Agreements and Awards, 64 DISP. RESOL. J. 24, 29 (2010). Therefore, a doctrine emerged at common law that judicial review of religiousarbitration can occur without interfering with the free practice of religion: courts must use only "neutral principles of law" in their analysis and may not scrutinize religious doctrinal matters. Encore Prod. v. Promise Keepers, 53 F. Supp.2d 1101, 1112 (D. Colo. 1999); Bennett, at 29.

Religious question, a related doctrine, is also derived from the First Amendment. Under the religious question doctrine, religious institutions are entitled to a degree of independence and insulation from secular courts. In order to comply with the Establishment clause, civil courts should be precluded from adjudicating any questions of law that relate to religious dogma or doctrine. The rationale behind this doctrine posits that religious arbitrators are experts in faith-based issues whereas civil court judges do not have this expertise and are therefore unqualified to hear certain issues. See Baker, at 26, (citing John Witte Jr., & Joel A. Nichols, RELIGIONS AND THE AMERICAN CONSTITUTIONAL EXPERIMENT 241 (3d ed. 2010)). Courts are hesitant to review decisions made by religious tribunals in light of these statutory and doctrinal constraints.

Courts have minimal powers of review over arbitral decisions due to the clear-cut permissible grounds for appeal under the FAA and UAA. Bennett, at 26. Judicial authority to review religious arbitration awards, though limited, is possible in a few ways. First, a court can use the neutral principles of law approach to determine if the parties validly agreed to arbitrate. Baker, at 33. If there was no valid agreement then the court can deem that arbitration invalid and vacate its award. If the court finds a valid agreement to arbitrate, it next evaluates if the arbitration process was corrupt in any way. Id. Second, the reviewing court can also vacate the arbitration award if finds that procedural defects, such as bias or lack of notice, took place at any point during arbitration. Walter, at 522. Additional grounds for vacating an award include: overstep of the arbitrator's power, evident mistake, or if the arbitrator showed a blatant disregard for the rules. Walter, at 518, 544. Generally, these types of procedural or substantive unconscionable conduct warrant judicial review if they are evident in the agreement to arbitrate or the arbitration award. The above-listed grounds of judicial review originate from the FAA and UAA though some jurisdictions have additional, more substantively based, grounds for judicial review, such as New York's public policy vacatur.

Christian, Jewish, and Muslim religious communities use religious arbitration in the United States most frequently, though tribunals for other faiths are also active. Grossman, at 177. Christian dispute resolution is adjudicated according to the laws and teachings of Jesus and the New Testament. Id. The most common form of Christian dispute resolution is Christian Conciliation, defined as "the voluntary submission of a dispute for biblically based conflict counseling/coaching, mediation, arbitration, or mediation/arbitration." Baker at 22, FN 94 (citing Rules of Procedure, Institute for Christian Conciliation). The primary entities that handle Christian dispute resolution today are Peacemaking Ministries and its affiliate, the Institute for Christian Conciliation (ICC). Grossman, at 177. Jewish religious tribunals are known as the Beth Din (or "Beit Din.") The judges that sit on the Beit Din apply Jewish law, halacha, to the cases before them. Grossman, at 176. The Beth Din of America (BDA) is currently the most elaborate network of Jewish courts in the United States today, and it decides religious issues such as conversion as well as commercial cases that involve Jews. Grossman, at 180. Naomi Maryles, a former administrative attorney at the BDA, adds that the BDA is meticulously careful to make sure that its policies and procedures comply with state and federal rules because it wants its decisions to be enforceable and upheld in the event of judicial review. Telephone Interview with Naomi Maryles, Former Administrative Attorney, Beth Din of America (Feb. 5, 2013).

Islamic panels are typically less organized and less pervasive throughout the United States, possibly because there is no permanent Muslim court system in the United States.In light of this, American Muslims to prefer to mediate their disputes themselves rather than submitting to arbitration and appointing a religious arbitrator. Grossman, at 179. Muslims who elect to use religious arbitration submit to panels organized though local mosques through a process that has yet to be structured or supervised under a unified religious court system. Id. Though this system has been criticized, decisions made by Muslim panels are enforceable in civil courts.

The operation of religious arbitration in the United States and how it is subject to judicial review are relevant issues in today's legal and social landscape where faith has taken the front seat on a host of issues. Interestingly, the Supreme Court has not ruled directly on the issue of enforceability of contested religious arbitration awards, leaving a morass of unanswered questions about this active issue. A facet of the religious arbitration discussion that has spurned tremendous recent dialogue is the enforceability of awards that follow Muslim shari'a law in Canada, after Canadian legislation sought to end civil recognition of Muslim arbitration. See, e.g., Donald Brown, Comment, A Destruction Of Muslim Identity: Ontario's Decision To Stop Shari'a-Based Arbitration, 32 N.C.J. INT'L L. & COM. REG., 495, 510 (2007). While Canadian law cannot be explored here, these legislative changes are important to bear in mind. They demonstrate that democratic governments today may be willing to render a previously enforceable type of religious arbitration unenforceable.

III. Illustrative Case Law

Examples from a few employment and family law cases illustrate the interplay between religious awards on appeal and the American judicial system. It is important to note that some unique doctrines apply to religious institutions within the context of employment law. For example, the ministerial exception is a subset of religious question doctrine that protects faith-based institutions from litigating employment discrimination lawsuits by not penalizing churches and religious institutions that discriminate while hiring clergy members. The doctrine demonstrates judicial deference to religious bodies. See, e.g.,Corp. of Presiding Bishop of Church Jesus Christ of Latter Day Saints v. Amos, 483 U.S. 327, 330 (1987). The United States Supreme Court noted just last year that it was addressing the ministerial exception for the first time in Hosanna-Tabor and yet declined to offer a formula for how similar cases could be analyzed past this case of first impression. Hosanna-Tabor, 132 S. Ct. at 705, 707. The intersection of guaranteed religious rights, employees of religious institutions, and termination of those employees from their jobs is an issue that is on the rise and remains judicially unresolved.

A. Employment Cases

The most recent appellate commentary on reviewing religious arbitrations came from the employment dispute in Prescott. The plaintiff in Prescott alleged violations of federally guaranteed rights after she was fired from her position as principal of a Christian school. Prescott, 141 F. App'x at 265. Plaintiff also alleged that the Christian arbitrator had overstepped the bounds of his authority and issued a substantively biased decision. Id. at 270.

Had the Fifth Circuit accepted these arguments, plaintiff would have had the basis to have her Christian arbitration award reviewed and possibly vacated. However, the Court refused to review the award and enforced its highly restricted scope of review of the case in light of the procedural language in the arbitration agreement. This decision demonstrates the high evidentiary standard that most states require in order to show that an arbitrator acted in such a manifestly biased manner so as to warrant the judicial review of an arbitration award.

Other plaintiffs challenging their termination of employment at a religious institution have asserted procedural challenges to religious arbitration.In Graves v. George Fox Univ., plaintiff attempted to challenge the arbitration award that upheld his termination on the basis that the award was unconscionable. Graves, at *5-6. The United States District Court in Idaho held that the award was not unconscionable because the plaintiff was given sufficient time to review the terms of his employment contract, which included the arbitration agreement in clear and easily locatable language. The court additionally held that the agreement to arbitrate was mutual and not one-sided as plaintiff alleged, noting,"adhesion contracts were a fact of modern life and not against public policy." Id. at 7.

In contrast, a New York lower court vacated an award issued by a Jewish arbitration panel on procedural grounds. Brisman v. Hebrew Academy of Five Towns and Rockaway, 887 N.Y.S.2d 414 at 919, rev'd, 895 N.Y.S.2d 482 (2010). The trial court found that: (1) the reinstated salary that Beit Din awarded plaintiff, a teacher fired from a Jewish day school, was irrational because it was double the salary he had previously received, (2) the Beit Din exceeded its powers by giving itself indefinite jurisdiction over the case and thereby violating CPLR § 7511, and (3) that the Beit Din had violated public policy by infringing the rights of private schools to make routine employment decisions. This remarkable decision not only reviewed the contested appeal but surmounted the strong juridical preference for arbitration by vacating the Beth Din's award. However, two years later, the Second Department of New York's Appellate Division reversed the trial court's order against the Beit Din of America's decision and affirmed the religious tribunal's original award. The $100,000 annual salary deemed irrationally high by the trial court was, in fact, rationally based since plaintiff's average annual compensation before his attempted termination had exceeded that amount. The Beit Din's extension of its jurisdiction had not invalidated its award because its jurisdiction was not entangled with the facts of the case. Finally, the Second Department held that the policy protecting tenured school faculty from getting fired not for cause exceeded other policy concerns mentioned by the lower court. In other words, the policy issues in Brisman were insufficient to trigger the public policy vacatur. The judicial treatment of the Brisman case shows not only how two benches applied the bases for vacating a religious arbitration award differently to same facts. The case ultimately represents the great, and arguably intractable, strength of the judicial preference to uphold arbitration.

A second case, Easterly v. Heritage Christian Schools, Inc.,sums up many salient points related to employment law and enforcing religious arbitration awards. 2009 WL 2750099, (S.D. Ind. 2009). In Easterly, a United States District Court held that the FAA reaches employment contracts and reminded plaintiffs of the Supreme Court's position that "mere inequality in bargaining power, however, is not a sufficient reason to hold that arbitration agreements are never enforceable in the employment context." Id. at FN 1 (quoting Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 33 (1991)). Plaintiff asserted that biblically based arbitration would be structurally and procedurally biased, but the court rejected her claim. First, because plaintiff did not explain precisely how the arbitration was unfair but primarily because of the judicial presumption that arbitration is fair. The court also rejected Easterly's contention that the agreement to arbitrate was unfair because of the arbitration high fees that could be imposed on her, again because the strong preference to favor arbitration agreements took precedence over prohibitive costs that might be imposed on a party under the agreement. The court explained and then denied each of plaintiff's arguments,recognizing the many challenges that employees may face when they have signed a religious arbitration agreement, while upholding the strong preference for arbitration. Easterly provides a recent example of the judiciary declining to vacate a religious arbitration's decision. However, the case importantly clarified the degree of unconscionability required at arbitration in order to qualify a dispute for judicial review.

B. Family Law

Plaintiffs also contest arbitration awards in family law disputes and claim similar procedural or substantive violations at arbitration. However, a key difference between employment law and family law is that the parties in a family law dispute are typically two individuals, often a divorcing couple, whereas one party in an employment dispute tends to be a corporation or organization. This element of interpersonal emotional strife combined with the gravity of legal decisions such as divisions of marital property and child custody arrangements make the personal stakes of a family law cases quite high.

Perhaps as a consequence of these high stakes, courts have clearly outlined certain legal issues that can never go before any arbitration panel - including a religious tribunal - and which must be decided by a civil court. In some states, such as New York, these include: child custody, child support, and guardianship proceedings. See, e.g., Glauber v. Glauber, 600 N.Y.S.2d 740 (N.Y. App. Div. 2d Dep't 1993); Hirsch v. Hirsch,774 N.Y.S.2d 48 (N.Y. App. Div. 2d Dep't 2004); In re Meisels,807 N.Y.S.2d 268, 271 (N.Y. Sup. Ct. 2005). Ample case law on family issues demonstrate the strong preference for upholding arbitration agreements with hints of judicial willingness to vacate those awards for policy reasons.

In Hirsch,an appellate court affirmed the vacation of an entire award awarded by a Beit Din. Hirsch, 4 A.D.3d at 451. The rabbinic council had allocated a sum of child support that the court deemed insufficient to support the couple's six children based on the husband's income and requirements of the Child Supports Standards Act. The lower court found and the appellate court affirmed that the Beit Din award had further violated public policy in both its inequitable distribution of assets to the husband and deprivation of the wife's constitutional right to seek protection by a secular court with its order to withdraw the pending criminal complaint against her husband. Id. at 452.In this case, judicial concerns over equity were significant enough to override a decision issued by a religious arbitral body.

In a similar case, a New York court vacated the child support award issued by a Beit Din because the award was not in the best interests of the children of a divorcing couple and thereby violated public policy. Rakoszynski v. Rakoszynski, 663 N.Y.S.2d 957, 960-61 (N.Y. Sup. Ct. 1997). Though the court was able to rectify an inequitable child support award through the public policy vacatur, the plaintiff in this case had waived her right to a civil proceeding by agreeing to arbitrate with a Beit Din, and arguably still received a less beneficial result under religious law than she might have had she initially brought the entire proceeding under civil law. Solutions to unsatisfactory outcomes like these could include anything from changing judicial guidelines and arbitration legislation in order to grant more permissive judicial review of contested arbitration awards to offering better education to the public on their legal rights. See Baker, at 1.

Civil courts have allowed plaintiff's to assert their concerns over inequitable decisions and policy violations in family law cases, even when to do means reviewing an arbitration proceeding. Where appropriate, courts have been able to vacate unfair arbitration awards.

IV. Problems And Solutions

Scholars argue that problems with the current standards of judicial review for arbitration awards run deep and require reform. Among the flaws that have been identified are: (1) judges' assumptions that their deference of religious arbitrations is wholly restricted by the First Amendment, (2) problematic judicial deference to religious law when aligned with the 'standard' notion of unfairness, and (3) that judges overlook the fact that parties are under duress when they agree to religious arbitration due to communal pressure exerted by their religious communities, mitigating the legitimacy of agreements to arbitrate in many circumstances. Baker, at 1.

Various solutions that would address these problems have been proposed. One means of reform advocates limiting the subject matter jurisdiction of religious panels. Religious tribunals would be barred from reviewing any case that could be handled by a secular court that applied neutral principles of law to decide the matter. In effect, all secularly based disputes, such as commercial cases, would be removed from religious arbitration panels. See Walter, at 552-53. Religious tribunals would no longer have the scope, latitude, and breadth it has now.

One more intellectual theory argues that it would be unconstitutional for religious tribunals to hear cases beyond those that deal with religious doctrine. Under this line of reasoning, religious arbitration is deemed violative of the disputant's constitutional right to freely practice his or her religion when it adjudicates an issue that is not religious in nature. Because decisions from religious arbitrations are binding, any given panel's award based on that particular religion's law would effectively trap the instant parties into that religion's legal reasoning. For example, if a Beth Din heard a contract dispute between two Jewish business orders and issued an arbitration award, that arbitration based on Jewish law would be binding and final on the parties. However, the Constitution also protects one's right to change religious beliefs under the Establishment Clause. In other words, if one of the parties from that Beth Din dispute later converted to Islam, he or she would be bound to an arbitration award predicated on a religion that the party no longer adhered to, which would violate that individual's constitutional rights. This theory portrays portrays those who change religious beliefs by converting or leaving religion as unfairly bound to a faith they no longer practice with no recourse to appeal. Id. at 549-50. A binding award from religious arbitration thereby traps the disputant and renders that religious arbitration unconstitutional. Secular law then must be applied to all non-religious disputes.

Ayelet Shachar, a professor of law at the University of Toronto and visiting professor at Harvard Law School, advocates a small-scale reform. She argues that re-framing the identities of parties to religious arbitration will usher much-needed changes and effectual her goal to promotemore equitable outcomes from religious arbitration in family law cases. Shachar notes that the current deference granted to religious awards by civil courts has yielded dangerous results in family law disputes where inequitable gender roles in traditional communities can result in uneven bargaining power between the parties. If women's multiple identifications with and commitments to their religious communities and governments were recognized, then reform would take place. Once it became "apparent that individuals and families should not be forced to choose between the rights of citizenship and group membership" and that instead the dispute resolution community recognized that women"should be afforded the opportunity to express their commitment to both" then Shachar argues that fairer arbitration proceedings would begin to take place. Shachar, at 573.

Other scholars are largely content with the status quo and do not advocate for major systemic reform. According to this view, the scope of religious arbitration and its review in civil court is well balanced. "[A]lthough courts note that religious panels present problems that conventional arbitrations do not, they have still enforced religious tribunal awards that do not confirm to FAA or UAA requirements as binding under the guise of "common law arbitration," or under case law that holds that arbitrations that do not meet statutory requirements can still be valid." Grossman, at 191. The proposal here advocates for the continued judicial review of religious questions and argues that, "judicial inquiry is not the equivalent of a civil determination of religious doctrine, which would be barred by the Establishment Clause's prohibition on advancing or endorsing religion." Grossman, at 207.

Michael Helfand, an associate Professor of Law at Pepperdine Law School, agrees that the overall system for judicial review of religious arbitration can be maintained, though he suggests that two changes in policy would be beneficial. Michael A. Helfand, Religious Arbitration and the New Multiculturalism: Negotiating Conflicting Legal Orders, 86 N.Y.U. L. REV. 1231, 1249 (2011). Helfand focuses on policy concerns from the perspective of new multiculturalism in his article on the judicial review of religious arbitration awards. See Helfand, at 1231. He suggests that the scope of enforceability of religious arbitration awards requires redefinition by civil courts. Id. He offers two policy recommendations: first, courts should limit application of public policy to vacate religious arbitration awards. Id. at 1231, 1232, 1238. Second, courts should expand application of the unconscionabilty doctrine to void religious arbitration agreements.

Others have sided with Helfand and contributed additional recommendations for how the current system could be improved. These critics highlight the dangers that religious arbitrations pose to vulnerable minorities such as women and children and suggest that these pitfalls could be mitigated if there was greater oversight of the system. The implementation of procedural safeguards would ensure that all parties agreed to religious arbitration under absolutely fair circumstances. Safeguards that have been suggested include (1) requiring religious tribunals to inform parties of their rights, such as alternative legal remedies from the court system, before entering arbitration, (2) encouraging governments to accept greater responsibility for legal education and (3) implementing stricter screening mechanisms for recognized religious arbitrators. Wolfe, at 468.

V. Analysis And Conclusions

Recent decisions from federal courts suggest that the current system for judicial review of religious arbitrations is sound and does not require large-scale reforms. An Indiana District Court in 2012 suggested that cases where the issues are not religious in nature or connected to the church entity any longer can come into the purview of the courts without violating the Constitution. McCarthy v. Fuller, 2012 WL 1898858, *1-3 (S. D. Ind. 2012). In this case, the Archbishop Secretary of a local Roman Catholic Church asked the court to take judicial notice of some facts in a dispute the Church was having with a woman who had previously been identified as a nun in the Church. The court held that a jury could determine whether defendant was, in fact, a Catholic nun without affecting the Catholic Church at all and thereby not entangle a civil judicial proceeding with a church's internal affairs. Id. This broad application of the neutral principles doctrine sanctioned a jury to hear issues that were not quite dogmatic or ritualistic in nature but undoubtedly connected to a church's internal operations. This suggests that judges can continue to review issues in a religiously arbitrated dispute if its religious content had somehow become less relevant. In light of the strict application of the neutral law doctrine in the past, this would be a significant departure from established precedent. Furthermore, the McCarthy holding analyzed in combination with the Fifth Circuit's holding in Prescott suggests that courts feel comfortable reviewing pertinent issues that arise out of religious arbitrations. While the constitutional arguments against judicial review of religious arbitrations are intellectually compelling, it applies to a narrow class of individuals who might theoretically convert or leave a religious community after using it to arbitrate a dispute. Therefore, until a court is presented with a case such as this, it seems impractical to alter presumptions based on hypotheticals.

Outcomes in cases like Rakoszynski illustrate the real effects of entering into arbitration agreements: once a party knowingly agrees to arbitrate, that party's rights to appeal the outcome from arbitration are significantly curtailed if not waived entirely. This plain and simple reality may result in outcomes that appear inequitable, but a large-scale overhaul of a system that does allow for judicial intervention in circumstances of gross inequity would be an overreaction to this problem, not a helpful solution. Instead, the optimal solutions to inequities presented by lower-income spouses in divorce proceedings or employees in employment disputes are increased rights education before arbitration ever starts. If legislation required religious tribunals to counsel prospective parties to arbitration of the ramifications to entering an arbitration agreement, perhaps fewer parties would be faced with a result that was neither satisfactory or eligible for appeal and judicial review.

Emily Belfer is a second-year student at the Benjamin N. Cardozo School of Law in New York City. She plans to practice Trusts and Estates upon graduating law school. Belfer earned a BA in European History at the University of Pennsylvania and a MA in Medieval Jewish History from Yeshiva University's Bernard Revel School of Jewish Studies. Deep thanks go to Professor Lela Love, David White, and Suzanne Stone as well as Yonatan Tammam and Brian Farkas for giving their editorial and other advice in regards to this article.

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