In Religious Arbitration, Scripture Is the Rule of Law

Nov 10, 2015

Cheri Spivey holds a photo of her son Nick Ellison, who died from taking drugs shortly after leaving Teen Challenge, a Christian substance abuse program.

Credit Mike Belleme for The New York Times

By MICHAEL CORKERY and JESSICA SILVER-GREENBERG

A few months before he took a toxic mix of drugs and died on a stranger’s couch, Nicklaus Ellison wrote a letter to his little sister.

He asked for Jolly Ranchers, Starburst and Silly Bandz bracelets, some of the treats permitted at the substance abuse program he attended in Florida. Then, almost as an aside, Mr. Ellison wrote about how the Christian-run program that was supposed to cure his drug and alcohol problem had instead “de-gayed” him.

“God makes all things new,” Mr. Ellison wrote in bright green ink. “The weirdest thing is how do I come out as straight after all this time?”

To his family and friends, Mr. Ellison’s professed identity change was just one of many clues that something had gone wrong at the program, Teen Challenge, where he had been sent by a judge as an alternative to jail.

But when his family sued Teen Challenge in 2012 hoping to uncover what had happened, they quickly hit a wall. When he was admitted to the program, at age 20, Mr. Ellison signed a contract that prevented him and his family from taking the Christian group to court.

Instead, his claim had to be resolved through a mediation or arbitration process that would be bound not by state or federal law, but by the Bible. “The Holy Scripture shall be the supreme authority,” the rules of the proceedings state.

For generations, religious tribunals have been used in the United States to settle family disputes and spiritual debates. But through arbitration, religion is being used to sort out secular problems like claims of financial fraud and wrongful death.

Customers who buy bamboo floors from Higuera Hardwoods in Washington State must take any dispute before a Christian arbitrator, according to the company’s website. Carolina Cabin Rentals, which rents high-end vacation properties in the Blue Ridge Mountains of North Carolina, tells its customers that disputes may be resolved according to biblical principles. The same goes for contestants in a fishing tournament in Hawaii.

Religious arbitration clauses, including the one used by Teen Challenge, have often proved impervious to legal challenges.

Scientology forbids its followers from associating with former members who have been declared “suppressive persons,” according to people who have left the church. But this year, a federal judge in Florida upheld a religious arbitration clause requiring Luis Garcia, a declared suppressive, to take his claim that the church had defrauded him of tens of thousands of dollars before a panel of Scientologists, instead of going to court.

Pamela Prescott battled for years to prove that she had been unjustly fired from a private school in Louisiana. The crux of her case — which wound through arbitration, a federal appeals court and state court — was references in her employment contract to verses from the Bible.

In legal circles, those cases, along with the Ellison suit, are considered seminal examples of how judges have consistently upheld religious arbitrations over secular objections. They also reflect a battle in the United States over religious freedom, a series of skirmishes that include a Kentucky clerk’s refusal to issue marriage licenses to same-sex couples and a Muslim woman’s being passed over for a job at Abercrombie & Fitch because she wore a head scarf.

More than anything, the cases show the power of arbitration clauses. An investigation by The New York Times found that companies have used the clauses to create an alternate system of justice. Americans are being forced out of court and into arbitration for everything from botched home renovations to medical malpractice.

By adding a religious component, companies are taking the privatization of justice a step further. Proponents of religious arbitration said the process allowed people of faith to work out problems using shared values, achieving not just a settlement but often reconciliation.

Yet some lawyers and plaintiffs said that for some groups, religious arbitration may have less to do with honoring a set of beliefs than with controlling legal outcomes. Some religious organizations stand by the process until they lose, at which point they turn to the secular courts to overturn faith-based judgments, according to interviews and court records.

“Religious arbitration, at its best, ensures that people can resolve their disputes in accordance with deeply held religious beliefs,” said Michael A. Helfand, an associate professor at Pepperdine University School of Law and an arbitrator in a rabbinical court in New York. “But both religious communities and courts need to make sure that the protections the law has put in place to make it a fair and unbiased process are actually implemented.”

Few courts have intervened, saying the terms of arbitration are detailed in binding contracts signed by both parties. Some judges are also reluctant to risk infringing the First Amendment rights of religious groups, according to a review of court decisions and interviews with lawyers.

Some plaintiffs counter that it is their First Amendment rights being infringed because they must unwillingly participate in what amounts to religious activity.

“I am being forced to go before a court run by a religion I no longer believe in,” said Mr. Garcia, the former Scientologist. “How could that happen?”


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29 comments on “In Religious Arbitration, Scripture Is the Rule of Law

  • Mr. Ellison may have signed the contract, but the article didn’t specifically state that his family had. They should still be able to sue in court for damages. I don’t see how he could sign away someone else’ legal rights.



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  • Not a lawyer so someone correct me if I’m wrong.

    Mr. Ellision was an adult and his signature was legally binding for him. You are correct that his family isn’t bound by that agreement, however they’d be suing on behalf of Mr. Ellison’s estate for the harm done to Mr. Ellison. Mr. Ellison’s estate is bound by the agreements Mr. Ellison made in life and thus must use the arbitration process Mr. Ellison agreed to.



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  • An investigation by The New York Times found that companies have used the clauses to create an alternate system of justice.

    All citizens are subject to the law, as enacted by a legal government authority, that is consistent with the constitution. You can’t exempt yourself from the law, by waver, such as signing these contracts. They are void, if they conflict with a law of the land or the constitution. You can’t sign a contract that you won’t sue if you are raped. Same principle.

    As religious scripture has no standing under the US constitution, it cannot be used in legal disputes.

    I expect there must be some precedent decisions by appeals courts that have brought America to this crazy situation, but if there have been, then in a democracy, it then falls to the appropriate legislature to enact laws that fix the defect in the law.

    When an aspect of a law is overturned by the High Court in Australia, the parliament with both parties in support, immediately enacted an amendment to repair the defect. The fact that this practice of referring to scripture is still in use in the USA, is more a commentary on how close the US is to becoming the United Theocracy of America. I would suggest an appropriate secular law body in the US pick a winnable case, and take it to the Supreme Court of America and get this practice outlawed.

    Imagine a situation where anyone could exempt themselves from a law of the land because it conflicts with their personal scripture. I think I might draft a new holy book where my god gives me a get out of jail free card for all or any of the actions I may choose to do till the end of the universe. Who wants to be in my religion.



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  • These binding arbitration agreements only apply with regards to civil law. You can’t say oh, you signed this binding arbitration agreement so you must resolve the rape of your child by our pedo priests via arbitration. That is a criminal matter. However, you can sign a contract that states that you will abide by the decision of a “neutral” arbitrator that the originator of the contract hires instead of suing in court over civil matters like wrongful firing or payment of back wages.



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  • I can only look through the eyes of an Australian and what we hear and read down under, like this article. I was appalled that this happened in a free democratic 2015 country.

    Workplace agreements, terms and conditions, are all negotiated within the framework of Australian law. Civil law in Australia has a Common Law basis, except where matters have been the subject of an act of parliament, like Workers Compensation for workplace injury, or actions as a result of vehicle accidents. At common law, religion has no part. The government also provides dispute resolution procedures where parties before a civil court can ask that the court appoint an independent arbitrator to try to negotiate a settlement. Again, religious cannon would have no place in any matter like this in Australia.

    The US has a strong infection of religion that is preventing it from keeping up with what are now considered civilized norms around the rest of the free world and at times, making it look particularly silly.



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  • David R Allen
    Nov 11, 2015 at 2:11 am

    As religious scripture has no standing under the US constitution, it cannot be used in legal disputes.

    Most religious scripture has no legal clarity or competence as written legislation.
    Using it is an “ink-blot-readers’ charter” which is even more open to bigotry and perverse subjective “interpretations”, than dodgy lawyers already use in relation to regular legal documents!

    What is extremely perverse in this system, is that a judge referred him to this organisation in the first place as part of a state legal sanction!



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  • Narcissistic_Martyr
    Nov 10, 2015 at 9:30 pm

    Mr. Ellision was an adult and his signature was legally binding for him.

    That is questionable given that the signature was obviously obtained under duress!

    @OP – Mr. Ellison’s professed identity change was just one of many clues that something had gone wrong at the program, Teen Challenge, where he had been sent by a judge as an alternative to jail.

    If he was required to sign up or go to jail, then quite clearly, this was not a contract entered into voluntarily. It was imposed by the state!

    If Xtian organisations are allowed to impose their terms on those referred to them by the state legal system, then Muslim organisations would be equally entitled to impose Sharia law on any referred to them!



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  • I’m no legal beagle, but my understanding about our basic principles of law in this land is that “if a legal right is accorded all citizens, such as the right to sue in a court of law, then that right CANNOT BE SIGNED AWAY” It is an inalienable right.



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  • 9
    fadeordraw says:

    I find this US practice very disturbing; indeed, one wonders if this Christian arbitration when your hardwood floors are faulty is accurate (we just had a new floor installed and I’m comfortable, in Ontario, that we’re covered if thing go wrong). For the sad story of Nicklaus Ellison, if he was sent to Teen Challenge “by a judge as an alternative to jail”, then his family must have had a poor lawyer in pursuing matters. I belief in any other Common Law country, the judge’s coercion would nullify any agreement Nicklaus entered into with Teen Challenge. Maybe the US aint a Common Law country!?. Maybe the article aint telling the whole story?



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  • David R Allen
    Nov 11, 2015 at 6:28 pm

    I think you’ve nailed it Alan. Good post. Maybe you missed a fine career as a QC at law, instead of a queer cuss in science.

    Ah well! Careers can sometimes pass by we old ‘uns, even if I have chaired a few organisations, committees, and panels, in my time, – but never mind – my daughter is an ambitious lawyer!



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  • I see this as Christian Sharia executed by the “Christian Taleban,” using a slight of hand through contract law. Oh technically it’s not compulsory, but the victim may not have good alternatives and little negotiating power.



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  • fadeordraw
    Nov 11, 2015 at 6:13 pm

    I find this US practice very disturbing; indeed, one wonders if this Christian arbitration when your hardwood floors are faulty is accurate (we just had a new floor installed and I’m comfortable, in Ontario, that we’re covered if thing go wrong).

    Quite a few years ago I had to sack some cowboy builders who were making a mess of an extension on my house. The contract (which I had used on the advice of my brother – a civil engineer) was a standard form from the Royal Institute of British Architects.
    It specified arbitration by a qualified architect pre-empting court action.
    The point of using this, was to avoid some cowboys with the gift of the gab impressing some techno-duffer judge, rather than trying to produce a credible case which would stand up to professional scrutiny by people who were familiar with specifications, materials, codes of practice, planning laws etc. !
    http://www.ribabookshops.com/topic/construction-contracts-and-forms-riba-jct-nec-icc-fidic-and-more/02/
    Religious arbitration makes the crass assumption, that bible -schooled religious leaders, have rational thinking processes, perceptions of evidence, or expertise, of any use in practical or legal matters!



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  • I suppose someone could declare on their dating website page, that anyone who had a dispute with their sexual behaviour had to submit to strict biblical rules where rape was mandatory. On a doctor could have a sign on the wall in Arabic that all disputes would be settled by Shar’ia.

    Arbitration requires both parties to agree to the rules. These folk are cheating and bluffing people into submission. You can’t just replace the law because you feel like it.

    The key is giving those that pull such stunts a ton of publicity to drive away business.



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  • On the subject of American judges imposing religiously based rulings on people this has just come to my attention.

    http://news.sky.com/story/1586370/judge-orders-baby-removed-from-lesbian-couple

    A judge in Utah orders a foster child to be removed from lesbian foster parents on the “basis” that children do better when raised by heterosexual couples. I have little doubt that at the root of this is not the evidence the judge supposedly based his decision on but some bat shit crazy religious beliefs, especially given that it’s Utah, one of the bat shit crazy religious states.

    I wonder what percentage of same sex couples have ever been convicted of child abuse or mistreatment compared to the percentage of heterosexual parents who have? I bet it’s vanishingly small given that same sex couples have to go to considerable lengths just to have a child and therefore probably want one more than anything in the world.



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  • Arkrid Sandwich
    Nov 12, 2015 at 11:38 am

    A judge in Utah orders a foster child to be removed from lesbian foster parents on the “basis” that children do better when raised by heterosexual couples. I have little doubt that at the root of this is not the evidence the judge supposedly based his decision on but some bat shit crazy religious beliefs, especially given that it’s Utah, one of the bat shit crazy religious states.

    It seems, even there this has provoked a backlash!

    http://uk24.work/news/judge-reverses-ruling-against-lesbian-parents
    Utah judge reverses order to take baby from lesbian couple
    dailymail (Yesterday) – A Utah judge reversed his decision to take a baby away from her lesbian foster parents and place her with a heterosexual couple after the ruling led to widespread backlash….



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  • Can somebody please explain something to me.

    From the OP:

    When he was admitted to the program, at age 20, Mr. Ellison signed a contract that prevented him and his family from taking the Christian group to court … his claim had to be resolved through a mediation or arbitration process that would [not] be bound … by state or federal law …

    How can this be?

    It is not possible for me to sign away my rights. In other words: I cannot sign a legally-binding contract in which I set aside my right to (just one example of many) equal treatment with regard to my race.

    It is perfectly possible that someone might draw up such a contract, and given the right incentives I might even be tempted to sign it. But my rights are inalienable – they remain my cogent and applicable rights – I cannot simply sign them away.

    Even if there is no aspect of a civil dispute that is covered by my other inalienable rights these cases are very odd. I must, surely, retain an inalienable right to a neutral jurisdiction?

    If a religious organization insists that I am contractually obliged to consider arbitration in their own tribunal first I can see no reason not to accept that rule – I did, after all, sign the agreement.

    However, if I discover that the said Tribunal fails to consider some evidence, suspect a judge or witness of undue bias, misapplied a doctrinal rule to cover a purely civil aspect of the case – or some other infringement of good, neutral, conduct – I fail to see how my inalienable right to a fair trial can be infringed upon. In other words: Why can I not appeal to a Civil Court, even though I accept that I previously agreed to a Non-court Tribunal?

    Providing a Civil Court is not being asked to rule on a point of religious doctrine (for which it would not be competent) a Civil Court that refuses to hear such a case is guilty of trampling wholesale on citizens’ rights, no?

    Peace.



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  • In capitalism contract is pretty sacred. I suspect that in American law it is particularly so; in the British common law countries it’s not quite as strong. For instance, correctly, pre nuptuals are not able to be enforced in UK, Ireland or Australia., but they are in the USA.

    It reminds me of Milo Minderbinder in Catch 22, who bombed his own airfield as he had a contract with the Germans. When he ordered his pilots to strafe, they were incredulous, but he just said “Sure, it’s in the contract,” and they did as they were ordered. It caused some trouble for him, until he opened his books and showed the profits he had made from the operation, then everyone was full of admiration.



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  • Stephen of Wimbledon
    Nov 14, 2015 at 10:58 am

    Can somebody please explain something to me.

    I don’t know about US law, but the English arbitration contract I mentioned earlier, required arbitration as a first action and could be taken to court later by dissatisfied parties.
    The courts however would be reluctant to overturn an arbiter’s ruling without good cause.
    https://www.richarddawkins.net/2015/11/in-religious-arbitration-scripture-is-the-rule-of-law/#li-comment-190053
    Usually it can be a requirement for the parties to agree on an arbiter from a qualified panel, or have one appointed by a professional body or organisation. (an architect, an engineer etc.)

    Or course, in the type of building dispute I quoted, the arbiter is supposed to be following the terms of the contract, and the relevant national law in force in that jurisdiction (including the laws which out-law unfair conditions).

    What these religious contracts are trying to do is make religious mediation a term of civil contract.
    This should be constitutionally unacceptable in the USA when legal state punishments are being applied.



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  • Customers should be wary of signing contracts which are drawn up by the company, or by trade associations funded by commercial interests.

    In UK law, certain types of clause excluding customer rights are illegal (hence cooling off periods after a hard sell, + entitlements from retailers to refund or replace defective goods etc.), and will be overturned by courts.



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  • Hi Alan,

    Thank you for your input.

    I would still like to hear from someone on the US perspective.

    Also, as I appear not to have been clear – for which I apologise – I think the practice of agreeing to dispute resolution through tribunal is generally a good one. I’m not asking about that.

    I’m asking how, if I understood the OP correctly, it seems possible in the US to sign away ones rights AND, how (same caveats) contract law can possibly undermine the right to a fair trial.

    Peace.



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  • Hi eejit,

    I agree with everything you said.

    I get it; contract agreements are very important and we’re all far too blasé about signing standard contracts and contract law.

    However, your comment only succeeds in repeating my question: Does contract law supersede a citizen’s rights, including constitutional rights? Because that’s what US Courts appear to be saying – according to the OP..

    If that’s true, then US citizens’ rights are worth diddly-squat.

    Peace.



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  • Stephen of Wimbledon
    Nov 14, 2015 at 1:21 pm

    I’m asking how, if I understood the OP correctly, it seems possible in the US to sign away ones rights AND, how (same caveats) contract law can possibly undermine the right to a fair trial.

    It appears to me that the relationship between arbitration by a fair minded independent expert, and arbitration by a religious leader, is analogous to the the difference between reasoned evidence based science, and the preconceptions of “faith-thinking” pseudo-science from the likes of Ham!

    We both know, that “biblical interpretations”, can come up with pretty well anything a reader wants to see!



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  • You’ld need a lawyer to answer that one, which I’m certainly not! In Europe each country has its own national courts, which are generally pretty independent, and overall is the European Court, which has shown itself to be very staunch in defending citizens’ rights; so I doubt if it will be possible for commercial treaties, contracts or American law, to prevail in this neck of the woods.

    Has the power of a contract to prevail over rights ever been tested in the US supreme court?



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  • In Religious Arbitration, Scripture Is the Rule of Law?

    It is in theocracies – at least insofar as its use via religious interpretation blinkers permit!
    “Thou shalt not give false witness” or perhaps suppress true witness and threaten whistle-blowers???

    http://www.bbc.co.uk/news/world-europe-34889540
    The Vatican has charged five people, including two journalists and a top priest or monsignor, over the leaking and publication of secret documents.

    The documents were cited in two books, by journalists Emiliano Fittipaldi and Gianluigi Nuzzi, alleging misspending and corruption at the Vatican.

    The journalists deny claims that they exerted pressure to obtain information.

    Two members of a papal commission advising on economic reform, and an assistant, were also charged.

    Monsignor Lucio Vallejo Balda, and his colleague on the commission, public relations expert Francesca Chaouqui, were arrested early in November.

    Viewpoint: Has the Church really changed?

    .The books, “Merchants in the Temple” by Mr Nuzzi and “Avarice” by Mr Fittipaldi, included details of alleged corruption, theft and uncontrolled spending in the Holy See.

    In a statement, the Vatican said magistrates “notified the accused and their lawyers of the charges filed… for the unlawful disclosure of information and confidential documents”.

    Ms Chaouqui was released shortly after her arrest after pledging to co-operate with authorities. Monsignor Balda remains in a Vatican cell.

    Both, along with assistant Nicola Maio, are accused of forming “a brotherhood of crime” and stealing documents, the Vatican said.

    The two journalists have been charged with exerting pressure to obtain the information.

    Mr Fittipaldi told local media he was “stunned” by the decision.

    “Maybe I’m naive but I believed they would investigate those I denounced for criminal activity, not the person that revealed the crimes,” he said.

    “I understand they are seriously embarrassed in the Vatican over the things in my book, especially because they could not deny any of it. But I didn’t expect a criminal trial.”

    Same old Vatican “morality”.
    Corruption is OK in secret, but causing embarrassment by exposing it, must be punished to preserve the the church’s false image as a source of morality!
    Hide the crime and attack the victims and whistle-blowers!

    with assistant Nicola Maio, are accused of forming “a brotherhood of crime”

    The whistle blowers are accused of “forming a brotherhood of crime by those hiding the corrupt criminals!!

    There are of course rumours of reforms – after the paedophile priest scandals, and the money laundering by the Vatican Bank scandals, – but rumours are just rumours for placating wish-thinkers!

    Reporters without Borders issued a statement saying the journalists had “just exercised their right to provide information in the public interest and should not be treated as criminals in a country that supposedly respects media freedom.”

    If convicted, all five could be jailed for up to eight years.



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  • Meanwhile:- As the whistle-blowers are prosecuted:-

    http://www.bbc.co.uk/news/world-europe-35104997
    The Vatican must “deliver real results” from its investigations into money-laundering, the Council of Europe’s financial agency has said.

    In its latest report, Moneyval said the Vatican had improved its financial management and its bank had shut down almost 5,000 suspicious accounts.

    Vatican prosecutors had frozen about €11m ($12m;£8m) and 29 money-laundering investigations had been launched.

    However, the agency said there had yet to be any indictments or prosecutions.

    It said there was “a need now for the anti-money-laundering and counter-terrorist financing system to deliver effective results in terms of prosecutions, convictions and confiscation”.

    Moneyval said “the Holy See/Vatican City authorities should ensure that the gendarmerie and the prosecutor’s office have the capacity to conduct proactive financial investigations” in order that current probes could produce results.

    The changes followed persistent allegations that the Vatican bank had been used by money launderers and businessmen taking advantage of the bank’s status – what amounted to an international offshore tax haven.

    Ah! Tax exemptions for the religious!



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