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First Page

120

Last Page

147

Document Type

Article

Abstract

Arguably, binding religious arbitration agreements are constitutionally problematic because they hinder freedom of religion: They inhibit parties’ ability to change their beliefs. However, religious arbitration agreements also offer an outlet for the religiously inclined to further practice their beliefs. This Article offers a middle ground: If a party to a religious arbitration agreement changes religion, he or she can claim a “conscientious objector” status if he or she can prove the agreement violates his or her sincerely held religious beliefs. Courts are allowed to inquire into the sincerity of a person’s religious beliefs. The religious question doctrine — which restricts courts ability to decide questions of religion — does not apply to sincerity determinations. Courts should view conscientious objectors with skepticism in order to promote the national policies in favor of arbitration, freedom of contract, and the prevention of fraud. Courts can strike the proper balance between these policies and freedom of religion by using similar standards to those found in military regulations regarding conscientious objectors. This Article’s primary focus is on how courts can use religious sincerity. However, it ends by noting a second example of how state of mind can help avoid tricky religious questions. Recently, a former member of the Church of Scientology tried to escape a religious arbitration agreement by arguing it was unconscionable because the arbitrators were scientologists and the church teaches that members should shun those that leave. The court refused to look at whether the church actually taught this. The former member should have argued the individual arbitrators were biased, instead of focusing on church teachings. This Article concludes the distinction between what parties or arbitrators believe — i.e., their state of mind — and what churches teach is a powerful tool.

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