What’s Wrong? Advisory Board Member John Corvino and his colleague Katherine Kim offer an insightful analysis of some important issues covered in a recent New York Times story about religious arbitration.

Religious Arbitration and Moral Agency

A 20-year-old gay man with a substance abuse problem is given a choice between a year in jail or a faith-based rehabilitation program called Teen Challenge, which promises “freedom through discipleship.” Not surprisingly, he chooses the rehab program. While he’s there, his mother receives a phone call telling her that he’s being taken to the hospital; hours later, he is found dead on a stranger’s couch.



When the mother tries to discover what happened, Teen Challenge stonewalls her. The family decides that only a lawsuit will uncover the truth: Who took him to the hospital, and why was there no record of his being there? What kind of pressure was the Christian rehab program using to get him to renounce his gayness? But Nicklaus Ellison’s family cannot sue, because Teen Challenge mandates that all enrollees sign a contract stating that any dispute must go to “Christian conciliation” and be resolved in accordance with Biblical teaching.

The case is one of several detailed in a recent New York Times story about religious arbitration, part of a series about how arbitration clauses are depriving many Americans of their proverbial day in court. But faith-based arbitration looks especially problematic: Many of the standard concerns regarding arbitration—pressure to accept the clauses, legally unskilled arbiters, and lack of transparency in the process—seem to apply with greater force in religious contexts, where those with privileged access to an inner sanctum claim divine authority. Besides, in a free nation that constitutionally prohibits establishment of religion, how can we allow the substitution of God’s law for man’s law?

We argue that the latter concern is misplaced. An important feature of liberal (i.e. free) states is to protect citizens’ moral agency, allowing them to align their actions with their moral convictions. Many citizens base their moral convictions on their religious beliefs. For these citizens, religious arbitration may provide an important opportunity to resolve disputes in accordance with shared values.

Whether Nick Ellison shared the values of Teen Challenge is unclear: According to his family, the openly gay youth was a committed Christian, but never comfortable in church. But the real problem in his case is one of coercion: His consent to the arbitration clause was not sufficiently voluntary.

Voluntariness comes in degrees, and it requires several conditions, both internal (being rational and informed) and external (lack of coercion or force). Coercion may consist not only in physical threats, such as putting a gun to someone’s head, but also in limiting another’s options by leaving no viable alternative. Teen Challenge had an unequal bargaining advantage over Mr. Ellison, who was not in a position to negotiate the terms of a contract that would bind not only him but also, eventually, his bereaved family. The judge who sentenced Mr. Ellison should have given him a rehab option without a mandatory religious arbitration clause.

Contrast this case with another discussed in the Times piece, that of Luis Garcia, who claims to have given over $2.3 million to the Church of Scientology for courses, fees, and donations. As a member of the church, Mr. Garcia had signed off on two dozen arbitration clauses, requiring him to settle any disputes before a panel of fellow Scientologists. Unlike Mr. Ellison, he signed these as a mature adult without the looming specter of jail time. It was only later, when he suspected that he was being defrauded, that he abandoned his faith; he has since been excommunicated as a “suppressive.”

One might view Mr. Garcia’s case as nothing more than a (very expensive) case of buyer’s remorse: Like a tenant who regrets having signed a lease once he realizes that he could have found a comparable apartment much cheaper, Mr. Garcia bound himself to a contract that he now regrets. But there’s more to the case than that. Unlike the remorseful tenant, Mr. Garcia is not merely someone who has discovered better means to his desired ends. Instead, his fundamental moral beliefs have changed. As he puts it: “I am being forced to go before a court run by a religion I no longer believe in. How could that happen?”

By becoming a party to religious arbitration, Mr. Garcia would have to participate in activities that conflict with his core beliefs and values, possibly including prayer. His moral agency – the capacity to conform his conduct to his own moral convictions – is thereby threatened. This is a worry for a liberal state that aims to facilitate integrity between citizens’ actions and their moral convictions by designing institutions and laws that minimize conflicts between them. And it should be a worry for advocates of religious arbitration, a major rationale for which is promotion of such integrity.

Whether the courts should interfere in Mr. Garcia’s case depends in part on whether the state’s interest in protecting moral agency outweighs its interest in enforcing arbitration clauses. Recent debates about religious exemptions are relevant: Clearly, the arbitration activities would burden Mr. Garcia’s conscience. One important difference is that, unlike a Christian clerk who refuses to issue marriage licenses to same-sex couples, or a Muslim flight attendant who refuses to serve alcohol, Mr. Garcia can’t resolve his conflict by finding another job (or court): There are no non-religious resolution options open to him. Perhaps a closer analogy would be that of soldiers who become pacifists while on military duty: Should they remain bound by contract, or be exempted?

Another wrinkle in this case: Because the Church of Scientology has excommunicated Mr. Garcia as a “suppressive,” it is unclear whether he can receive an unbiased hearing. A Federal District Court judge acknowledged that concern but argued on First Amendment grounds that he was barred from considering it: “It necessarily would require an analysis and interpretation of Scientology doctrine,” the judge wrote, which would constitute “a prohibited intrusion into religious doctrine.” But while the doctrinal features of the process are beyond the court’s purview, the question of bias should not be. Otherwise, religious organizations could use the First Amendment as blanket shield for unjust behavior, in arbitration proceedings and elsewhere.

Of course, traditional religious believers may reject the liberal conception of moral agency. Nevertheless, they still have a reason to exempt non-religious persons from religious arbitration. Spiritual reconciliation and the forgiveness of sin, which are common goals of religious arbitration, can happen only if both parties accept the grace of God. Therefore, from both liberal and traditional religious perspectives, there is strong justification for the view that non-believers should be excluded from religious arbitration.

Liberal states protect voluntary actions in order to enhance moral agency. The courts should never have put Mr. Ellison in a position where his only viable option bound him to religious arbitration, and they should scrutinize cases like Mr. Garcia’s more carefully. The main problem is not the substitution of God’s law for man’s law: It is the substitution of coercion for conscience.

Katherine Kim and John Corvino are philosophy professors at Wayne State University in Detroit.