united-states oregon arbitration alternative-dispute-resolution
Could a contract make a Bible passage legally binding on the signers?
<p>Suppose John Doe and James Smith, who are both Christians and members of the same church, sign a contract including the following clause:</p>
<blockquote>
<p>Any disputes between John Doe and James Smith shall be resolved in accordance with the Bible text of Matthew 18:15-17 as translated in the King James Version.</p>
</blockquote>
<p>Matthew 18:15-17 says:</p>
<blockquote>
<p>Moreover if thy brother shall trespass against thee, go and tell him his fault between thee and him alone: if he shall hear thee, thou hast gained thy brother. But if he will not hear thee, then take with thee one or two more, that in the mouth of two or three witnesses every word may be established.  And if he shall neglect to hear them, tell it unto the church: but if he neglect to hear the church, let him be unto thee as an heathen man and a publican.”</p>
</blockquote>
<p>Would this have any legal significance? If I understand correctly, it would make the church an arbitrator. Is that right?</p>

<p>If Doe and Smith agree with your position that the church will be the arbitrator, they should go unto the church and get their problem resolved, which is in itself significant. If one of them rejects that interpretation, it is possible that one of them will sue in regular court to get the matter resolved. If neither of them accepts that interpretation, that clause will not be part of the legal argument that the court decides on. The court will only touch on this passage if exactly one of the parties agrees with the passage and makes it part of his argument.</p>
<p>Then that person will have the burden of arguing that a certain outcome is mandated by the agreement – for example &quot;this is a binding arbitration clause, you must let The Church decide&quot;. The courts will have to consider the evidence that this is indeed what the parties agreed to. It then depends on the evidence that the two sides offer for their positions, as to their respective understandings of the contract language. A preponderance of evidence could favor the interpretation that you offer, but that is a fact-intensive question of Biblical interpretation, and not a legal one.</p>

<h2>You can contract whatever you like</h2>
<p>As a dispute resolution clause it seems a bit unclear, particularly since I’m not sure what treating someone as a “Heathen man and a publican”. Since my local publican is a Hindu, I guess that means treat him the same way I always have, have a chat and pay for the beers.</p>
<p>Notwithstanding, there is clearly a cascading ADR going on here:</p>
<ol>
<li>Negotiate,</li>
<li>Negotiate with witnesses,</li>
<li>Have the church do … something?</li>
</ol>
<p>The problem here is the clause isn’t clear as to the role of the church. You say they will act as arbitrator but it’s equally arguable that they will be a mediator or conciliator. If the parties don’t agree on what the church is going to do then the last part is likely to be void for uncertainty.</p>
<p>Putting that aside, the structure seems such that a court is likely to refuse to hear a case until the parties have at least tried and failed to comply with the clause. A dispute resolution clause <em>can</em> have an ADR as a binding resolution (i.e. excluding the court altogether) but this one doesn’t do that. However, if there is such a clause, it must be complied with before going to court.</p>

<h3>Similar Agreements Have Been Upheld</h3>
<p>The most commonly-cited case is <a href="https://www.casemine.com/judgement/us/5914bb01add7b0493479434e" rel="nofollow noreferrer"><em>Encore Productions, Inc. v. Promise Keepers</em>, (D. Colo 1999)</a>  In this case, a federal district judge held that the following arbitration clause was legally enforceable:</p>
<blockquote>
<p>Any claim or dispute arising from or related to this Agreement shall be settled by mediation and, if necessary, legally binding arbitration, in accordance with the Rules of Procedure for Christian Conciliation of the Institute for Christian Conciliation. Such arbitration shall be held in Colorado unless otherwise agreed by both parties. Judgment upon an arbitration award may be entered in any court otherwise having jurisdiction.</p>
</blockquote>
<p>Crucially, this provision is much more specific about who is to arbitrate and under what process.  The agreement also had a choice-of-law clause that bound the arbitrator to reach a decision consistent with Colorado law.</p>
<p>In this ruling, the judge addresses the issue of how a secular court might be put in the position of ruling on theological issues:</p>
<blockquote>
<p>A court can, and should, apply neutral principles of law to determine disputed questions that do not implicate religious doctrine. Jones v. Wolf, 443 U.S. 595, 99 S.Ct. 3020, 61 L.Ed.2d 775 (1979). &quot;Neutral principles&quot; are secular legal rules whose application to religious parties or disputes do not entail theological or religious evaluations. See id. I recognize that I must diligently avoid impermissible First Amendment entanglement. However, by employing neutral principles, courts can review decisions of religious bodies within permissible constitutional boundaries. See <em>id.</em> Thus, if cause is later shown to review the Christian Conciliation's arbitration results, a court can do so within the limitations governing review of any arbitration award. This is especially true in this case where the claims do not involve religious determinations or doctrines.</p>
</blockquote>
<h3>Some Others Have Been Invalidated</h3>
<p>For example, in <em>Southern California District Council of the Assemblies of God, Inc., v. Sonlite Tabernacle</em> (Cal. App. 2 Dist.), a church was suing its denomination, whose by-laws called for arbitration by “an ordained minister” in “good standing” with the denomination.  The court ruled that “some minimum levels of integrity” required that neither party to the dispute could be the arbitrator as well.</p>

<p>IANAL, but I see this as quite similar to contracts between Jewish parties that specify that any disputes are to be handled by a <a href="https://en.wikipedia.org/wiki/Beth_din" rel="nofollow noreferrer">Beis Din</a>. A Beis Din has two different roles as a court:</p>
<ul>
<li><p>Matters of primarily (or exclusively) Jewish law - e.g., conversion, divorce. While use of a Beis Din, and who can sit on a Beis Din, will vary by community and by branch of Judaism (Orthodox, Conservative, Reform), this is fairly universal. Most of these (e.g., conversion) are topics where a secular court would have no role. Divorce is a tricky one - there are cases where secular courts have a role in forcing the couple to go to a Beis Din for a Jewish divorce (a Get).</p>
</li>
<li><p>Matters of civil law - This can include contract disputes, damages, employment issues, etc. Jewish law, as embodied in the <a href="https://en.wikipedia.org/wiki/Talmud" rel="nofollow noreferrer">Talmud</a> includes an incredible amount of what we would consider &quot;civil law&quot;. Many Jews, particularly Orthodox (but not exclusively, and not all Orthodox) will use a Beis Din to resolve these types of disputes instead of going to a secular court. That can be the case if the parties agree to do so even if the original contract (if there was one) did not require it.</p>
</li>
</ul>
