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Orthodox Jewish Arbitrations, Islamic Arbitrations, and Discrimination Against Witnesses Based on Sex or Religion
Eugene Volokh • October 21, 2010 6:05 pm
I’ve at times blogged about the propriety of letting people agree to Islamic binding arbitration (by private Islamic arbitration panels) of their disputes, just as they can agree to Christian or Jewish arbitration, and just as they can agree to secular arbitration. (See, for instance, this post.) This agreement could take place either before a dispute arises (for instance, as part of a contract entered into at the time a business deal or a marriage takes place), or once a dispute arises.
Such arbitration decisions are generally enforceable, unless they are contrary to particular important public policies. Naturally, for instance, an arbitral decree ordering that one party be stoned to death or have his hand chopped off wouldn’t be enforced. As I understand it in many states arbitration decisions related to child custody wouldn’t be enforced, either (because such an arbitration would purport to resolve the rights of non-parties to the arbitration agreement, namely the children). But arbitration decisions in ordinary commercial disputes, church employment disputes, disputes about property settlement in a divorce, and the like would largely be enforceable. That’s already done for Christian and Jewish arbitration; under American law, it should equally be so as to Islamic arbitration.
But there is one potential difficulty, I think, and it’s one that potentially applies to Orthodox Jewish arbitrations as well as to Islamic arbitrations: The application of procedural rules that discriminate against witnesses based on their sex, religion, or ethnicity. As I understand it, Orthodox Jewish decisionmaking bodies (beth dins) tend to disallow testimony by women in at least some situations. (See, e.g., this account.) I am told that they also tend to disallow testimony by non-Jews in at least some situations; this would constitute either religious or ethnic discrimination (and quite likely ethnic discrimination, to the extent that irreligious people would still be able to testify because of their Jewish heritage down the maternal line). As I understand it, some Islamic decisionmaking bodies tend to apply rules that at least devalue women’s testimony in at least some situations.
Now in principle such practices could be permitted, on the theory that parties should be free to contract for arbitration under whatever procedural rules they prefer, including discriminatory ones. But my understanding is that arbitration law does not take this view; rather, to quote Betz v. Pankow, 16 Cal. App. 4th 919 (1993), the rule is that,
All litigants are entitled to a decision free from arbitrary considerations of race, gender, etc., and although arbitrators enjoy considerable latitude in the resolution of both factual and legal issues, they are under the same duty as judicial officers to render decisions free from any influence or consideration of the race, ethnic origin or gender of the parties.
I would assume that this would extend to barring such discrimination against witnesses as well — especially when a person is both a party and a witness — and to barring discrimination based on religion, too. This might be an obstacle to the enforcement of Jewish and Islamic arbitration awards, at least so long as some of the witnesses were women (or non-Jews or others who are treated differently as witnesses based on religion or ethnicity). At the same time, my quick searches have not found any cases in which such an objection was actually raised.
But before going further in opining on this, I thought I’d ask some questions of those of our readers who actually have experience with religious arbitrations — as arbitrators (e.g., beth din judges), lawyers, or knowledgeable parties:
1. To your knowledge, do most Orthodox Jewish (and, I’m told, some Conservative Jewish) beth dins indeed apply rules that in some measure limit or exclude the testimony of women? (I realize that the admissibility rules vary by topic, and that the testimony of women is not categorically excluded in all cases; my question is whether it’s excluded or limited in some cases.)
2. Are you aware of any limitations on the enforceability of arbitration decisions in which such procedural rules were applied?
3. Do beth dins or similar tribunals ever state that they are deliberately suspending the operation of such discriminatory procedural rules, precisely to make sure that their decisions are not subject to challenge in civil court?
4. If such tribunals do make such a statement, is that statement generally believed by the civil courts, or do civil courts suspect that a tribunal that normally applies discriminatory procedural rules will continue to apply them no matter what its formal announcement might say?
UPDATE: Commenter David Schwartz offers a different approach:
Betz v. Pankow dealt with an issue where there were accusations of gender bias that neither party had expected or consented to. It didn’t address the question of whether litigants could consent to a procedure that would include gender bias, at least not directly.
“Although appellant and amici curiae argue forcefully against gender bias, we emphasize that this appeal is not about whether gender bias is a valid ground for vacating the award. Respondent agrees that decisions biased by discriminatory considerations of race, ethnicity or gender are not tolerated by the adjudicatory process, whether in the courts or in alternative forums for dispute resolution.”
One is not a victim of what one has consented to.
This is an interesting argument — that discriminatory rules known to the parties may be enforced, and that what is forbidden is the arbitrator’s unforeseeable personal discriminatory preference — and as I mentioned in the text I sympathize with this sort of consent-of-the-parties argument. But as I read the Betz decision, it is making an assertion about unwaivable policies of the judicial system, not just about rights that parties could waive if they so agree (much as they routinely waive the right to trial by jury and the like as part of the arbitration process). At the same time, I can’t claim any great expertise in this area, and I’d love to hear more from people who are indeed experienced with it.