I'm so tired of these people

[snoopy369]

In a sense it's just a normal contractual arbitration no different from, say, MLB salary arbitration, right? Two parties agree to be bound by the arbitration of a third party?

I wonder though how hard it would be to get out of a, say, Sharia court ruling. What sort of 'contract' binds you to their arbitration? If you get married 'under Sharia law' are you then bound by contract to their arbitration until they permit a divorce?

[Dauphin]

As said, additional to other requirements, religious courts (or other recognised bodies) in the UK are only legally binding in their judgement if participants voluntarily agree to be bound in advance.

[Dauphin]

If you get married 'under Sharia law' are you then bound by contract to their arbitration until they permit a divorce?

No I think. I can't recall the exact criteria for what you can and can't enforce someone to do, but remaining in a marriage is not enforceable in English law.

[Darius871]

In a sense it's just a normal contractual arbitration no different from, say, MLB salary arbitration, right? Two parties agree to be bound by the arbitration of a third party?

Precisely, and it's afforded the same degree of deference. The only significant exception is where there are externality considerations about others not bound by the contract, i.e. the court's parens patriae duty to ensure the best interests of a child. Specifically, 1) arbitration of child custody is per se invalid, 2) arbitration of child support must be shown to meet the bare-minimum statutory guidelines (as opposed to the usual presumptive deference with a burden of proof on the challenging party), and 3) arbitration of post-divorce property distribution is presumptively valid except insofar as it might need to be modified to ensure that custody/support modifications (if any) are financially viable.

But where children aren't involved, any religious arbitration provision is presumptively fair game unless shown to mandate a violation of law or shown to be a product of coercion, fraud, illegality, etc.

I wonder though how hard it would be to get out of a, say, Sharia court ruling. What sort of 'contract' binds you to their arbitration?

As Dauphin said, it's just a prior agreement to subject future disputes to a private arbitrator rather than the courts, just like the one you might see in the fine print of your credit card contract. Courts used to be hostile to this until the Federal Arbitration Act and state analogues explicitly reaffirmed their enforceability.

If you get married 'under Sharia law' are you then bound by contract to their arbitration until they permit a divorce?

No, certainly any contract that precludes your statutory right to file for civil divorce would itself be illegal, in both fault and no-fault states. However, the court would uphold and enforce arbitration of property & support issues (subject to the child-interest exceptions above), and furthermore any issues pertaining to religious divorce (as distinct from civil) would of course be left to arbitrators. For instance, the most devout Jews can't remarry without obtaining a "Get" religious divorce decree from a Beth Din that's supplemental to the civil divorce, and many secular court cases like Avitzur v. Avitzur have actually forced divorcees to appear before the Beth Din for Get proceedings because a prior arbitration contract agreed to make that appearance. Even if one of them has abandoned their faith and no longer recognizes any authority of the Beth Din, the court's answer would be the same: sorry, but you signed the contract.


If you're curious enough for a TLDR, below is the half-assed paper I made for a class in the fall (inspired by all the debate here at Poly ):

Religious Arbitration in Family Law – Past, Present, and Future

Earlier this year, a great deal of controversy developed in the United Kingdom after the Archbishop of Canterbury’s public comments that formal recognition of Sharia (Islamic) law “seemed unavoidable,” so it comes as no surprise that even greater furor has arisen from this summer’s revelations of British courts’ so-called “adoption” of Sharia (Islamic) law in divorce, contract, inheritance, and even domestic violence proceedings. While proponents raise the advantages of preserved marital relationships as well as conservation of judicial resources, a fierce opposition warns that women would frequently be unduly pressured into a dispute resolution mechanism known to overwhelmingly favor men both substantively and procedurally, and raised broader policy-level fears that “the fundamental principle of equal treatment for all – the bedrock of British justice – was being gravely undermined.”

Notwithstanding frequent misconceptions allayed below, this development in the United Kingdom, in addition to a similar uproar in Canada, has brought some speculation and even apprehension as to Sharia arbitration’s future in the United States. Are these apprehensions founded in light of actual developments in British and American law? This question raises rich issues paralleling the last half-century’s overall encouragement of alternative dispute resolution as well as liberalization of domestic relations law.

Up to the early twentieth century, the idea of private arbitration in even commercial contexts faced strong judicial hostility for a number of reasons, primarily fear that it might “oust the jurisdiction” of the courts and/or take advantage of inadequate supervision to disregard substantive law. This all changed primarily due to the Federal Arbitration Act (FAA) enacted in 1925, which essentially declared that any arbitration agreement “involving commerce” was “valid, irrevocable, and enforceable” except in circumstances which would invalidate any normal contract. As years passed the federal statute became more and more rigidly enforced, to the point of being found enforceable within state courts, being found such a strong “national policy favoring arbitration” that the Supremacy Clause precluded state legislatures from limiting it and the inability of states to “undercut” arbitration agreements is “now well-established,” and even making arbitration clauses “severable” from contracts to such an extent that the validity of a contract entirely void on its face (e.g. for blatant usury violations) must still be determined by an arbitrator.

The only significant limitation on the FAA is the need for a substantial effect on interstate commerce to invoke it, but this has been construed so broadly that even a construction contract between parties in one state for a project in the same state would fall within the FAA’s scope merely because some materials for the project had been in another state. As to the rare instances where interstate commerce is not substantially affected, it should be noted that the FAA’s strong policy was the model for Uniform Arbitration Act (UAA) which has been adopted in forty-nine states (and the more recent Revised Uniform Arbitration Act (RUAA) adopted in twelve states to date with many more expected), with the consequence of application to a far wider range of topics including family law. Indeed seven states have gone one step further from the UAA to enact statutes directed at matrimonial arbitration in particular. In addition to all of these state statutes, courts have generally construed their ability to interfere with any arbitrations very narrowly out of deference to public policy, to the point that they can question validity of the agreement to arbitrate in the first place, and can question validity of the final arbitral award in the presence of actual misconduct or manifest disregard of known law, but cannot vacate for mistakes of law.

Conflicting with public policy’s unequivocal embrace of private arbitration is the overarching theme in family law that the marriage contract has a unique relationship with the state, wholly distinct from commercial contracts. For centuries, courts have recognized the virtual truism reiterated by the U.S. Supreme Court in Maynard v. Hill that marriage is “more than a mere contract…it is an institution…the foundation of the family and of society, without which there would be neither civilization nor progress.” At least as far back as Aristotle, this special attitude toward the marriage contract has been based on the belief that the family is fundamentally important to society as a producer of responsible and productive citizens, a rudimentary specialization of labor, and an efficient distributor of mutual resources, among other things. As a result of this importance, the Uniform Marriage and Divorce Act (UMDA) not only distinguishes marriage as a “civil contract” but further requires that it be “contracted, maintained, invalidated, or dissolved only as provided by law,” and both the statutes and case law of all states maintain this interventionist approach pursuant to their broad constitutional police power to protect the public health, safety, morals, and welfare of the community. In addition to this approach to marriage and divorce, courts also maintain a “parens patriae” responsibility to ensure that dissolution terms comport with the best interests of any children involved.

Some relevant constitutional issues are also raised by the often contentious relationship between religious practices and the state’s role in marriage, probably first seen in the 19th century cases surrounding the centuries-old prohibition of bigamy. In the famous case of Reynolds v. U.S., the U.S. Supreme Court ultimately held that the constitutional prohibition of laws interfering with mere religious “belief and opinions” does not mean the state cannot regulate “practices,” particularly practices implicating the supremely important “civil contract” of marriage “on which the government of the people…rests.” Similarly, in Sharma v. Sharma a Hindu woman contested a divorce decree on the grounds that the consequent ostracism within her community constituted a violation of her right to Free Exercise of religion under the First Amendment. However, it was noted first by the court that religious conduct can be regulated where there is a “compelling state interest,” which would tend to include the fundamental institution of marriage, and then held that there was no infringement because only the “civil contract” was dissolved from the state’s perspective, whereas any “ecclesiastical” status of the marriage remained up to the parties.

Of particular interest in Sharma was its aside that to compel any party’s adherence to a religious standard constitutes a violation of the Establishment Clause of the First Amendment, which has been a thorny issue with respect to state enforcement of religious arbitrations. It was over a century ago in Watson v. Jones that the U.S. Supreme Court found a court’s consideration of religious doctrine in substantively deciding a case inconsistent with the Establishment Clause, and yet there has still remained a strong deference to decisions of private bodies charged with the authority to interpret religious doctrine, notwithstanding the contention that this constitutes “establishment” of an indirect nature. The U.S. Supreme Court in Jones v. Wolf also suggested an alternative approach where “neutral principles” of secular law could be used to uphold or overturn a religiously-derived agreement or arbitral decision without violating the Free Exercise or Establishment clauses, and in subsequent cases laws enforcing arbitration agreements have been considered just such “neutral principles.” Further, courts have even directly interpreted religious doctrine where for the extremely limited purpose of establishing whether there was sufficient intent and scope in an original agreement to arbitrate.

It was in this context, with a public policy strongly favoring arbitration complicated by the special nature of marriage and somewhat equivocal First Amendment jurisprudence, that cases concerning religious arbitration of family issues began coming to the fore. Perhaps the most famous was Avitzur v. Avitzur, which involved a written agreement called the “Ketubah,” signed on the date of marriage, whereby a husband and wife agreed to grant the “Beth Din” rabbinical body (plural Battei Din) the authority to summon one party at the other party’s request for the Beth Din’s counsel on compliance with Jewish tradition, and to impose terms of compensation for any failure to respond to its summons. After the husband had obtained a civil divorce, the wife was unable to remarry under Jewish law without a “Get” decree issued by the Beth Din after a hearing attended by both parties, and the husband refused to make this appearance. The wife sought declaratory judgment compelling the husband’s appearance on the theory that the Ketubah constituted a marital contract and was breached, and the husband’s motion to dismiss was denied because ordering the mere appearance to which he had contractually agreed would not entangle the court in any religious doctrine.

After a reversal by the intermediate Appellate Division because the civil divorce ended the “state interest” and left only an unenforceable “liturgical agreement,” the final Court of Appeals stressed that because enforcing the agreement did not require deciding any religious issues, it hardly differed from any antenuptial agreement providing for post-termination arbitration of disputes concerning marriage in a non-judicial forum, which “suffers no inherent invalidity.” However, while the Ketubah was “entitled to no less dignity than any other civil contract to submit a dispute to a nonjudicial forum,” the caveat was added that it must not violate state law or public policy. The husband’s First Amendment objection was easily resolved by application of the Wolf approach, relying on the “neutral principle” of enforcing a contractual promise to appear before arbitration, without regard to whether religious dogma induced assent to the contract or would determine the arbitral outcome. Ultimately, Avitzur’s deference to at least the requirement of appear before the Beth Din has become so ingrained that New York courts have since refused to grant preliminary injunctions against these proceedings on the ground that it interferes with Free Exercise, even where it is clear that it would be impossible to enforce of the eventual award (e.g. impermissible child custody decisions).

As significant and oft-cited as Avitzur may have been, it was limited to the question of whether mere appearance at religious arbitration can be compelled; cases actually addressing enforcement of the resulting arbitral awards are few, but they do generally adopt the same deference that the FAA, UAA, and related jurisprudence demand for normal arbitrations. In Lieberman v. Lieberman, for instance, a secular court’s pendente lite order and a Beth Din’s far less generous arbitral award were ironically issued on the same day, thus forcing the secular court to decide which order to vacate. The court’s opening point unequivocally reiterated the boilerplate rules barring the court from reviewing the substantive merits or procedural standards of an arbitration, and barring vacatur for mere mistakes of law or fact; this was stated without even mention of the Beth Din’s religious character, let alone a significant distinction. In fact, the wife openly argued that she only ever intended for the arbitration to pertain to a religious divorce, as opposed to the decisions on custody, child support, and residence disposition that it also made, but the court used secular interpretive principles from purely commercial arbitration cases to hold that the arbitration agreement’s explicit inclusion of “any and all disputes between the parties” drew in any issue with a “reasonable relationship” to divorce, which would of course include custody, child support, and residence disposition by definition. Per secular precedents, the court refused to vacate anything in the award not “totally irrational,” and because the Beth Din ruling dealt with all issues in the pendente lite order and was even strikingly similar in some respects, the wife did not even near the very high “totally irrational” burden. This surprisingly straightforward application of commercial arbitration precedents – the most important one involving two corporate beverage distributors of all things – to issues as traditionally state-oriented as division of community property, child custody, and support illustrates the substantial deference given by courts to religious arbitrations even in the family law context. In other cases enforcement has even been allowed despite a conceded non-compliance with the UAA’s procedural guidelines, and despite a conceded deficiency in an original arbitration agreement’s provisions on how the arbitration should be conducted.

That being said, there of course are significant limitations, such as the constitutional limitation described above as to directly deciding based on religious doctrine, as well as the aforementioned FAA/UAA provision that agreements to submit to arbitration can be invalidated by the same common law grounds that can invalidate any contract, such as fraud, unconscionability, etc. Of particular interest is the defense of duress, given the inevitable controversy over unequal treatment of women in some traditional religious doctrines. In Greenberg v. Greenberg, for instance, a wife agreed to submit “all issues” arising from divorce to the Beth Din, and pursuant to its final ruling, both parties signed formal releases of any and all claims they might have had against one another. The wife later sought spousal support in a secular court, alleging that the release was procured through duress because her failure to comply with the arbitral ruling would have caused the Beth Din to issue a “Siruv,” a sort of publication of the non-compliance that leads to ostracism within the community. Though the court conceded that the husband did have a pre-existing support obligation that would have been enforced but for the arbitration, it nonetheless upheld his release because the wife had agreed to it in writing pursuant to her private religious beliefs, and had suffered no more coercion than virtually anybody whose private bargain was partially or wholly induced by the desire for acceptance within a religious community.

Though the Greenberg court did not directly enforce an arbitral award per se, it had virtually the same effect indirectly by holding that the arbitrator’s mechanism of compulsion could not invalidate a “voluntary” divorce settlement on grounds of duress. It is also remarkable that even in Lieberman where there was “direct” enforcement of a Beth Din award, the court similarly held that a duress defense based on Siruv was unavailing. In Lieberman the different rationale was simply that undue pressure wasn’t included among secular precedents’ listed reasons to vacate an arbitral award, presumably because compliance with any arbitral award is already assumed to be compulsory by definition.

Nonetheless, Greenberg and Lieberman only dealt with whether a threat of Siruv by the Beth Din itself constituted duress; interestingly the rule is virtually opposite with respect to a husband’s threat to withhold a Get. Due largely to concerns that husbands might unfairly use this threat to coerce waiver of property and/or custody rights in secular divorce proceedings, in 1983 the New York legislature went one step beyond the Avitzur rule by mandating that anyone seeking civil dissolution of a religiously-solemnized marriage must take all steps necessary to remove religious barriers to the spouse’s remarriage. Though this was primarily concerned with inequitable distribution of property and custody, and applied as such in Get cases like Perl v. Perl, it was not long before cases like Golding v. Golding began to also invalidate agreements to arbitrate, and the awards based on them, due to the duress of a withheld Get.

[Darius871]

cont.

Perhaps the strongest and most common limitation on award enforcement is an exception for child custody and visitation, likely for the underlying reason that children are third parties having no privity with the arbitration agreement and are too young to enter into such contracts in any event. Even in a case like Lieberman permeated with “neutral principles” deference to arbitrators’ discretion, the court’s role as parens patriae remained paramount to the extent that custody was concerned. Based on secular precedents, the court agreed with the Plaintiff that “severe antagonism” between the parents made joint custody adverse to best interests the children, vacated that provision, and modified the timeframe for disposition of the marital home.

As interventionist as that approach may seem at first, the court in fact remained very deferential for four reasons. First, it still did not suggest that religious arbitrations of custody are per se reviewable or modifiable; the court made clear that no intervention would be warranted merely because an award provision “affects” the best interests of the child, and thus afforded substantial deference except in rare instances where an “adverse” effect is shown (emphasis in original). In other words, if a Beth Din’s custody award differed from that which a secular court would have ordered, but is not shown to be clearly adverse, it would have still been enforceable under the Lieberman approach. Secondly, the court stated its ability to render the arbitration agreement a “nullity” only “insofar as it concerns the children” (emphasis added), effectively making void provisions severable while still enforcing the remainder. Thirdly, the court’s willingness to evaluate best interests of the children regarding custody did not extend to child support payments in particular, because secular precedent had found that any dispute over them is “one between the custodial and non-custodial parent and can be agreed upon contractually or by arbitration.” A number of cases have held the same. Finally, the modification of the marital home’s disposition does not suggest that the court was generally free to re-evaluate arbitrations about marital property; rather, the change was strictly limited to reflecting the new custody arrangement, which would allow occupancy to the custodial parent per secular precedent.

Despite this high deference on the issue of custody arbitration, which was maintained for several decades, ultimately New York’s Appellate Division issued Glauber v. Glauber and Cohen v. Cohen on the very same day in 1993, holding that child custody and visitation were per se not arbitrable. This reaction was not so much a result of any peculiar factual situations as it was a simple policy reassertion that “the court's role as parens patriae must not be usurped” even by arbitratees’ reasonable expectation of finality. A Maryland case adopted the same bright-line rule that same year, and it has since been followed rigidly. Nonetheless, Glauber explicitly maintained the pre-existing deference to religious arbitration of child and spousal support. It was not until 1997 that arbitrability of child and spousal support was also called into question in Rakoszynski v. Rakoszynski, a decision almost entirely founded on strong public policy expressed by the legislature’s enactment of uniform child and spousal support guidelines in 1989. The case was very clear that it would not impose a per se rule like Glauber, however, and instead held that arbitral awards only “must demonstrate at least minimal recognition of, and compliance with” the guidelines; i.e. the courts could still not interfere with any arbitral award above that bare minimum. Despite these cases’ gradual contraction of deference, religious arbitrations pertaining to distribution of property still remained as enforceable as any valid commercial arbitration, “without further consideration.”

In light of this history surrounding Battei Din, as well as a much smaller body of case law applying the same “neutral principles” of arbitration law to similar “Christian conciliation” tribunals, a repeat of the U.K.’s Sharia controversy in the U.S. is not only likely but arguably inevitable, for several reasons. First, it should be noted that the U.K.’s arbitration statute is far more extensive and interventionist than the FAA or UAA, which would make religious arbitration less likely there than in the U.S., not more. Secondly, it must be stressed that the so-called “adoption” of Sharia law was in fact only a mischaracterization by critics blown out of proportion; to this day Lord Chief Justice Phillips, Justice Secretary Jack Straw, and other officials have repeatedly stated in no uncertain terms that British courts would enforce only Sharia arbitrations that do not openly violate British law, just as no commercial arbitrations are permitted to violate British law. When viewed in this sense, it is difficult to distinguish the U.K. approach from the deferential American approach of Lieberman and other cases; if anything, the U.K.’s requirement of prima facie consistency with British laws is less favorable to enforcement than the U.S.’ very high “totally irrational” or “manifest disregard” burdens needed to obtain vacatur. Finally, a key issue in the U.K. debate has been that refusal to enforce Sharia arbitrations would amount to preferential treatment toward Battei Din, which have enjoyed enforcement in the U.K. for over a century; the same discrimination argument would have even more currency in the U.S. given the Equal Protection Clause of the U.S. Constitution, to which there is no clear analogue in the U.K.

Ultimately, the reason that American arbitration jurisprudence has not yet grappled with Sharia likely has more to do with demographics than applicable law: just as the relative concentration of the American Jewish population in the New York City area explains why the notable Beth Din cases are almost entirely derived from New York, the fact that the there are five times as many Muslims in the U.K. than in the U.S. (per capita) – concentrated in a landmass fifty times smaller – explains why there is a relative paucity of Sharia-related jurisprudence in the U.S. Still, given Islam’s long history with arbitration dating back to the Quranic pronouncement in the context of marital disputes that “[i]f [Muslims] fear a breach between two people, [they should] appoint an arbitrator from his people and an arbitrator from her people,” and given that nonjudicial enforcement is limited to mere ostracism, it is only a matter of time before a party to such an arbitration files in secular courts to have it enforced. Any unbiased application of the principles above would generally enforce it, though any custody provisions would be automatically reevaluated to ensure compliance with the best interests of children, support provisions would be reviewed to a lesser extent for compliance with minimum statutory guidelines, and well-founded allegations of duress would be taken seriously. Whether or not lower courts would initially be so unbiased, however, must be left up to history.

Notes
Matthew Hickley, Islamic Sharia Courts in Britain are Now 'Legally Binding', DAILY MAIL ONLINE, Sep. 15, 2008, http://www.dailymail.co.U.K./news/ar...y-binding.html.
Abul Taher, Revealed: U.K.’s First Official Sharia Courts, THE TIMES ONLINE, Sep. 14, 2008, http://www.timesonline.co.U.K./tol/n...le4749183.ece; Chris Hastings, Sharia Rulings on Divorces and Disputes to be Rubber-Stamped by English Courts, THE DAILY TELEGRAPH, Oct. 26, 2008, http://www.telegraph.co.U.K./news/ne...sh-courts.html.
Hickley, supra note 1.
See Nicholas Pengelley, 9 VINDOBONA J. INT'L COM. L. & ARB. 111, 111-12 (2005) (citing Bourette, S., ‘Ontario allows sharia law’, Telegram, 15 August 2004, at p. A10; ‘Just one law for all Canadians', The Gazette, 24 August 2004, at p. A22; ‘Muslim tribunals must be in harmony with the Charter’, The Gazette, 30 August 2004, at p. A14; McNulty, J., ‘Canada's law must be secular’, The Ottawa Citizen, 3 September 2004, at p. A13; Saloojee, R., ‘How sharia law could work in Ontario’, Calgary Herald, 6 September 2004, at p. A11; Bagnall, J., ‘Religious law has no place in Canada’, The Gazette, 17 September 2004, at p. A21; Khouri, N., ‘Keep mosque and state separate’, National Post, 21 September 2004, at p. A17; Marcussen, E.-A., ‘Shariah law is a step towards Islamicizing Canada’, National Post, 24 September 2004, at p. A11; Pratt, S, ‘Muslim religious tribunal to settle family disputes a regressive step’, Edmonton Journal,26 September 2004, at p. A14.)
KulU.K.undis Shipping Co., S/A, v. Amtorg Trading Corporation, 126 F.2d 978, 983-985 (2nd Cir. 1942).
9 U.S.C.A. § 2 (West 2008).
Prima Paint Corp. v. Flood & Conklin Manufacturing Corp., 388 U.S. 395 (1967)
Southland Corp. v. Keating, 465 U.S. 1, 10-14 (1984).
Preston v. Ferrer, 128 S.Ct. 978, 983 (2008) (citing Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 272 (1995))
Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 445-447 (2006).
Brookfield R-III School Dist. v. Tognascioli Gross Jarvis Kautz Architects, Inc., 845 S.W.2d 103, 105 (Mo. App. 1993) (citing R.J. Palmer Constr. Co. v. Wichita Band Instrument Co., 642 P.2d 127, 131 (Kan. App. 1982); Northwest Mechanical, Inc. v. Public Utilities Comm'n, 283 N.W.2d 522, 523-24 (Minn. 1979)).
Lynn P. Burleson, Family Law Arbitration: Third Party Alternative Dispute Resolution, 30 CAMPBELL L. REV. 297, 297-298 (2008); See also Maureen A. Weston, Preserving the Federal Arbitration Act by Reining in Judicial Expansion and Mandatory Use, 8 NEV. L.J. 385, 388-389 (2007).
Lynn P. Burleson, Family Law Arbitration: Third Party Alternative Dispute Resolution, 30 CAMPBELL L. REV. 297, 297-298 (2008); See also Maureen A. Weston, Preserving the Federal Arbitration Act by Reining in Judicial Expansion and Mandatory Use, 8 NEV. L.J. 385, 388-389 (2007).
Brave New World of Arbitration, 31 Cap. U. L. Rev. 383, 400 (2003).
125 U.S. 190, 210-211 (1888).
See John Witte, Jr., The Goods and Goals Of Marriage, 76 NOTRE DAME L. REV. 1019, 1028-1029 (2001).
UMDA § 201 (West 2008).
Lieberman v. Lieberman, 566 N.Y.S.2d 490, 495 (N.Y. Sup. Ct. 1991).
Reynolds v. U.S., 98 U.S. 145, 165-166 (1878).
Sharma v. Sharma, 667 P.2d 395, 395 (Kan. App. 1983).
Id. at 396 (citing Sherbert v. Verner, 374 U.S. 398, 403 (1963); Reynolds v. United States, 98 U.S. 145 (1878)).
Id. at 396.
Id.
Watson v. Jones, 80 U.S. 679, 733-735 (1871).
Jones v. Wolf, 443 U.S. 595, 602 (1979) (citing Serbian Orthodox Diocese v. Milivojevich, 426 U.S. 696, 724-725 (1976)).
443 U.S. at 602-604.
Meisels v. Uhr, 547 N.Y.S.2d 502, 507-508 (N.Y. Sup. Ct. 1989) (reversed on other grounds); See also In re Marriage of Goldman, 554 N.E.2d 1016, 1022 (Ill. 1990).
Avitzur v. Avitzur, 58 N.Y.2d 108, 111-112 (N.Y. 1983).
Id.
Id. at 112-113.
Id. at 113-114.
Id. at 114 (citing Hirsch v. Hirsch, 37 N.Y.2d 312, 315 (N.Y. 1975).
Id. at 114-115 (citing Wolf, 443 U.S. at 602-603).
Ginnine Fried, The Collision of Church and State: A Primer to Beth Din Arbitration and the New York Secular Courts, 31 FORDHAM URB. L.J. 633, 653-654 (2004).
Lieberman, 566 N.Y.S.2d at 493.
Id. at 493.
Id. at 494.
Id.
Kovacs v. Kovacs, 633 A.2d 425, 432-433 (Md. App. 1993).
Bloch v. Bloch, 693 A.2d 364 (Md. App. 1997).
Greenberg v. Greenberg, 238 A.D.2d 420, 420-421 (N.Y. Sup. Ct. 1997).
Id.
Id.
Id.
Lieberman, 566 N.Y.S.2d 490 at 494.
Perl v. Perl, 126 A.D.2d 91, 94-95 (N.Y. Sup. Ct. 1987) (citing Domestic Relations Law § 253(2)(i)).
Id.
Golding v. Golding, 176 A.D.2d 20, 23-25 (N.Y. App. Div. 1992); See also Segal v. Segal, 650 A.2d 996, 1000 (N.J. Super. Ct. 1994); Fried, supra note 32, at 651-652 (summarizing unreported case “D. G. v. J. G.”).
Lieberman, 566 N.Y.S.2d at 495.
Id. (citing Bliss v. Ach, 56 N.Y.2d 995 (N.Y. 1982)); Braiman v. Braiman, 44 N.Y.2d 584 (N.Y. 1978); Trapp v. Trapp, 136 A.D.2d 178 (N.Y. 1988)).
Id. at 495.
Id.
Id. (citing Schneider v. Schneider, 17 N.Y.2d 123 (N.Y. 1966)).
See Hirsch v. Hirsch, 37 N.Y.2d 312, 315-316 (N.Y. 1975) (collecting cases: “Arbitration provisions … have been enforced as to the amount a husband must pay for the support of his wife, or wife and child, or child alone. Indeed, an agreement to arbitrate custody and visitation rights has been upheld.”)
Id. at 496 (citing Hillmann v. Hillmann, 109 A.D.2d 777 (1985); Damiano v. Damiano, 94 A.D.2d 132 (1983)).
See generally Sheets v. Sheets, 22 A.D.2d 176 (N.Y. App. Div. 1964); Miller v. Miller, 620 A.2d 1161 (Pa. Super. 1993).
Glauber v. Glauber, 192 A.D.2d 94 (1993); Cohen v. Cohen, 195 A.D.2d 586 (1993).
Glauber, 192 A.D.2d at 98.
Kovacs, 633 A.2d at 430-432.
See e.g. Stein v. Stein, 707 N.Y.S.2d 754 (N.Y. Sup. Ct. 1999); Rakoszynski v. Rakoszynski, 663 N.Y.S.2d 957 (N.Y. Sup. Ct. 1997).
Id. at 98-99.
663 N.Y.S.2d at 960.
Id. at 960-961; Accord Berg v. Berg, 20 Misc.3d 1142(A), Slip Copy, 2008 WL 4155652 (Table) (N.Y. Sup. Ct. 2008); Stein, 707 N.Y.S.2d at 758.
Kovacs, 633 A.2d at 432.
See e.g. Encore Productions, Inc. v. Promise Keepers, 53 F.Supp.2d 1101, 1112 (D. Colo. 1999) (“District courts have the power to enforce secular contract rights, despite the fact that one of the contracting parties may base their rights on religious affiliations.”); Cf. Miller v. Miller, 620 A.2d 1161 (Pa. Super. 1993) (finding Christian arbitration of child custody not per se void against public policy).
See Arbitration Act of 1996, Sections 42-45, 66-71, http://www.opsi.gov.U.K./Acts/acts19...19960023_en_7; Cf. 9 U.S.C.A. § 2 (West 2008); Preston, 128 S.Ct. at 983
Steve Doughty, Sharia Law Should be Used in Britain, Says U.K.’s Top Judge, DAILY MAIL ONLINE, July 4, 2008, http://www.dailymail.co.U.K./news/ar...K.s-judge.html ( “as long as punishments - and divorce rulings - complied with the law of the land.”); Richard Ford, Jack Straw Makes Clear Sharia Principles Subject to English Law, THE TIMES ONLINE, Oct. 31, 2008, http://business.timesonline.co.U.K./...cle5050838.ece (“provided they do not come into conflict with English law. There is no question about that. … English law will always remain supreme, and religious councils subservient to it.” ); Hastings, supra note 2 ("Anything that is decided under the Arbitration Act cannot run counter to the fundamental principles of English law."); Hickley, supra note 1 ("Sharia law is not part of the law of England and Wales, and the Government has no intention of making any change that would conflict with British laws and values. In all arbitrations, decisions will be enforceable by the English courts if the requirements of the 1996 Arbitration Act are satisfied. If any decisions by these Tribunals were illegal or contrary to public policy under English law, they would not be enforceable.").
Hickey, supra note 1 (“Muslim groups pointed out that Jewish Beth Din courts have handled civil legal cases for more than 100 years in Britain on a similar basis, and now operate under the 1996 Arbitration Act. Inayat Bunglawala of the Muslim Council of Britain, said: 'We support these tribunals. If the Jewish courts are allowed to flourish, so must the sharia ones.’”)
See “Metropolitan Areas With Largest Jewish Populations,” January 1, 2002, http://www.jafi.org.il/education/100...tables.html#10
See National Statistics Online, Religious Populations, Oct. 11, 2004, http://www.statistics.gov.uk/cci/nugget.asp?id=954; CIA Factbook, United States, Oct. 23, 2008, https://www.cia.gov/library/publicat...s.html#People; CIA Factbook, United Kingdom, Oct. 23, 2008, https://www.cia.gov/library/publicat...uk.html#People.
Quran 4:34.

[SpencerH]

Eh, which part of "provided they do not come into conflict with English law. There is no question about that. … English law will always remain supreme, and religious councils subservient to it,” “as long as punishments - and divorce rulings - complied with the law of the land," etc. don't you understand?

What part of "That may be true now but how long until they take the next step" dont you understand?

I hate to be the one to break it to you, but they are equally legal in the U.S. Courts have been deferentially rubber-stamping Beth Din arbitrations for decades, just like how the law routinely (and by firm statutory mandate) recognizes any secular arbitrations that don't blatantly violate positive law.

The only reason we haven't seen many publicized judicial enforcements of Sharia arbitrations is because demographically speaking the U.S. Muslim population is much smaller and more dispersed than that of the U.K., meaning there aren't dense enough Muslim communities for Sharia courts to emerge and thrive in the way that Beth Din courts have thrived in the NYC area's concentrated Jewish population, but legally speaking religious arbitrations are already presumed enforceable in this country. In fact, refusing to enforce a Sharia arbitration on the same terms with which we already enforce Beth Din and Christian conciliation decrees would violate the Equal Protection Clause.

Interesting, but I have no doubt that muslim women will be pressured into appearing in sharia courts in the UK. How often does that happen in Beth Din arbitrations do you think? In any case, while its clear that any two entitys can agree to arbitration based upon a set of rules (no matter how bizarre), I disagree with the concept of a seperate court system for any sub-population within a society, brit or american, jewish or muslim.

From the times online http://www.timesonline.co.uk/tol/new...cle4749183.ece

There are concerns that women who agree to go to tribunal courts are getting worse deals because Islamic law favours men.

Siddiqi said that in a recent inheritance dispute handled by the court in Nuneaton, the estate of a Midlands man was divided between three daughters and two sons.

The judges on the panel gave the sons twice as much as the daughters, in accordance with sharia. Had the family gone to a normal British court, the daughters would have got equal amounts.

In the six cases of domestic violence, Siddiqi said the judges ordered the husbands to take anger management classes and mentoring from community elders. There was no further punishment.

In each case, the women subsequently withdrew the complaints they had lodged with the police and the police stopped their investigations.

Siddiqi said that in the domestic violence cases, the advantage was that marriages were saved and couples given a second chance.

Inayat Bunglawala, assistant secretary-general of the Muslim Council of Britain, said: “The MCB supports these tribunals. If the Jewish courts are allowed to flourish, so must the sharia ones.”

[MikeH]

What part of "That may be true now but how long until they take the next step" dont you understand?

Answer to your question: we never will.

CASE CLOSED!

[RGBVideo]

I thought that the Sharia courts in Britain are prevented from making rulings that directly contradict English law?

They reverted the latter part in the first ruling which did contradict, around 2 months after the initial decision. Unsurprisingly, this wasn't reported among the news sources you read.

I remember this because I was about to make a thread about this in OTF, but then realized it would be a wasted effort.

[Arrian]

Post it, VJ. Apparently it's been hidden from me. Bring it to light.
I'm curious.

For the record, I agree with Spencer in that I don't like the idea of the concept of a seperate court system for any sub-population within a society, brit or american, jewish or muslim. I came to grudgingly accept the idea of the Brits doing this specifically b/c of the idea that these sharia courts would still have to respect English law (of course, my acceptance is neither asked for nor required by the Brits). If that is, in fact, untrue, I'd like to know.

-Arrian

[Blaupanzer]

Sub-court systems are are commonly accepted in the west to bring relief to the primary courts. This is not an override to the courts, but an adjunct. Labor courts and arbitrators fit this category too. The FEAR campaign of the past decade is over, Spencer. We are now looking at things practically, not in fear. These courts are useful when blocked of their Medieval excesses. English courts are exactly as likely to start meting out lashes of the whip as they are to permit English Sharia courts to do the same.

[Felch]

I'm not fearful of Sharia, but I am disgusted by it. It is a loathsome custom, and it does not deserve even the slightest respect in the West. Still, people have a right to submit to arbitration, so long as the arbitration is not contrary to the law.

[Darius871]

What part of "That may be true now but how long until they take the next step" dont you understand?

Sorry, I tend to ignore slippery slope fallacies in their entirety until I see some factual basis for them. If there is one, I'm all ears.

Interesting, but I have no doubt that muslim women will be pressured into appearing in sharia courts in the UK. How often does that happen in Beth Din arbitrations do you think?

Very often. First of all, as I mentioned to Arrian, secular American courts have compelled and continue to compel wives' appearance before the Beth Din Get proceedings on threat of jailtime for contempt. If that's not "pressure," I don't know what is. More pressure than Muslim women in America currently face, apparently, since there is no case law on Sharia. Secondly, even in the absence of an enforceable arbitration agreement, if a woman refuses to appear at a Beth Din proceeding and/or refuses to comply with its ruling, the Beth Din has a practice of issuing a "Siruv" publication informing the community of her defiance, leading them to ostracize her like a pariah. If that's not "pressure," I don't know what is.

If you're just talking about pure violence or threats thereof, well, that's present in every religious community to some extent. That's why ALL arbitration-enforcing courts, British and American, have a duress defense. For instance, some women have been able to get out of arbitration agreements because they were coerced into signing them, even by things like the husband threatening to withhold a Get (necessary for her to be able to remarry). If something that nonviolent can create a duress defense, certainly something along the lines of "he said he'd cut my hands off with a spoon and collapse a brick wall over me" would. Of course secular judges know to keep an eye out for things like that, and I see no evidence that this concern is any less vigorous in Britain.

In any case, while its clear that any two entitys can agree to arbitration based upon a set of rules (no matter how bizarre), I disagree with the concept of a seperate court system for any sub-population within a society, brit or american, jewish or muslim.

For the record, I agree with Spencer in that I don't like the idea of the concept of a seperate court system for any sub-population within a society

Quit calling it a separate court system, because you know that's not what it is. Not a single penny of public money goes to these organizations, nor does a single public case file get outsourced to them. It's merely the secular court's decision to recognize a private ADR process initiated by private contract absent fraud or duress, as they do for ANY ADR process.

Answer me this: are credit card companies, labor unions, construction contractors, real estate brokers, etc. not "sub-population[s] within a society?" Because in your characterization each of them has a "separate court system" that apparently must be thrown out with the bathwater too. Will you be consistent or not?

From the times online http://www.timesonline.co.uk/tol/new...cle4749183.ece

I'm not sure I see your point. Of course any Abrahamic religion's arbitration will likely (though not necessarily, since the facts are different in every case) favor men, since that's a doctrinal tendency of all three religions, Muslim, Jewish, or Christian. That's already a given. The question isn't whether there's a lopsided standard in those arbitrations, but whether the disadvantaged parties agreed to subject themselves to that standard pursuant to their own religious belief. If I find an arbitrator's rules patently unfair, I DON'T SIGN THE CONTRACT. Very simple.

[Arrian]

Quit calling it a separate court system, because you know that's not what it is. Not a single penny of public money goes to these organizations, nor does a single public case file get outsourced to them. It's merely the secular court's decision to recognize a private ADR process initiated by private contract absent fraud or duress, as they do for ANY ADR process.

To set this straight, Darius, I was clarifying my stance on something Spencer said. I did not intend to agree that these proceedings are really a separate court system.

The rest of my post, which you didn't quote, was intended to indicate that. An ADR process that is still subject to the Law of the Land is fine. VJ was claiming that in practice, it wasn't operating that way. I asked him to prove it.

-Arrian

[Darius871]

To set this straight, Darius, I was clarifying my stance on something Spencer said. I did not intend to agree that these proceedings are really a separate court system.

Relax, I was replying more to his quote immediately above yours; they were just juxtaposed as a common thread.