Negotiating Conflicting Legal Orders
By Michael A. Helfand
86 NYU Law Review (forthcoming 2011)
Multiculturalism has long served as a principle unifying various philosophical, political, and sociological programs that place a high value on culture and cultural groups.1 Yet within multiculturalism’s framework lies a recent trend towards a “new multiculturalism” which focuses not simply on principles of recognition and inclusion, but on broader principles of group autonomy and self-government.2 However, as the claims of new multiculturalism have evolved, so has there emerged a growing resistance to the possibility of ceding authority and autonomy to cultural groups. . . 3 4 5
Of course, for there to be a “new” multiculturalism, there must also be an “old” multiculturalism. The “old” multiculturalism largely focused on the recognition of previously marginalized minority groups as an essential feature of liberalism’s dedication to the principles of equal respect and equal dignity.6 . . .7
Thus, the great multicultural debates of the late 20th century—and even in the early 21st century—followed this same script, centering on such questions as minority representation in higher education,8 the constitutionality of prayer in public schools,9 the incorporation of religious views into public discourse,10 and permitting religious symbols on government property.11 In this way, the old multiculturalism focused on the importance of recognizing and integrating minority groups into the public sphere.
Increasingly, however, these debates are becoming secondary to a “new” multiculturalism. In the “new” multiculturalism, minority groups—especially religious minority groups—are less concerned with receiving recognition and more concerned with maintaining autonomy.12 Philosophically, the new multiculturalism conceives of minority identity as embodied not only in symbols and histories, but also in rules and practices that often constitute an independent legal order.13 And for minority communities to maintain their identity, they must also find a way to retain authority over the interpretation, application,and enforcement of communal rules within their membership.1415 16 17 18 19 Accordingly, the new multiculturalism looks less for symbolic integration and more for jurisdictional differentiation. Put differently, if in the past we debated multicultural dilemmas, we now find ourselves increasingly forced to navigate multilegal conflicts.
By contrast to the relative success of the old multiculturalism,20 the philosophy and politics of the new multiculturalism have not faired well.21 22 23 Indeed, the Supreme Court has met claims—from the free exercise claims of Native Americans24 to the associational claims of the Christian Legal Society25—with strong skepticism,largely unwilling to grant religious and cultural groups increased autonomy and self-governance rights.26
However, while public law has not embraced the new multiculturalism, private law most undoubtedly has. Indeed, for the better part of a century, courts have allowed minority groups —most notably religious groups—to piggyback on the arbitration system in order to legally enforce religious arbitration awards in U.S. courts.27 As a result . . . co-religionists can have their disputes resolved by religious authorities in accordance with religious law—and for that resolution to receive the binding force of U.S. law. In this way, religious arbitration courts serve as the quintessential institution of the new multiculturalism, providing religious groups with the law-like autonomy that has been withheld under public law.28 . . .29 30 31 32
However, the attack on religious arbitration has now reached the shores of the United States. This attack, which began with questions about the procedural safeguards in religious arbitration,33 has slowly morphed into a national movement unwilling to cede any sort of jurisdictional authority to religious tribunals.34 . . .35 36 37 38 39 40 41 42
It is, of course, far from surprising that attempts to formally introduce religious arbitration33 into state legal systems have met with such ferocious resistance. Religious arbitration courts are perceived as challenging the nation-state’s status as the exclusive source of legitimate law.43 . . .
This article poses the following question: when should courts enforce the awards of religious arbitration tribunals adjudicating disputes in accordance with religious law? At the heart of this question is a debate over whether the trend towards the new multiculturalism—emphasizing the need of communities to secure some degree of autonomy and selfgovernance—can be embodied in concrete institutions without threatening fundamental individual liberties. In line with recent scholarship emphasizing the importance of First Amendment institutions,44 this article argues that religious arbitration courts serve the freedom-enhancing role of the new multiculturalism by providing religionists with a forum to adjudicate disputes in accordance with their own religious beliefs and practices. In this way, religious arbitration courts “contribute to . . . the reality of religious freedom under the law” by serving as part of the infrastructure that makes religious freedom possible.45
Michael A. Helfand , JD, PhD, associate professor of law and associate director of the Diane and Guilford Glazer Institute for Jewish Studies, has worked extensively on the intersection of group rights and the law, including religious arbitration, Equal Protection Clause jurisprudence, and political theories of toleration. After completing his JD and PhD (in political science) from Yale and practicing in the area of complex commercial litigation with Davis, Polk & Wardwell, Helfand joined the Pepperdine faculty in 2010. He believes the issue addressed in this article is important today because, in contrast to more extreme views, arbitration law can serve both as a tool to promote religious institutions while still protecting the most vulnerable members of our society.
Reprinted with permission of the NYU Law Review.
10 See John Rawls, The Idea of Public Reason Revisited, 64 U. Chi. L. Rev. 765, 783-84 (1997). For a selection of responses to Rawls, see Andrew R. Murphy, Rawls and a Shrinking Liberty of Conscience, 60 Rev. Pol. 247 (1998); Robert Audi, Religious Values, Political Action, and Civic Discourse, 75 Ind. L.J. 273 (2000); Jeremy Waldron, Religious Contribution in Public Deliberation, 30 San Diego L. REV. 817 (1993).
13 See, e.g., Mark L. Movsesian, Fiqh and Canons: Reflections on Islamic and Christian Jurisprudence, 40 Seton Hall L. Rev. 861, 866 (2010); Michael A. Helfand, When Religious Practices Become Legal Obligations: Extending the Foreign Compulsion Defense, 23 J.L. & Religion 535 (2008); Chaim Saiman, Jesus’ Legal Theory: A Rabbinic Interpretation, 23 J.L. Religion 97 (2007).
14 See, e.g., Aylet Shachar, Multicultural Jurisdictions: Cultural Differences and Women’s Rights (2001); Ayelet Shachar, Faith in Law? Diffusing Tensions Between Diversity and Equality, 36 PHIL. & SOC. CRITICISM 395 (2010).
15 The existence of overlapping and multiple legal communities is one of the key insights of the legal pluralism literature. See, e.g., Nomi Maya Stolzenberg, and David N. Myers, Community, Constitution, and Culture: The Case of the Jewish Kehilah, 25 U. Mich. J. L. Reform 633, 636-40 (1992); Robert M. Cover, Violence and the Word, 95 Yale L.J. 1601 (1986); John Griffiths, What is Legal Pluralism, 1 J. Leg. Pluralism 1 (1986); Robert M. Cover, Nomos and Narrative, 97 Harv. L. Rev. 4 (1983); Marc Galanter, Justice in Many Rooms: Courts, Private Ordering, and Indigenous Law, 19 J. Pluralsim & Unofficial L. 1 (1981).
33 See, e.g., Michael C. Grossman, Note, Is This Arbitration? Religious Tribunals, Judicial Review, and Due Process, 107 Colum. L. Rev. 169 (2007); 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 (2006).
34 See Marc Abinder, Oklahoma’s Preemptive Strike Against Sharia Law (Oct. 12, 2010), available at http://www.theatlantic.com/politics/archive/2010/10/oklahomas-preemptive-strike- against-sharia-law/65081/ (predicting that “[i]f this initiative over-performs in November, look for a potential wave of ‘preemptive strikes’ against Sharia law in the years ahead”); Bill Raftery, An Examination of 2011 Sharia Law and International Law Bans Before State Legislatures, Gavel to Gavel (Jan. 27, 2011) at http://gaveltogavel.us/site/2011/01/27/an-examination-of-2011- sharia-law-international-law-bans-before-state-legislatures/.
43 See, e.g., Sense About Sharia: Islamic Law and Democracy, The Economist, Oct. 16, 2010, available at http://www.economist.com/node/17251830?story_id=17251830; Whose Law Counts Most: Sharia in the West, The Economist, Oct. 16, 2010, available at http://www.economist.com/node/17249634?story_id=17249634; Stanley Fish, Serving Two Masters: Shariah Law and the Secular State (Oct. 25, 2010), http://opinionator.blogs.nytimes.com/2010/10/25/serving-two-masters-shariah-law-and-the- secular-state/.