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Where angels fear to tread: Islamic arbitration in probate and family law, a practical perspective.

"The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect. The right to organize voluntary religious associations to assist in the expression and dissemination of any religious doctrine, and to create tribunals ... is unquestioned." (1)

I. INTRODUCTION

In 2010, voters in Oklahoma overwhelmingly approved an amendment to the Oklahoma State Constitution that barred the consideration of "international law or Shari'a Law" in Oklahoma state courts. (2) Before it took effect, a Muslim named Muneer Awad successfully challenged the law by arguing that it rendered his Shari'a-compliant will unenforceable and infringed upon his First Amendment rights. (3) Before the Tenth Circuit struck down the "Save Our State" amendment, legislatures in as many as twenty states proposed similar legislation. (4)

It is clear from this trend that a portion of the American public finds the idea of substituting religious law for civil law in American courtrooms disconcerting. (5) What many of the proponents of "Save Our State" and similar legislation may not realize is that religious law is already applied routinely in America through the use of religious arbitration tribunals, and decisions by these bodies are binding on American judges through the Federal Arbitration Act (FAA) and state law based upon the Revised Uniform Arbitration Act (RUAA). (6) In fact, agreements to arbitrate disputes using Islamic, Christian, and Jewish principles and law have been honored in jurisdictions from New York to Texas. (7)

In Canada and the United Kingdom, fairly close analogues to the American legal system, the debate over the establishment of Shari'a arbitration tribunals has provoked public outcry. (8) In Ontario, this fury led to the deconstruction of all religious arbitration tribunals, not only those purporting to follow Shari'a. (9) Yet such tribunals have been active in the United States for quite some time. (10) For many Americans, Muslim and otherwise, addressing disputes through the use of religious precepts in these tribunals can be an important expression of faith. (11) For others, however, the application of binding religious law in any forum is perceived as anathema to a secular state and a risk to the substantive rights guaranteed by secular law. (12)

This Note addresses these issues by analyzing the ways in which precepts of Shari'a differ from American law in the areas of divorce, child custody, and probate law. (13) It then examines the effect that the application of Shari'a can have on the substantive rights of parties who submit to it. (14) Part II explores the historical development of religious arbitration and how arbitration can be beneficial to Muslims who choose to employ it. (15) After comparing the two legal systems' approaches to family and probate law, Part III argues that the expansion of religious arbitration in these areas could have inequitable effects on parties who never agreed to be bound by religious arbitration. (16) This Note then concludes that while Shari'a arbitration may be viable in the area of divorce, where two clear contracting and consenting parties are present, Shari'a and American law in the areas of custody and probate disputes have potentially irreconcilable differences that militate against the further expansion of religious arbitration in these areas. (17)

II. History

A. The First Amendment and Religious Disputes

The difficulties inherent in resolving legal issues involving questions of religious doctrine are not novel. (18) As early as 1871, the Supreme Court recognized that religious tribunals were better equipped than civil courts to handle legal disputes involving questions of faith. (19) In Watson v. Jones, the Court cautiously applied First Amendment principles and federal common law to determine a civil court's scope of authority when reviewing a church tribunal's decision. (20) The Watson Court held that inquiry into ecclesiastical matters impermissibly blurred the line between church and state. (21) This categorical abstention from engaging in questions of primarily religious review was later reinforced in Presbyterian Church v. Mary Elizabeth Blue Hull Memorial Presbyterian Church and Serbian Eastern Orthodox Diocese v. Milivojevich, in which the Supreme Court denied the courts any role in reviewing intrafaith disputes if the resolution of those disputes required inquiry into religious doctrine. (22)

This position was based not only on the First Amendment and principles of separation of church and state but also on the fact that American judges are simply unequipped to pass judgment on ecclesiastical issues from religions whose precepts may be entirely foreign to them. (23) Problematically, the application of this principle removes a large number of cases from judicial dockets, and leaves many without a fair remedy or recourse to the courts. (24) The Court laid out a way to balance these competing interests first in the dicta of Hull, and later in Jones v. Wolf, by approving the application of the neutral-principles-of-law approach. (25) This approach does not overrule Watson by allowing courts to intervene in doctrinal disputes; rather, it allows judges to decide cases where the underlying dispute can be resolved through the application of secular legal principles, including the interpretation of statutes, deeds, or contracts. (26) Although developed in the context of church property disputes, these principles have since been applied wherever the resolution of a case requires the court to inquire into the practices of a religious organization. (27)

B. Why Arbitration? A Square First Amendment Peg and a Round Religious Hole

The neutral-principles-of-law approach allows civil courts to address a wider swath of disputes than the abstention doctrine created in Watson would permit, but it still fails in a large category of cases where the court's general "hands-off" approach leaves litigants without redress in civil court. (28) This is especially the case with contracts, where often the disputants either want their terms to be religious in nature, or the services rendered involves primarily religious obligations. (29) Because of the wide variety of religious practice in the United States, and the sheer number of religious institutions nationwide, these concerns implicate more cases than one might expect. (30) It is this confluence of a jurisdictional void left by First Amendment jurisprudence, combined with the desire of many litigants to address religious concerns as a part of their dispute resolution that has led to the rise in popularity of religious arbitration in America today. (31)

Arbitration is a form of alternative dispute resolution (ADR) that allows parties to select an outside panel to determine the outcome of a dispute or contractual breach. (32) Arbitration practices vary considerably, but are regulated on the federal level by the FAA and at the state level by statutes that are generally based on the RUAA. (33) Although American courts were initially hostile toward arbitration for usurping the court's adjudicative role, the Supreme Court has since reversed this position, stating instead a preference for arbitration and mandating that arbitration clauses be construed broadly. (34)

Arbitration is a child of contract, and parties may only arrive in front of an arbitration panel by mutual agreement. (35) This happens in one of two ways: either the parties provide for arbitration as a remedy in a contract (such as a prenuptial agreement) or they agree after a conflict has already arisen (such as a divorce proceeding) to divert the decision to arbitration, ostensibly saving time and avoiding the high cost of litigation. (36) Religious arbitration tribunals are often used in both scenarios, as they allow parties to resolve disputes according to religious principles without the same restrictions placed on civil courts by the First Amendment. (37) This allows disputants to achieve a resolution that is both sensitive to their unique religious or cultural backgrounds and enforceable, if properly executed, by the civil courts. (38)

C. Filling a Niche--The Current State of Religious Arbitration in America

Jewish, Christian, and recently Muslim organizations rely on these principles to render enforceable decisions according to the precepts of their faith in a wide range of disputes. (39) In fact, these tribunals commonly handle conflicts ranging from ecclesiastical contract disputes to family law cases. (40)

In Judaism, religious tribunals called betei din (plural of beth din) allow observant Jews to resolve disputes according to Halacha, or rabbinic law. (41) Courts have consistently enforced the decisions of these tribunals as long as they conform to statutory arbitration requirements under the FAA/RUAA and basic notions of fairness and due process. (42) As with other forms of arbitration, the decisions of religious arbitration tribunals are subject to limited review, and the burden is on the party contesting the award to show corruption, fraud, arbitrator misconduct or bias, or a valid due process or public policy violation. (43)

Although less prevalent in the United States than Jewish beth din arbitration, Christian dispute resolution services based on biblical precepts have offered services in mediation and arbitration for years. (44) While betei din and Islamic tribunals each rely on a body of law (halacha and Shari'a, respectively), Christian ADR services generally do not. (45) Instead, these tribunals apply Christian principles, which are based on the Bible, the Apostolic Tradition, and the First Ecumenical Council. (46) As a result, there are fewer active Christian arbitration services available, and those that do exist often focus on mediation rather than arbitration services. (47) Still, these tribunals should not be discounted: One such service, Peacemaker Ministries, has been offering ADR services since 1982, and it appears likely that with the overall expansion of arbitration (religious and otherwise) in the American system, these tribunals will continue to flourish. (48)

Among these three religions, arbitration tribunals based on Islamic law are the latest to render enforceable decisions under the auspices of the FAA and state arbitration laws. (49) Although there have been calls for the establishment of a nationwide network of Shari'a courts, the Muslim community has thus far created a limited number of such tribunals. (50) They do exist, however, and one such arbitration tribunal has arisen in a surprising location: In 2003, in Jabri v. Qaddura, the Texas Court of Appeals honored an agreement to arbitrate before an organization called the Texas Islamic Court. (51)

D. The Use of Islamic Arbitration in Family Law Disputes

The court in Jabri v. Qaddura addressed the proper interaction between the secular court system and an Islamic arbitration tribunal in the context of family law, after the parties agreed to remove their dispute to the arbitration forum, but disagreed about the scope of the forum's authority. (52) In Jabri, a divorcing wife sought payment of her deferred dower, or mahr, and one-half of the value of the family home. (53) The parties agreed to submit the dispute to Islamic arbitration. (54) When a conflict arose regarding the scope of the arbitration agreement, however, the Court of Appeals of Texas directed the litigants back to the Texas Islamic Court to resolve the issue. (55) Notably, the appeals court referred the parties back to arbitration to handle all of the issues arising out of their dispute, including the custody and support of the children, and even a protective order arising under the Texas Family Code. (56) In rendering its decision, the appeals court offered no discussion of the potential public policy issues with allowing a religious tribunal to determine questions of child custody, child support, or a protective judicial order. (57)

1. Islamic Marriage and Divorce in America

Jabri v. Qaddura is indicative of the types of issues that Muslim arbitration tribunals face when presented with the divorce of an observant Muslim couple. (58) Marriage in Islam is considered both a civil contract and a sacred obligation. (59) Unlike the Judeo-Christian concept of marriage, an Islamic marriage does not depend on the recognition or solemnization by a third party, such as an imam or a judge. (60) Rather, "the marriage contract is the marriage." (61) An essential part of this contract is an arrangement conceptually similar to common-law dower, called a mahr. (62) A mahr is a payment of goods or valuable property made by the husband to the wife, and typically only a nominal portion is provided at the time of the marriage, with the rest being deferred until divorce or the husband's death. (63) According to Islamic law, a husband has an obligation to provide for his wife (or wives), and a deferred mahr is a mechanism for enforcing that obligation even in the event of the husband's death or a divorce. (64)

Difficulty often arises when a couple who has executed a typical Islamic marriage contract attempts to have that contract honored, and a deferred mahr enforced, in an American courtroom. (65) In attempting to apply the Jones v. Wolf neutral-principles-of-law approach, judges have come to incongruous results when presented with mahr agreements. (66) In Chaudry v. Chaudry, a New Jersey court treated a mahr agreement as a valid prenuptial agreement and awarded a Pakistani woman only her $1500 deferred mahr, but no other alimony or property division from her husband, a successful doctor. (67) An Ohio judge faced with the same dilemma treated a mahr as a prenuptial agreement but held it unenforceable under the Ohio law on prenuptial agreements because there was no consultation of counsel or disclosure of assets. (68) Likewise, in In re Marriage of Obaidi and Qayoum, a Washington court refused to honor a mahr that did not strictly conform to contract and prenuptial principles. (69) These cases demonstrate the difficulty faced by American judges in interpreting mahr agreements: The Establishment Clause forces a judge to apply only neutral contract principles, but the mahr fits poorly into the mold of a modern western prenuptial agreement. (70) In fact, if judges apply the precepts of the Uniform Premarital Agreement Act to mahr agreements, the vast majority will be invalidated, as it is not customary for a mahr to be signed with assistance of counsel or after the written disclosure of the assets of both parties. (71)

Chaudry v. Chaudry has often been cited by commentators as evidence that judicial interpretation of mahr agreements has a disparate impact on women. (72) There are a number of cases, however, where Muslim women attempt to enforce a mahr agreement that would actually benefit them more than typical property division in the American system would. (73) Often, these cases involve Muslim Americans whose mahr agreements appear to contemplate divorce in the American system, indicating at the very least an awareness that the mahr would be ruled upon by an American judge at the time of the division of assets. (74)

Unlike civil courts, religious arbitration tribunals are not presented with the same restrictions when considering religious marriage contracts. (75) For example, in Lang v. Levi, a divorcing couple had a prenuptial agreement that stipulated it would be enforced according to halacha in a Jewish beth din. (76) When the beth din granted an award that was only ten percent of the plain language amount owed on the contract, the wife sought to have the ruling vacated in civil court. (77) Under the strict, limited standard of review assigned to arbitration proceedings, the Court of Special Appeals of Maryland enforced the ruling of the beth din. (78) Given this precedent, it appears that religious tribunals have considerable latitude in interpreting marital contracts (including mahr or ketubah provisions), and their holdings will be difficult to overturn on appeal. (79)

2. Islamic Custody Norms in America

Divorce involves a restructuring of the family unit, and as such, issues of child custody and support are usually decided concurrently with a divorce action. (80) Islamic law and tradition have clear guidelines regarding the custody and maintenance of children. (81) In fact, Shari'a has a formulaic approach to determining custody in the early years of a child's life that is reminiscent of the American common-law "tender years presumption," which gave preference to mothers in custody disputes over young children. (82) The age at which that presumption ends varies among the schools of Shari'a jurisprudence, but in Hanafi law, for example, the mother retains the right to custody over a boy until he is seven and a girl until she reaches age nine. (83) In the event of a conflict, "the general rule is clearly that the father, who has rights over the child as the guardian (wali), retains the overall rights...." (84)

American courts often face the question of whether such laws are compatible with the American "best interests of the child" standard when considering whether to honor custody decrees from countries such as Saudi Arabia or Pakistan under principles of comity. (85) In the United States today, the mantra "the best interests of the child" has replaced the tender years presumption, though a clear maternal preference is still borne out by the statistics of child custody cases. (86) Where Shari'a custody standards seek to protect the interests of the child based primarily on the fitness of the parent, American courts take numerous factors into consideration, including: choice, special needs, education, and financial support capacity. (87) The court exercises this discretion as part of its parens patriae function, which allows it to protect the interests of a child even against his or her own parents. (88)

3. Arbitration of Custody Issues

If the state's power as parens patriae is supreme, what role could there be for religious arbitration? (89) The answer to this question is being worked out by states on a case-by-case basis: Child-custody arbitration is an evolving area of the law and the enforceability of such decisions remains in a state of flux. (90) State courts have taken different approaches when considering the issue, and have reached incongruous results. (91) In 2005, the American Academy of Matrimonial Lawyers published a Model Family Law Arbitration Act, which allows the court to void decisions that fail to meet the best-interests standard, but so far only one state has adopted it. (92) Because of this lack of uniformity, some courts have treated custody arbitration as outright void, while others have held it voidable only if the best interests of the child were not observed. (93) Since the Supreme Court reasserted parental autonomy in Troxel v. Granville, a third approach has arisen, requiring that child-custody arbitration be honored unless "harm to the child" can be shown as a result of the ruling. (94)

Cohen v. Cohen is illustrative of the void approach as applied to religious arbitration. (95) In Cohen, a New York appellate court refused to honor an agreement between divorcing spouses that provided for adjudication of custody issues by a New York beth din in the event of a conflict. (96) When a conflict arose around taking the children out of the country to Israel, the court simply stated, "[d]isputes over custody and visitation are not subject to arbitration." (97)

In the In re Marriage of Popack decision, on the other hand, the Colorado Court of Appeals adopted the voidable approach when presented with a beth din arbitration decision concerning the custody of a couple's twelve children. (98) While the court held that religious arbitration tribunals could decide issues of custody, it also held that the state, as parens patriae, retained the ability to review those decisions de novo at the request of either party. (99) This approach, adopted in a number of other jurisdictions, balances the right to parental autonomy against the state's role in protecting the children as parens patriae. (100)

In New Jersey, however, where religious arbitration is relatively common, the state supreme court has adopted the view expressed in Troxel that parental autonomy is sacrosanct, and has held that custody arbitration is binding unless the contesting party can meet the high burden of showing "harm to the child." (101) When defining that standard in Fawzy v. Fawzy, the court used "serious substance abuse issues or a debilitating mental illness" in a custodial parent as an example of harm, clearly intending a much higher standard of review than "the best interests of the child." (102) This rule honors parental rights, but almost entirely abdicates the state's role as protector of the child's interest in the adversarial divorce process. (103)

These three approaches, applied to a custody determination made by an Islamic arbitration tribunal relying upon Shari'a, would have vastly different results. (104) On one side of the spectrum, an arbitrated custody determination would be automatically reversed as outright void. (105) On the other end of the spectrum, it would be nearly impossible for a judge to overturn. (106)

E. The Use of Islamic Arbitration in Probate Disputes

In addition to divorce and custody disputes, legal scholars and practitioners have also encouraged the use of Muslim arbitration tribunals to resolve disputes arising out of wills based on precepts of Shari'a. (107) As with divorce or custody determinations, Islam has important decrees on the division of assets after death, and creating a will that is compliant with Shari'a can be an important expression of faith for a Muslim. (108) For example, when Muneer Awad successfully challenged Oklahoma's "Save Our State" amendment, he argued that the ban on the consideration of Shari'a would void the intent of his Shari'a-compliant will, which called for distribution of his assets according to the teachings of the Prophet Mohammed. (109) In many ways, however, Muslim precepts of succession conflict with substantive American probate law. (110)

1. American Secular Versus Shari'a-Based Inheritance Law

The Islamic law of inheritance, called ilm al-fara'id, and American probate law both have provisions that protect a surviving spouse's interest in the decedent's estate, but otherwise they differ greatly. (111) In America, the most powerful protection afforded to surviving spouses is that they may reject what is provided for in a will and instead elect to take their statutory share: a one-third interest in their spouse's property if there are children, or one-half if not. (112) Traditional Shari'a, on the other hand, provides for distribution according to strict formulae, and though a surviving spouse must be provided for, her exact share may be limited depending on the presence of other heirs and devisees. (113) The many permutations can become complicated but, as an example, if a Muslim male died leaving behind only his wife, a son, and a daughter, his wife would receive one-eighth of his property and the rest would pass to his children, with his son taking twice what his daughter would receive. (114) In the same scenario under American law, the wife is entitled to at least her one-third statutory share, but the husband could completely disinherit his children at his choice. (115)

2. Enforcing a Shari'a-Compliant Will in America

Because the American approach to succession differs so drastically from the approach mandated by Shari'a, Muslim Americans may seek to enforce a Shari'a-compliant will by including an arbitration clause requiring that any disputes in interpretation be submitted to a Muslim arbitration tribunal. (116) Ideally, this would allow for inquiry into the proper succession under whatever school of Shari'a the testator chooses. (117) Under the law in most states, however, this provision of the will would not be honored. (118) As we have seen, arbitration is based on the freedom of contract, and requires a binding agreement by both parties. (119) Because a will or trust is not a contract, the testator may not unilaterally force any devisee to give up his or her right to access the civil courts. (120) As such, an arbitration clause in a will (religious or otherwise) can only be enforced if state legislatures provide for it through statutory reform of probate codes, a currently evolving trend. (121)

3. Statutory Reform of Probate Codes

Given the expansion of arbitration into nearly every forum of dispute, it is not surprising that there has been a significant statutory reform effort to enforce donative arbitration clauses in the last five years. (122) Two states--Arizona and Florida--passed explicit statutory means for enforcement of arbitration provisions in wills and trusts in 2007 and 2008, respectively. (123) In 2004, the American College of Trusts and Estates Counsel (ACTEC) created a task force of the country's most prominent trusts and estates attorneys to study the issue and offered a model act that the Florida and Arizona bar relied on in crafting the legislation. (124)

As yet, there is no case law indicating enforcement of an arbitration clause from a trust or estate in front of a Muslim arbitration tribunal. (125) At least two commentators writing for the American Bar Association, however, have recommended the use of Muslim arbitration tribunals for devout Muslims. (126) Likewise, if more state legislatures implement the ACTEC model act, enforcement of Shari'a-compliant wills through arbitration will be possible, as it already is in at least two states. (127)

III. ANALYSIS

American law and Shari'a differ significantly in the areas of divorce, custody, and inheritance. (128) Yet under freedom-of-contract principles, parties that choose to do so may apply Shari'a rather than state law to their disputes through the use of religious arbitration. (129) In divorce cases, this may allow devout Muslims to honor the intent of their marriage contracts. (130) In areas where clear contractual relationships are not as well defined, including child-custody and probate disputes, religious arbitration is potentially problematic in its effect on the rights of noncontracting parties, who never agreed to submit to religious authority. (131)

In child-custody determinations, an inequitable result may occur when the state cedes its parens patriae status by enforcing arbitration rulings that are only voidable upon narrowly defined grounds. (132) In probate cases, the trend toward enforceable arbitration clauses could potentially force litigants into religious arbitration without consent and endanger a spouse's ability to elect his or her statutory share. (133) In the case of divorce, in which the contractual relationship is strongest, religious arbitration is a viable option. (134) If the parties are not careful to limit the scope of the arbitration agreement, however, a judge may broadly construe it to include all issues incident to the divorce. (135) In each of these scenarios, an inequitable decision could only be overturned on narrow statutory grounds, which, combined with Establishment Clause jurisprudence, leaves extremely limited judicial oversight. (136)

A. Application of Shari'a Arbitration Threatens to Value Parental Freedom of Contract over the Best Interests of the Child

A Muslim arbitration tribunal's custody determination would be treated far differently between the void, voidable, and harm-to-the-child jurisdictions. (137) To illustrate the difference among the three jurisdictional approaches, consider the following example: Suppose that the arbitration tribunal in Jabri v. Qaddura, relying on the Hanaf school of jurisprudence, had ruled that the divorcing couple's two daughters would remain with the mother until age nine, and then custody would transfer to the father. (138) In a void-approach jurisdiction, this decision would be "a nullity," and the parties would have to bring the custody issue anew before a judge, wasting time and resources. (139) In a voidable-approach jurisdiction, the decision would be valid but could be voided if challenged as against the children's best interests. (140) Yet under the harm-to-the-child approach, such a decision would almost certainly be upheld under deference to parental autonomy. (141)

Arbitration of custody disputes also has the potential to honor the freedom of contract and privacy rights of the parents at the expense of the best interests of their children. (142) While a family court judge, relying on state law, would be obligated to assess a number of statutory factors designed to protect the best interests of the child, a Muslim arbitration tribunal could focus entirely on parental rights, as demanded by Shari'a. (143) Such a decision would almost certainly be binding under the evolving harm-to-the-child standard, and would require review and further litigation to overturn in a voidable-approach jurisdiction. (144) This leaves the void approach on one side, where a parent's intent to honor her or her religious beliefs through the use of a tribunal is entirely disregarded, and the harm-to-the-child approach on the other, where parental autonomy trumps nearly all consideration of the child's interests. (145)

Between these two extremes, the voidable approach offers a balance between the autonomy of parents in raising their children and the state's interest in protecting children during the adversarial process of divorce. (146) When applied to religious arbitration, Muslim or otherwise, the voidable approach allows the parties involved to honor the precepts of their religion while still retaining the escape hatch of state review if an inequitable result has been reached. (147) Judicial review of religious arbitration does not run afoul of the Establishment Clause as long as the judge uses neutral principles of law to compare the findings of the tribunal with the statutory factors that would be applied in civil court. (148) Furthermore, this approach honors the rights of the child, who had no role in contracting for religious arbitration. (149)

B. Enforcement of Shari'a-Compliant Wills Imperils Statutory Share Election

As with custody determinations, enforcement of arbitration clauses in Shari'a-compliant wills by Muslim arbitration tribunals has the potential to infringe upon the rights of parties who never agreed to arbitration. (150) Practitioners writing for the American Bar Association have recommended, in at least two separate instances, that the best way to enforce a Shari'a-compliant will--at the peril of a spousal statutory share--is to provide an arbitration clause that diverts any conflicts arising out of the will to a Muslim arbitration tribunal. (151) While such arbitration clauses are not enforceable in most jurisdictions, recent probate reform has allowed for arbitration clauses in probate instruments in two states, and the American College of Trusts and Estates Counsel has written and promulgated a model act that would make these clauses enforceable elsewhere, if adopted. (152) The apparent implication of these two facts is that American judges will soon need to determine whether to enforce Shari'a arbitration clauses in wills and trusts, and likewise whether to enforce subsequent decisions rendered by Muslim arbitration tribunals. (153)

Looking first to the arbitration clauses, there is a strong argument that a Muslim arbitration tribunal is better situated than a probate judge to handle disputes arising out of a Shari'a-compliant will. (154) Take, for example, a hypothetical dispute among a Muslim man's heirs over whether a Shari'a tribunal properly resolved a dispute arising under the terms of his will, known as a wasiyya bequest. (155) An American judge could not inquire into religious doctrine, nor would the neutral-principles-of-law doctrine likely avail her. (156) A Muslim arbitration tribunal, on the other hand, could effectively honor the testator's intent by properly applying the school of Shari'a called for in the wasiyya, and resolving the dispute accordingly. (157)

Still, these arbitration provisions cannot be honored if they violate existing law or public policy. (158) Arbitration provisions and subsequent tribunal decisions that have the effect or intent of limiting a spouse's ability to elect a statutory share must therefore be voided. (159) Law and public policy place clear restrictions on the extent to which a husband may limit his wife's inheritance, and vice versa. (160) Thus, although some commentators have argued that the use of arbitration clauses in Shari'a-compliant wills could effectively skirt a spouse's ability to make a statutory share election, this result would be both unconscionable and illegal. (161)

As with custody determinations, the problem with enforcing donative arbitration clauses lies in freedom of contracts principles: Arbitration is a child of contracts, and a will is not a contract. (162) Unilaterally forcing a noncontracting party to remove a dispute from the civil courts imperils his or her rights and moves the dispute into a forum subject to limited review. (163) Thus, where donative arbitration clauses are legal, they must be viewed with circumspection and voided if they follow a religious norm at the expense of a spouse's right to elect a statutory share or any other legally protected interest. (164)

C. Use of Islamic Arbitration in Divorce Works Under Freedom of Contract and Arbitration Principles

While an arbitration provision in a will fits awkwardly into the arbitration mold, in the case of marriage, where two parties already in a contractual relationship subsequently form a contract to submit their divorce to arbitration, the risk of inequity is reduced. (165) At the very least, all those involved in the arbitration process made an affirmative decision to have their rights decided according to religious precepts. (166) Hence, where the contractual relationship of all parties involved is more clearly defined, the use of binding religious arbitration between divorcing couples is a feasible alternative to litigation. (167)

In addition to being amenable to the arbitration forum, Muslim divorces that require the disposition of a mahr agreement will likely fare better in an arbitration tribunal than in the civil courts. (168) The neutral-principles-of-law approach is limited in its effectiveness in handling mahr agreements, especially if the contract is void for failing to meet the statutory requirements of a prenuptial agreement. (169) Avoiding the difficulty of interpreting a fundamentally religious agreement in a civil court, Muslim arbitration tribunals offer parties the option of having the religious intent of their contracts honored, at their discretion. (170) Likewise, a litigant who would prefer the full customary protections of American divorce law need only refuse arbitration. (171)

While arbitration in this area fits well into contract and consent theories, a word of caution is in order: As the Supreme Court of the United States has made clear, arbitration provisions are to be interpreted broadly. (172) Therefore, disputants bringing a divorce action into the purview of an arbitration tribunal must carefully delineate the issues they wish to empower the tribunal to decide, or they may inadvertently bring ancillary issues, such as child custody and support, into the forum. (173) Still, unlike with custody or probate disputes, Muslim arbitration tribunals are well suited to handle the dissolution of the contractual elements of marriage, where the disputants whose interests are involved have all consented to the ADR forum. (174)

IV. CONCLUSION

A rising tide lifts all boats, according to a common aphorism. Arbitration, it seems, is an ever-rising tide in America today, and in many ways, religious arbitration rises and falls with it. As legislators and judges allow the expansion of arbitration--a construct built around contract and business law--into previously unimagined areas of the law, including family and probate law, the ability of religious tribunals to substitute substantive law for religious norms follows concurrently. In areas where two distinct, contracting parties willfully agree to submit their dispute to such an authority, such as in a divorce, this can be both an important expression of faith and a valid dispute resolution mechanism. In custody and probate disputes, however, where privity of contract and consent are removed, the rights of parties who never consented to arbitration are implicated and the use of religious arbitration raises significant public policy and due process concerns.

The recent movement to ban Shari'a from American courtrooms has largely been the product of xenophobia and misunderstanding of the arbitration process. For many Muslims, religious arbitration allows for an enforceable private dispute resolution process that is sensitive to their religious beliefs. Nevertheless, when arbitration, a system ordered around freedom of contract, allows the application of Shari'a at the expense of American substantive law, inequitable and irreconcilable results can easily follow. In fact, the same can be said for the use of any type of religious arbitration in these areas. For this reason, states considering adopting laws such as the ACTEC Model Act, the Model Family Law Arbitration Act, or other laws allowing for the expansion of arbitration into these arenas, should carefully consider the unintended effects that the application of Shari'a and other religious law can have under the auspices of these secular statutes.

(1.) Watson v. Jones, 80 U.S. 679, 728-29 (1871) (denying inquiry into tribunal decision in cases where issue requires determination of religious doctrine).

(2.) H.J. Res. 1056, 52d Leg., 2d Sess. (Okla. 2010), available at https://www.sos.ok.gov/ documents/questions/755.pdf; see also Court Blocks Okla. Ban on Islamic Law, Bos. Globe, Jan. 11, 2012, http://www.bostonglobe.com/news/nation/2012/01/11/oklahoma-ban-islamic-law-unconstitutional- courtfinds/LQa6jx3bkj7tU3ThUYYNsO/story.html (describing law and subsequent challenge).

(3.) See Awad v. Ziriax, 670 F.3d 1111, 1128-32 (10th Cir. 2012) (striking "Save Our State" and upholding injunction under Larson strict scrutiny test), aff'g 754 F. Supp 2d 1298 (W.D. Okla. 2010).

(4.) See Martha F. Davis & Johanna Kalb, Oklahoma and Beyond: Understanding the Wave of State Anti-Transnational Law Initiatives, 87 Ind. L.J. Supplement 1, 2 (2011) (detailing presentation of similar laws in as many as twenty states); see also Donna Leinwand, More States Enter Debate on Sharia Law, USA Today, Dec. 9, 2010, 10:29 AM, http://usatoday30.usatoday.com/news/religion/2010-12-09shariaban09_ST_N.htm (detailing legislative movement to ban Shari'a).

(5.) See generally Brief Amicus Curiae of Foundation for Moral Law, on Behalf of Defendant-Appellants, in Support of Reversal, Awad v. Ziriax, 670 F.3d 1111 (10th Cir. 2012) (No. 10-6273), 2011 WL 1461738 (arguing application of Shari'a fundamentally contrary to American legal system).

(6.) See infra Part II.B (outlining application of religious arbitration in American courts).

(7.) See infra Part II.B (outlining specific application of Christianity, Islam, and Judaism in American arbitrations).

(8.) See James Sturcke, Sharia Law in Canada, Almost, The Guardian, Feb. 8, 2008, 8:11 AM, http://www.guardian.co.uk/news/blog/2008/feb/08/sharialawincanadaalmost (describing removal of religious arbitration courts in Ontario); Rowan Williams, Archbishop of Canterbury, Lecture at the Royal Courts of Justice: Civil and Religious Law in England: A Religious Perspective (Feb. 7, 2008), available at http://www.guardian.co.uk/uk/2008/feb/07/religion.world2 (arguing for accommodation of Muslim tribunals in United Kingdom).

(9.) See Sturcke, supra note 8 (discussing religious arbitration in Canada).

(10.) See Michael C. Grossman, Note, Is This Arbitration?: Religious Tribunals, Judicial Review, and Due Process, 107 Colum. L. Rev. 169, 170 (2007) (describing continued use of religious tribunals in America and elsewhere).

(11.) See Muslim Arbitration Tribunal, http://www.matribunal.com/index.html (last visited Dec. 10, 2012) (describing value system behind operating Muslim Arbitration Tribunal in England).

(12.) See Eliyahu Stern, Don't Fear Islamic Law in America, N.Y. Times, Sept. 2, 2011, http://www.nytimes.com/2011/09/03/opinion/dont-fear-islamic-law-in-america.html (outlining public debate over Shari'a in America).

(13.) See infra Part III.A-E (analyzing application of Muslim arbitration).

(14.) See infra Part III.A-E.

(15.) See infra Part II.B-C (identifying motivating factors behind use of religious arbitration).

(16.) See infra Part III.A-C (analyzing effects of application of Shari'a arbitration clauses in wills and custody agreements).

(17.) See infra Part IV (concluding use of arbitration tribunals potentially problematic outside of strong contractual consent).

(18.) See generally Watson v. Jones, 80 U.S. 679 (1871) (assessing proper nature of civil court inquiry into matters of doctrine). It is worth noting that in American religious jurisprudence, terms such as "doctrine" and "ecclesiastical" come up regularly. See id. at 706-07 (addressing issues before court as "doctrine, discipline, ecclesiastical law, rule, or custom"). These terms are of Judeo-Christian origin and fit awkwardly, at best, into any conversation about Islam and Shari'a, but the alternatives are equally clumsy. See also infra note 53 and accompanying text (explaining difficulty in applying terms like "dower" in Shari'a context).

(19.) See Watson, 80 U.S. at 733-34 (holding further judicial inquiry improper where issues of faith already answered by highest religious tribunal).

(20.) See id. (stating inquiry by court "would deprive these bodies of the right of construing ... church laws"). The Watson Court could only refer to First Amendment "principles," rather than applying the First Amendment directly, because the Free Exercise and Establishment Clauses had not yet been incorporated to the states. See Everson v. Bd. of Educ. of Ewing Twp., 330 U.S. 1, 15 (1947) (incorporating Establishment Clause to states); Cantwell v. Connecticut, 310 U.S. 296, 303 (1940) (incorporating Free Exercise Clause to states). Nevertheless, the Watson decision is clearly based on the principles behind the Establishment and Free Exercise clauses, which militate against the state interfering in the practice of religion. See Presbyterian Church v. Mary Elizabeth Blue Hull Mem'l Presbyterian Church, 393 U.S. 440, 445 (1969) (stating Watson "decided before the application of the First Amendment ... nonetheless informed" by its considerations).

(21.) See Watson, 80 U.S. at 733 (addressing First Amendment entanglement issue). According to the Court in Watson, a matter is ecclesiastical if it "concerns theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required of them...." Id.; see also Kent Greenawalt, Hands Off! Civil Court Involvement in Conflicts over Religious Property, 98 Colum. L. Rev. 1843, 1847 (1998) (discussing approach to ecclesiastical matters developed in Watson).

(22.) See Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 724-25 (1976) ("When ... ecclesiastical tribunals are created ... the Constitution requires that civil courts accept their decisions as binding...."); Hull Church, 393 U.S. at 450 (holding, under First Amendment, civil court could not address issues of departure from doctrine).

(23.) See Lee v. Weisman, 505 U.S. 577, 616-17 (1992) (arguing courts engaging in "comparative theology" exceed "competence of the federal judiciary"); Tal Tours (1996) Inc. v. Goldstein, 808 N.Y.S.2d 920, *2 (N.Y. Sup. Ct. 2005) (explaining "secular courts ... have long since recognized that they are not competent to address religious disputes").

(24.) See 2 Domke on Com. Arb. [section] 54:4 (addressing application of religious question to arbitration). As Domke notes, courts "routinely dismiss cases for no other identifiable reason other (sic) than that adjudication would require inquiry into religious matters...." Id.; see also Jared A. Goldstein, Is There a "Religious Question" Doctrine? Judicial Authority to Examine Religious Practices and Beliefs, 54 Cath. U. L. Rev. 497, 498 (2005) (stating "lower courts have relied on ... prohibition to dismiss a wide range of ... ordinary disputes"). Likewise, there are no actual references to a "religious question" exception in case law, though its precepts are ingrained in American jurisprudence. See Domke, supra, [section] 54:4. The ministerial exception described in Watson is related to, but distinct from, "religious question," though both are clearly based on the same First Amendment concerns. Id.

(25.) See Hull Church, 393 U.S. at 449 (holding "neutral principles of law ... applied without 'establishing' churches to which property is awarded"); see also Jones v. Wolf, 443 U.S. 595, 604 (1979) ("[A] State is constitutionally entitled to adopt neutral principles of law."). As the Court noted, this approach would likely encourage parties to structure agreements involving church property in such a way that a remedy could be available in civil courts without deciding religious questions. Wolf, 443 U.S. at 604.

(26.) See Presbyterian Church v. Mary Elizabeth Blue Hull Mem'l Presbyterian Church, 393 U.S. 440, 449 (1969) (discussing application of neutral principles of law).

(27.) See Encore Prods., Inc. v. Promise Keepers, 53 F. Supp. 2d 1101, 1112 (D. Colo. 1999) (applying Jones v. Wolf to dispute over clause in contract requiring religious arbitration).

(28.) See Goldstein, supra note 24, at 500 (discussing application of religious-question doctrine in cases from negligence to child custody). The author notes that the application of this doctrine has increased exponentially in recent years, leading to dismissal of a high number of claims "with little discussion or dissent." Id. at 502. Goldstein goes so far as to describe the current jurisprudence on the subject as an "absolute prohibition on judicial examination of all questions touching on religion." Id.

(29.) See, e.g., Alicea v. New Brunswick Theological Seminary, 608 A.2d 218, 225 (N.J. 1992) (declining to decide contract issue of tenured faculty member involving ministerial duties); Odatalla v. Odatalla, 810 A.2d 93, 95-96 (N.J. Super. Ct. Ch. Div. 2002) (applying neutral-principles approach to Islamic marriage agreement); Avitzur v. Avitzur, 446 N.E.2d 136, 136-37 (N.Y. 1983) (determining enforceability of Jewish marital agreement).

(30.) See Grossman, supra note 10, at 177 (describing demand on arbitration tribunals from various religions including Christianity, Judaism, and Islam).

(31.) See Ginnine Fried, Comment, The Collision of Church and State: A Primer to Beth Din Arbitration and the New York Secular Courts, 31 Fordham Urb. L.J. 633, 636-41 (2004) (describing religious and practical reasons encouraging Jews to turn to beth din arbitration).

(32.) See Steven C. Bennett, Enforceability of Religious Arbitration Agreements and Awards, Disp. Resol. J., Nov. 2009-Jan. 2010, at 24, 25 (describing arbitration practices). Although falling under the same statutes as secular arbitration (FAA and RUAA), religious arbitration raises unique concerns. See id. at 26.

(33.) See Federal Arbitration Act, 9 U.S.C. [section][section] 1-16 (2006) (defining scope and procedural requirements for arbitration); Revised Uniform Arbitration Act, 7 U.L.A 9-94 [section][section] 1-33 (2006) (providing state legislators with revised model for state arbitration law).

(34.) Compare Home Ins. Co. v. Morse, 87 U.S. 445, 458 (1874) (holding arbitration agreement "repugnant to the Constitution of the United States" and "illegal and void"), with Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 22 n.27 (1983) (stating federal policy "requires a liberal reading of arbitration agreements"), and Coors Brewing Co. v. Molson Breweries, 51 F.3d 1511, 1514 (10th Cir. 1995) ("All 'doubts are to be resolved in favor of arbitrability.'" (quoting Oil, Chem. & Atomic Workers Int'l Union, Local 2-124 v. Am. Oil Co., 528 F.2d 252, 254 (10th Cir. 1976))). More recently, the Supreme Court has gone so far as to refuse to allow parties to provide for judicial review of arbitration decisions in the language of an arbitration agreement, where such provisions would conflict with the FAA. See Hall St. Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576, 578 (2008) (declining to enforce judicial review provision in arbitration agreement deviating from review provisions of FAA).

(35.) See Rent-A-Center, West, Inc. v. Jackson, 130 S. Ct. 2772, 2776 (2010) (upholding "fundamental principle that arbitration is a matter of contract"); see also Bennett, supra note 32, at 26 (discussing principles underlying arbitration practice).

(36.) See Bennett, supra note 32, at 26 (describing entry of disputes into arbitration forum).

(37.) See Tal Tours (1996) Inc. v. Goldstein, 808 N.Y.S.2d 920, *2 (N.Y. Sup. Ct. 2005) (citing Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 708 (1976)) (stating religious tribunals "held to not run afoul of the First and Fourteenth Amendments").

(38.) See Bennett, supra note 32, at 28 (describing considerations for rendering enforceable religious arbitration decisions).

(39.) See Lee Ann Bambach, The Enforceability of Arbitration Decisions Made by Muslim Religious Tribunals: Examining the Beth Din Precedent, 25 J.L. & Religion 379, 381-82 (2010) (analogizing longstanding presence of rabbinic courts in United States to Muslim religious tribunals).

(40.) See id. at 382 (describing use of religious arbitration tribunals).

(41.) See id. (explaining history of beth din arbitration).

(42.) See, e.g., Meshel v. Ohev Sholom Talmud Torah, 869 A.2d 343, 354-55 (D.C. 2005) (holding First Amendment did not preclude court from enforcing beth din arbitration provision); Lang v. Levi, 16 A.3d 980, 991 (Md. Ct. Spec. App. 2011) (upholding validity of beth din arbitration clause in contract and enforcing subsequent tribunal ruling); Elmora Hebrew Ctr., Inc. v. Fishman, 593 A.2d 725, 732 (N.J. 1991) (enforcing beth din judgment in rabbi employment dispute).

(43.) See 9 U.S.C. [section] 10(a) (2006) (outlining FAA Standards). The FAA states that the appealing party must show one of four grounds for vacatur:

(1) where the award was procured by corruption, fraud, or undue means; (2) where there was evident partiality or corruption in the arbitrators, or either of them; (3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or (4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.

Id.

(44.) See generally Glenn G. Waddell & Judith M. Keegan, Christian Conciliation: An Alternative to "Ordinary" ADR, 29 Cumb. L. Rev. 583 (1999) (describing history of Christian Conciliation Services).

(45.) See R. Seth Shippee, Note & Comment, "Blessed Are the Peacemakers": Faith-Based Approaches to Dispute Resolution, 9 ILSA J. Int'l & Comp. L. 237, 241-42 (2002) (outlining use of biblical principles in Christian ADR). As Shippee notes, this process is purposely informal. Id. But cf. 118 Am. Jur. Trials 305 Mediation and Arbitration of Family Law Disputes--Property, Support, Custody, and Parenting Time, [section] 57 (2012) (describing applicability of canon law to divorce).

(46.) See Waddell & Keegan, supra note 44, at 590 (outlining ADR process based on "biblical principles" in a "biblical manner"); see also Mark L. Movsesian, Fiqh and Canons: Reflections on Islamic and Christian Jurisprudence, 40 Seton Hall L. Rev. 861, 865 (2010) (identifying universal principles between differing sects of Christianity).

(47.) See Waddell & Keegan, supra note 44, at 592 (describing arbitration system heavily reliant on mediation). Parties often elect for mediation and then transition to arbitration when no resolution is achieved. Id.

(48.) Id. at 613 (discussing demand for services by large population of Christians).

(49.) See Michael A. Helfand, Religious Arbitration and the New Multiculuralism: Negotiating Conflicting Legal Orders, 86 N.Y.U. L. Rev. 1231, 1249-50 (2011) (discussing recent emergence of Islamic arbitration courts).

(50.) See id. at 1250 (outlining plan by Council of Masajid to create network of Muslim arbitration in U.S.). See generally Fiqh Council of North America, http://www.fiqhcouncil.org (last visited Dec. 20, 2012) (seeking to assist Muslims in North America in living according to Shari'a).

(51.) See Jabri v. Qaddura, 108 S.W.3d 404, 413-14 (Tex. App. 2003) (enforcing agreement to arbitrate before Texas Islamic Court); see also Adam Liptak, When God and the Law Don't Square, N.Y. Times, Feb. 17, 2008, http://www.nytimes.com/2008/02/17/weekinreview/17liptak.html (discussing Jabri and emergence of Islamic religious tribunals in United States).

(52.) Jabri, 108 S.W.3d at 406-08 (describing scope of arbitration agreement). Typical of many family law cases, this divorce implicated many issues beyond the termination of the marriage, including the custody of the children and their support. Id. Despite the operation of the Texas Islamic Court, Texas is one of a growing number of states to have considered a legislative ban on Shari'a. See Patricia Kilday Hart, Texas Lawmakers Study Ban on Sharia Law, Hous. Chron., Feb. 9, 2012, http://www.chron.com/news/kilday-hart/article/ Texas-lawmakers-study-ban-on-Sharia-law-3220099.php (discussing bill in consideration to ban religious law in Texas).

(53.) Jabri, 108 S.W.3d at 406-07 (discussing background of case). The mahr agreement stipulated that Rola Jabri, the wife, was entitled to "[o]ne-half of the value of the house ... in addition to $40,000 ... the payment of which is deferred." Id. Not to be confused with a dowry, which comes from a wife's family to her husband, a mahr is analogous to the concept of dower. See David Pearl & Werner Menski, Muslim Family Law 179 (3d ed. 1998). As Pearl and Menski note, "the Muslim law element of dower is designed to protect the woman and is therefore paid by the husband (or on his behalf) to the wife." Id.; see also infra Part II.D.1 and accompanying text (discussing mahr agreements).

(54.) Jabri, 108 S.W. 3d at 413 (holding "Arbitration Agreement signed by the parties is valid and enforceable and covers all disputes ... .").

(55.) See id. (detailing holding of case).

(56.) Id. According to a New York Times report, the parties were not able to reach a conclusion through arbitration because they never agreed on a panel of arbitrators. See Liptak, supra note 51 (discussing Jabri decision).

(57.) See Jabri v. Qaddura, 108 S.W.3d 404, 413-14 (Tex. App. 2003) (addressing scope of holding). A later Texas Court of Appeals case relied on the finding in Jabri to lift another stay on arbitration proceedings regarding child custody. See Kilroy v. Kilroy, 137 S.W.3d 780, 785 (Tex. App. 2004) (applying Jabri to secular arbitration agreement). Given these two binding decisions at the appellate level, it is clear that in Texas, custody is arbitrable by both secular and religious bodies. Id. Kilroy also failed to address any public policy concerns in this regard. Id.

(58.) See Jabri, 108 S.W.3d at 406-07 (addressing myriad issues arising out of divorce action subject to arbitration tribunal).

(59.) See Mahmoud Hoballah, Marriage, Divorce, and Inheritance in Islamic Law, in Understanding Islamic Law 111, 111-12 (Hisham M. Ramadan ed., 2006) (describing Islamic marriage tradition).

(60.) See Nathan B. Oman, How to Judge Shari'a Contracts: A Guide to Islamic Marriage Agreements in American Courts, 2011 Utah L. Rev. 287, 300-02 (2011) (describing Muslim conception of marriage contract).

(61.) Id. While the Judeo-Christian conception of marriage is probably best described as quasi-contractual, or at least as a unique form of contract, a Muslim marriage fits more neatly into a conception of a typical contract, with incident duties and remedies. See Pearl & Menski, supra note 53, at 176 (describing legal effects of Muslim marriage contract).

(62.) See Hoballah, supra note 59, at 112 (defining mahr).

(63.) See Pearl & Menski, supra note 53, at 178 (describing elements of typical mahr).

(64.) Id. This obligation must be kept in mind when considering the smaller inheritance portions provided for wives in a Shari'a-compliant will. See infra Part II.E and accompanying text (describing contrast between American inheritance law and Shari'a).

(65.) See Chelsea A. Sizemore, Comment, Enforcing Islamic Mahr Agreements: The American Judge's Interpretational Dilemma, 18 Geo. Mason L. Rev. 1085, 1085 (2011) (discussing difficulty in application of neutral-principles approach to mahr agreements). Judges who struggle with mahr agreements typically either confuse them with the archaic Western concept of dowry, or conceptualize them in terms of a modern prenuptial agreement. Id. at 1086. See also In re Marriage of Obaidi and Qayoum, 226 P.3d 787, 788 (Wash. Ct. App. 2010) (defining mahr as "a prenuptial agreement ... that provides an immediate and long-term dowry").

(66.) See supra note 25 and accompanying text (discussing Jones v. Wolf neutral-principles-of-law approach). Inconsistent application of this standard has generally led to incongruous results and inequitable outcomes for the parties involved. See also, e.g., Odatalla v. Odatalla, 810 A.2d 93, 98 (N.J. Super. Ct. Ch. Div. 2002) (holding First Amendment did not preclude enforcement of $10,000 mahr agreement); Chaudry v. Chaudry, 388 A.2d 1000, 1006 (N.J. Super. Ct. App. Div. 1978) (enforcing mahr as complete prenuptial agreement, allowing no other property division or alimony); Ahmad v. Ahmad, No. L-00-1391, 2001 WL 1518116, at *4-9 (Ohio Ct. App. Nov. 30, 2001) (treating mahr as unenforceable prenuptial agreement due to lack of representation and disclosure). See generally Tracie Rogalin Siddiqui, Interpretation of Islamic Marriage Contracts by American Courts, 41 Fam. L.Q. 639 (2007) (discussing varied results of interpreting mahr agreements in secular courts).

(67.) See Chaudry, 388 A.2d at 1006 (describing scope of award of property division and alimony). Chaudry is often referenced by commentators who point to the decision as evidence that the application of religious law is detrimental to women's rights. See Lindsey E. Blenkhorn, Note, Islamic Marriage Contracts in American Courts: Interpreting Mahr Agreements As Prenuptials and Their Effect on Muslim Women, 76 S. Cal. L. Rev. 189, 190-91 (2002) (describing negative effect of interpreting mahr agreements as typical prenuptial in Chaudry and elsewhere).

(68.) See Ahmad, 2001 WL 1518116, at *4 (invalidating mahr agreement because no strict conformity to statutory norm for prenuptial agreements).

(69.) In re Marriage of Obaidi and Qayoum, 226 P.3d at 791 (interpreting validity of mahr provision under law governing prenuptial agreements).

(70.) See Oman, supra note 60, at 322 (stating "Islamic marriage contracts fit awkwardly into our law of premarital agreements"). This is the case because, as Oman points out, unlike prenuptial agreements, mahr agreements are not "made in contemplation of marriage and effective upon marriage." Id. (internal citations omitted).

(71.) See generally Unif. Premarital Agreement Act, 9C U.L.A. 35 (2001) (providing model for state law on prenuptial agreements). See also Nathan B. Oman, Bargaining in the Shadow of God's Law: Islamic Mahr Contracts and the Perils of Legal Specialization, 45 Wake Forest L. Rev. 579, 581 (2010) (describing conflict between UPAA and mahr agreements).

(72.) See Blenkhorn, supra note 67, at 189-92 (concluding interpretation of mahr agreements as enforceable prenuptial agreement negatively impacts women's rights).

(73.) See, e.g., Akileh v. Elchahal, 666 So. 2d 246, 247 (Fla. Dist. Ct. App. 1996) (seeking enforcement of $50,000 mahr agreement); Zawahiri v. Alwattar, No. 07AP-925, 2008 WL 2698679, at *1 (Ohio Ct. App. July 10, 2008) (seeking enforcement of mahr because no marital assets present); Ahmed v. Ahmed, 261 S.W.3d 190, 192-93 (Tex. App. 2008) (seeking enforcement of $50,000 mahr agreement).

(74.) See Blenkhorn, supra note 67, at 228 (acknowledging American women often seek benefit of bargain from mahr).

(75.) See Grossman, supra note 10, at 181 (stating "panels may reach decisions that contravene secular law"). While civil courts would be unable to consider Shari'a or halacha in seeking to understand the intent of the parties, an arbitration tribunal would be uniquely positioned to interpret the body of religious law to understand or interpret a mahr or ketubah in its religious and cultural context. See id.

(76.) See Lang v. Levi, 16 A.3d 980, 982-84 (Md. Ct. Spec. App. 2011) (describing facts of case).

(77.) Id. at 982 (providing procedural history of case). The marital award obligated the husband to pay $100 per day until he agreed to grant the wife a religious divorce, known as a get. Id. At the time the decision was rendered, this would have amounted to $108,000, but the beth din only awarded Lang $10,200, "on the basis of Jewish law." Id.

(78.) Id. at 985 (outlining standard of review applied to arbitration awards). The court applied the standards of the Uniform Arbitration Act (UAA), as it had been adopted in Maryland. Id.; see supra note 43 (explaining UAA standard).

(79.) See 9 U.S.C. [section] 10(a) (2006) (codifying standard for review of arbitral awards). The judge in Lang explained, "'Only a completely irrational decision by an arbitrator on a question of law, so extraordinary that it is tantamount to the arbitrator's exceeding his powers, will warrant the court's intervention.'" Lang, 198 A.3d at 985 (quoting Mandl v. Bailey, 858 A.2d 508, 525 (Md. Ct. Spec. App. 2004)). Because the court is unable to inquire into religious law, looking into the "question of law" when the tribunal applied Shari'a can be a difficult task. See id.

(80.) See Sanford N. Katz, Family Law in America 102-08 (2011) (analyzing child custody law and practice).

(81.) See Pearl & Menski, supra note 53, at 410-12 (describing varying approaches to custody determinations among schools of Shari'a).

(82.) See Monica E. Henderson, Note, U.S. State Court Review of Islamic Law Custody Decrees--When Are Islamic Custody Decrees in the Child's Best Interest?, 36 Brandeis J. Fam. L. 423, 426-30 (1998) (comparing Islamic standards to "common law notions of maternal preference and the tender years doctrine").

(83.) See Pearl & Menski, supra note 53, at 411-12 (delineating approaches to custody under various schools of Shari'a). These approaches are consistent in that a parentally fit mother retains custody of her young children, but otherwise they vary significantly. Id. For example, according to one school, the presumption ends at age two for boys and age seven for girls. Id. According to the Hanbali school, on the other hand, the ages are seven for both, but the children are then given a choice as to the parent with which they wish to remain. Id.

(84.) Id. at 411-12.

(85.) See Hosain v. Malik, 671 A.2d 988, 999 (Md. Ct. Spec. App. 1996) (holding Pakistani custody order valid for considering best interests of child).

(86.) See Timothy S. Grall, Custodial Mothers and Fathers and Their Child Support: 2001, U.S. Census Bureau, 1 (Oct. 2003), http://www.census.gov/prod/2003pubs/p60-225.pdf (stating five out of six custodial parents in U.S. in 2001 female).

(87.) See Henderson, supra note 82, at 430 (describing Shari'a approach to custody). But see Pearl & Menski, supra note 53, at 412 (stating mature child's choice important factor in custody determination). American states rely on statutes or common-law rules in determining what constitutes "the best interests of the child." Katz, supra note 80, at 106-07 (defining how to apply best-interests-of-child standard).

(88.) See Schall v. Martin, 467 U.S. 253, 265 (1984) (applying parens patriae standard). "Children, by definition, are not assumed to have the capacity to take care of themselves. They are assumed to be subject to the control of their parents, and if parental control falters, the State must play its part as parens patriae." Id.

(89.) See generally E. Gary Spitko, Reclaiming the "Creatures of the State": Contracting for Child Custody Decisionmaking in the Best Interests of the Family, 57 Wash. & Lee L. Rev. 1139 (2000) (defining enforceability of custody determinations by arbitration). Professor Spitko divided the jurisdictions among the "void" and "voidable" approaches and also examined the binding approach employed in Michigan. Id. at 115964. Although he discussed the then-recent decision in Troxel v. Granville, his divisions could not account for the effect it would have in Fawzy v. Fawzy, which was still nine years away. See id. at 1185-86; see also Troxel v. Granville, 530 U.S. 57, 60 (2000) (addressing parental autonomy in custody decisions); Fawzy v. Fawzy, 973 A.2d 347, 362 (N.J. 2009) (defining significantly higher standard for voidability of custody determinations in New Jersey after Troxel).

(90.) See Spitko, supra note 89, at 1156-58 (describing judicial treatment of arbitration awards concerning custody); Christina Fox, Note, Contracting for Arbitration in Custody Disputes: Parental Autonomy vs. State Responsibility, 12 Cardozo J. Conflict Resol. 547, 547 (2011) (analyzing changing status of custody determinations among states). Weighing parental privacy in raising children against the interest of the state to determine the child's best interest has always been a difficult balancing act, and Troxel appears to have further upended the scales. See Fox, supra, at 564.

(91.) Compare Cohen v. Cohen, 600 N.Y.S.2d 996, 996 (N.Y. App. Div. 1993) (holding custody determinations through arbitration void), and Miller v. Miller, 620 A.2d 1161, 1164 (Pa. Super. Ct. 1993) (holding arbitration voidable), with Dick v. Dick, 534 N.W.2d 185, 191 (Mich. Ct. App. 1995) (holding arbitration of custody binding upon parties), and Fawzy, 973 A.2d at 361 (requiring showing of "harm to the child" to void arbitration).

(92.) See Model Family Law Arbitration Act, Am. Acad. of Matrimonial Lawyers, http://www.aaml.org/library/publications/21215/model-family-law-arbitration-act (last visited Jan. 31, 2013) (proposing application of voidable standard to custody arbitration); see also George K. Walker, Family Law Arbitration: Legislation and Trends, 21 J. Am. Acad. Matrimonial Law. 521, 521 (2008) (outlining new model act for use in arbitration of family law disputes). Only North Carolina has adopted the act wholesale. See N.C. Gen. Stat. Ann. [section] 50-41 (West 2012).

(93.) See supra note 89 and accompanying text (differentiating void, voidable, and harm-to-the-child jurisdictions).

(94.) See Fawzy, 973 A.2d at 361 (requiring harm to child to void arbitration). In Troxel, the Supreme Court reasserted parental autonomy against the state by striking down a decision to grant visitation to a child's grandparents, when the child's fit mother objected. See Troxel, 530 U.S. at 60-63 (reaffirming "fundamental right of parents to make decisions concerning ... custody, and control of their children"). Although Troxel addressed visitation, legal scholars have argued that the revised view of parental autonomy applied in Troxel should allow parents to arbitrate matters of custody without supervision or intervention by the courts. See Aaron E. Zurek, Note, All the King's Horses and All the King's Men: The American Family After Troxel, the Parens Patriae Power of the State, a Mere Eggshell Against the Fundamental Right of Parents to Arbitrate Custody Disputes, 27 Hamline J. Pub. L. & Pol'y 357, 373-75 (2006) (analyzing effect of Troxel on arbitration of custody issues).

(95.) See 600 N.Y.S.2d at 996 (applying void approach to custody disputes in New York). The court in Cohen may have been more persuaded by this approach in light of the fact that the case involved a complex, international custody dispute that implicated the Hague convention. Id. Still, the court, in Glauber v. Glauber, took the same approach in a more typical divorce scenario. 600 N.Y.S.2d 740, 743 (N.Y. App. Div. 1993) (treating arbitration for custody as void ab initio).

(96.) Cohen, 600 N.Y.S.2d at 996 (detailing facts of case).

(97.) Cohen v. Cohen, 600 N.Y.S.2d 996, 997 (N.Y. App. Div. 1993). The appellate court had no findings of fact to rely on to determine the best interests of the child and thus remitted the case for custody and child support findings. Id.

(98.) See In re Marriage of Popack, 998 P.2d 464, 468-69 (Colo. App. 2000) (defining standards for use of binding arbitration in Colorado custody disputes). The challenge to the arbitration decision came from the mother, as the beth din granted Yisroel Popack control of the family home and custody of all of the children (albeit temporarily). Id. at 466.

(99.) Id. at 468 (determining standard of review to apply to custody). The court examined the Colorado law on the subject, which allowed for arbitration of custody, subject to de novo review by the state upon request of either parent. See id.; see also Colo. Rev. Stat. [section] 14-10-128.5 (2012) (allowing arbitration of custody, but also allowing requests for judicial de novo review by either party). Although the law on point allows for de novo review, it must occur within thirty days of the decision, and if the court agrees with the arbitrator, the parent challenging the holding must pay the court fees for his or her adversary. [section] 14-10-128.5.

(100.) See Spitko, supra note 89, at 1163 (analyzing balancing test employed by state in considering custodial arbitration); see also Sheets v. Sheets, 254 N.Y.S.2d 320, 323 (N.Y. App. Div. 1964) (balancing state interest as parens patriae against parental rights).

(101.) See Fawzy v. Fawzy, 973 A.2d 347, 350 (N.J. 2009) (applying harm-to-child standard of review).

(102.) See id. at 361 (explicating new standard). The court stated that if "no harm to the child is threatened, there is no justification for the infringement on the parents' choice to be bound by the arbitrator's decision." Id.

(103.) See Fox, supra note 90, at 558 (contrasting New York's void approach with New Jersey's novel standard). As Fox shows, New York and New Jersey are emblematic of the two sides of the debate. Id. In New York, the child's interests come first, but New Jersey holds parental rights sacrosanct. See id.

(104.) See supra note 91 and accompanying text (contrasting three approaches to custody enforcement).

(105.) See Cohen v. Cohen, 600 N.Y.S.2d 996, 996 (N.Y. App. Div. 1993) (holding arbitration of custody void ab initio).

(106.) See Fawzy, 973 A.2d at 350 (requiring demonstrated harm to child).

(107.) See Omar T. Mohammedi, Shariah-Compliant Wills: An Overview, Prob. & Prop. Jan./Feb. 2011, at 58, 61, available at http://www.otmlaw.com/pubsitems/2011ABAShariahWills.pdf (advising Muslims seeking enforceable Shari'a-compliant wills to provide for Muslim arbitration). Mohammedi, a practitioner in New York, claims that "[t]he best solution is for parties to arbitrate all disputes concerning Shariah law with a qualified Islamic arbitration body because most U.S. judges would like to avoid making decisions based on religious law." Id. at 63. The author indicates the advantages of seeking arbitration in such a case but concedes that there is currently no case law directly on point to support his position. Id. See generally Martin M. Shenkman, Religion and Estate Planning, Am. Bar Ass'n (Oct. 2007), http://apps.americanbar.org/rppt/ cmtes/standing-committees/diversity/ReligionandEstatePlanning.pdf (advocating use of arbitration clause to enforce Shari'a-compliant will).

(108.) See Mohammedi, supra note 107, at 59 (describing creation of Shari'a-compliant will as religious obligation for all devout Muslims). Mohammedi describes the obligation to keep a written will as a religious imperative for Muslims, as illustrated by a quote from the Prophet Mohammed: "It is the duty of every Muslim who has something which is to be given as a bequest not to have it for two nights without having his will written down regarding it." Id.

(109.) See Awad v. Ziriax, 754 F. Supp. 2d 1298, 1304 (W.D. Okla. 2010) (upholding standing on basis of invalidation of Shari'a-compliant will), aff'd, 670 F.3d 1111 (10th Cir. 2012). The plaintiff successfully argued that the amendment violated the Establishment Clause of the First Amendment and the Larson test. Id.

(110.) See Mohammedi, supra note 107, at 61 (contrasting desire to craft Shari'a-compliant wills with existing American probate law).

(111.) Compare N.J. Coulson, A History of Islamic Law 108-34 (W. Montgomery Watt ed., Transaction Publishers 2011) (1964) (detailing norms of inheritance in Islam), with Ralph C. Brashier, Inheritance Law and the Evolving Family 10-11 (2004) (outlining current state of American probate practice nationally). Although Coulson's work is now over forty years old, and there has been relatively little written on the subject for a Western audience since, Mohammedi's evaluation as a current practitioner in America reflects the same truth. See Mohammedi, supra note 107, at 62 (describing conflict between public policy and Shari'a-compliant wills).

(112.) See Brashier, supra note 111, at 10 (describing protection afforded by statutory elective share law in United States). In fact, in all but one state the spouse is the only family member who receives legal protection from intentional disinheritance. Id. Modern statutory share theory evolved from the common-law concept of dower, which granted a wife a perfected claim to one-third of her husband's realty upon his death, to protect her from becoming destitute. Id. at 14.

(113.) See Mohammedi, supra note 107, at 60 (detailing inheritance depending upon number and status of surviving heirs). Though the percentage a wife receives will be lower than the American statutory share, she is also entitled to the protection of her deferred mahr. Id. at 59-60. The lower percentage that a wife receives can be partially explained by the fact that Shari'a protects all heirs from disinheritance, not only the wife. Id. at 61. This may even include the couple's parents, siblings, and children, as well as any children born of a husband's polygamous marriages. Id.

(114.) Id. at 60. Ilm al-fara'id, meaning "science of the required or forced shares," is famous for its intricacy and complicated permutations. See Peter Hennigan, Book Review, 15 J.L. & Religion 487, 487 (2001) (reviewing David S. Powers, Studies in Qur'an and Hadith: The Formation of the Islamic Law of Inheritance (1986)) (stating application requires "algebraic mathematics" to implement properly).

(115.) See Brashier, supra note 111, at 90-95 (differentiating between American rule on disinheritance from norms internationally). As Brashier observed, the American tolerance of choosing to totally disinherit children would be anathema in most other parts of the world. Id. The American approach was adopted from English common law, but this approach was long ago abandoned in England, where the inheritance laws were modified in 1938 to mirror the approach taken in most other nations. Id. at 91.

(116.) See Mohammedi, supra note 107, at 63 (suggesting use of religious arbitration to enforce will provisions).

(117.) Id. at 63 ("[P]arties have the advantage of choosing a school ofjurisprudence for ... interpretation.").

(118.) See Stephen Wills Murphy, Enforceable Arbitration Clauses in Wills and Trusts: A Critique, 26 Ohio St. J. on Disp. Resol. 627, 635-37 (2011) (outlining current law on donative arbitration clauses); see also Erin Katzen, Arbitration Clauses in Wills and Trusts: Defining the Parameters for Mandatory Arbitration of Wills and Trusts, 24 Quinnipiac Prob. L.J. 118, 121-22 (2011) (applying contract principles to donative arbitration clauses).

(119.) See supra note 35 and accompanying text (describing contract basis for arbitration law).

(120.) See In re Calomiris, 894 A.2d 408, 409 (D.C. 2006) (refusing to uphold arbitration provision of will). As the court noted, Washington D.C. had adopted the UAA, which requires "'[a] written agreement to submit any existing controversy to arbitration or a provision in a written contract to submit to arbitration any controversy thereafter arising between the parties.'" Id. (quoting D.C. Code [section] 16-4301 (repealed 2009)); see Schoneberger v. Oelze, 96 P.3d 1078, 1079-80 (Ariz. Ct. App. 2004) (holding trust instruments not written contracts subject to statute enforcing contractual arbitration provision), superseded by statute, Ariz. Rev. Stat. Ann. [section] 14-10205 (2012), as recognized in Jones v. Fink, No. 1 CA-SA 10-0262, 2011 WL 601598, at *2 (Ariz. Ct. App. Feb. 22, 2011). But see Ariz. Rev. Stat. Ann. [section] 14-10205 (2012) (statutorily allowing for arbitration provision as of 2011).

(121.) See Murphy, supra note 118, at 662 (outlining recent statutory reform to enforce donative arbitration clauses).

(122.) See id.

(123.) See [section] 14-10205 (providing for enforcement of arbitration in trust instruments); Fla. Stat. Ann. [section] 731.401 (West 2012) (enforcing arbitration clauses in wills and trusts). While the Florida statute applies to wills and trusts, the Arizona statute applies only to trust instruments. See Murphy, supra note 118, at 665-68.

(124.) See Murphy, supra note 118, at 665-68. Florida and Arizona, both popular retirement destinations, are on the cutting edge of trust and estate reform. Id. at 669. Murphy points to the expertise of the probate bars in those states as a factor that helped make the reform successful. Id.

(125.) See Mohammedi, supra note 107, at 62 (discussing lack of case law on point).

(126.) See id. at 63 (suggesting use of arbitration to protect intent of Muslim testator). Martin Shenkman, presenting at the ABA Leadership Conference in October 2007, provided what he believed would be an enforceable version of such a clause:

   It is my express intent that ... my Will be interpreted in
   accordance with the laws of inheritance specified in the Koran. In
   the event of any issue arising as to ... the application of Koranic
   law, I expressly direct and authorize my Executor to consult with
   *KORANIC-AUTHORITY for the resolution of same. If any beneficiary
   ... contests this will ... or brings suit or other action ... such
   contest ... shall be submitted to binding, non-appealable,
   arbitration ... in accordance with the rules of the ... Islamic
   Court to be designated....


See Shenkman, supra note 107, at 39-40.

(127.) See Ariz. Rev. Stat. Ann. [section] 14-10205 (2012) (allowing enforcement of arbitration in trust instruments); see also Fla. Stat. Ann. [section] 731.401 (West 2012) (rendering arbitration clauses enforceable). In Arizona this could only be achieved through the use of a trust, but in Florida it could be a standard will. See Ariz. Rev. Stat. Ann. [section] 14-10205; Fla. Stat. Ann. [section] 731.401.

(128.) See generally Hoballah, supra note 59 (describing Islamic beliefs regarding divorce, inheritance, and marriage). While differing in percentages dispersed and parties' status as mandatory beneficiaries, American and Muslim norms in these areas both focus on providing support to the family members involved. Id.

(129.) See Helfand, supra note 49, at 1252 ("Current U.S. arbitration doctrine provides a hospitable framework for such religious arbitration....").

(130.) See Mona Rafeeq, Comment, Rethinking Islamic Law Arbitration Tribunals: Are They Compatible with Traditional American Notions of Justice?, 28 Wis. Int'l L.J. 108, 137 (2010) (advocating use of Islamic arbitration tribunals in resolution of disputes over mahr agreements); Charles P. Trumbull, Notes, Islamic Arbitration: A New Path For Interpreting Islamic Legal Contracts, 59 Vand. L. Rev. 609, 641 (2006) (endorsing use of Islamic arbitration to resolve disputes arising from Islamic marriage contracts).

(131.) See Katz, supra note 80, at 109 (arguing child's best interests should take precedence over rights of those seeking custody in dispute); Robin Fretwell Wilson, Privatizing Family Law in the Name of Religion, 18 Wm. & Mary Bill Rts. J. 925, 939-44 (2010) (arguing application of privatized religious law negatively affects rights of women and children).

(132.) See 9 U.S.C. [section] 10(a) (2006) (listing standards for vacatur); Lieberman v. Lieberman, 566 N.Y.S.2d 490, 495 (N.Y. Sup. Ct. 1991) (applying voidable standard for arbitration decision that did not comport with "best interests" standard).

(133.) See supra Part II.E (discussing changing trend of arbitration clauses in wills and trust instruments). As Attorney Mohammedi notes, "The lack of a spousal right of election in Islamic wills clashes directly with this well-settled principle under most state laws." Mohammedi, supra note 107, at 61.

(134.) See Mohammedi, supra note 107, at 63 (describing effectiveness of Shari'a arbitration for disposition of mahr agreements).

(135.) See Jabri v. Qaddura, 108 S.W.3d 404, 413 (Tex. Ct. App. 2003) (upholding inclusion of all issues of marital disintegration in arbitration agreement). The Jabri court applied the standing rule that every reasonable presumption should be decided in favor of arbitration to find that all issues incident to the divorce should be presented to the Texas Islamic Court. See id. at 410, 413. Thus, absent clear language to the contrary, litigants seeking to have mahr agreements honored by an arbitration tribunal will likely face the same presumption and subsequently have all legal issues arising from the divorce included within the scope of the arbitration. See id.; see also Encore Prods., Inc. v. Promise Keepers, 53 F. Supp. 2d 1101, 1109 (D. Colo. 1999) ("[A]ny doubts concerning scope of arbitrable issues should be resolved in favor of arbitration.").

(136.) See supra note 43 and accompanying text (outlining limited judicial review allowed by FAA). When combined with the First Amendment limitations required by the religious-question doctrine, the FAA provides extremely limited review of religious tribunal decisions. See Grossman, supra note 10, at 171 (arguing religious-question doctrine further circumscribes limited review permitted by FAA).

(137.) See supra note 91 and accompanying text (contrasting three approaches to custody determinations).

(138.) See Jabri, 108 S.W.3d at 406-07 (giving background of case).

(139.) See Spitko, supra note 89, at 1161 (describing effect on child of civil court rehashing custody issues); see also Glauber v. Glauber, 600 N.Y.S.2d 740, 743 (N.Y. App. Div. 1993) (noting duplication of effort and time required by void approach).

(140.) See Spitko, supra note 89, at 1162 (describing process employed by courts using voidable approach).

(141.) See Fawzy v. Fawzy, 973 A.2d 347, 361 (N.J. 2009) (offering examples of where harm to child would mandate court intervention). As the court stated in Fawzy: "Put another way, where no harm to the child is threatened, there is no justification for the infringement on the parents' choice to be bound by the arbitrator's decision." Id.

(142.) See Katz, supra note 80, at 109-11 (outlining judicial focus on implication of custody decision on child's interests). The modern approach to child custody is referred to as a "child-focused inquiry," and the previous emphasis on rights to a child tends to analogize children to property, which is no longer an accepted legal view. Id.

(143.) See supra Part II.D and accompanying text (describing approaches to custody under Shari'a). Naturally, this does not mean that a Muslim arbitration tribunal would be unable to issue a decision in the child's best interests; rather it points out that the norms of Islam, which focus on parental fitness, would dominate at the expense of the best-interest factors a judge must consider. Id.

(144.) See Spitko, supra note 89, at 1163 (describing use of de novo standard of review in jurisdictions where arbitration of custody voidable).

(145.) Compare Kelm v. Kelm, 749 N.E.2d 299, 302 (Ohio 2001) (dismissing voidable approach as against children's best interests), with Fawzy, 973 A.2d at 349 (holding that right to choose arbitration for custody disputes constitutionally guaranteed).

(146.) See Spitko, supra note 89, at 1163 (assessing policy behind voidable approach). As Spitko notes, "Balanced against the state's duty as parens patriae to protect the child are compelling reasons in support of the state's giving respect to parental autonomy." Id. But this balance has shifted even further toward parental autonomy, as demonstrated in Fawzy, 973 A.2d at 347. See Fox, supra note 90, at 567 (discussing changing trend in custody arbitration). As Fox notes, "[D]ecisions in cases such as Troxel, and ... Fawzy, rely on the assumption that parents, even those who might be experiencing great turmoil ... due to divorce, always know what is best for their children." Id.

(147.) See In re Marriage of Popack, 998 P.2d 464, 469 (Colo. App. 2000) (allowing de novo review of religious arbitrator's decision if challenged under best-interests standard). One issue to consider in this regard is the legal fees associated with a complete de novo review of custody determinations, as review is both expensive and continues to subject children to an adversarial litigation process. See id. The Colorado statute interpreted in Popack assesses all of those fees against the parent who unsuccessfully challenges an arbitration custody determination under the best-interests standard. See id.; Colo. Rev. Stat. [section] 14-10-128.5 (2012) (assigning fees to losing contesting party). While this provision honors the finality that is desirable in custody determinations, it may serve as a deterrent to accessing the courts if an arbitration tribunal reaches an inequitable result. See [section] 14-10-128.5.

(148.) See Lieberman v. Lieberman, 566 N.Y.S.2d 490, 496 (N.Y. Sup. Ct. 1991) (comparing beth din award of child support against judicial finding under best interests). In Lieberman, the court compared the child support finding of the religious arbitration tribunal to what a judge would order to determine whether that decision was in the best interests of the child, with no apparent Establishment Clause entanglement. See id. at 495. Applying the comparison approach to custody determinations would likewise allow the court to avoid entanglement in religious issues but determine if a tribunal's finding comports with established best-interests standards. See id. ; see also Spitko, supra note 89, at 1162-64 (discussing advantages of voidable standard for child's best interests).

(149.) See Spitko, supra note 89, at 1162-64 (arguing voidable standard effectively accounts for best interests of child).

(150.) See Katzen, supra note 118, at 120 ("[U]nlike in contracts, the disputants are almost never responsible for the ... clauses."). Katzen argues that due to the unique nature of trusts and estates, and the lack of privity of contract, legislatures should create limitations on enforcement of donative arbitration clauses in wills and trusts. Id.

(151.) See supra note 126 and accompanying text (discussing recent calls for use of arbitration in Shari'a-compliant wills).

(152.) See Murphy, supra note 118, at 662-68 (outlining recent statutory reform to enforce donative arbitration clauses). The Model Act reads, "A provision in a will or trust requiring the arbitration of disputes between or among the beneficiaries, a fiduciary under the will or trust, or any combination of them, is enforceable." Id.

(153.) See Mohammedi, supra note 107, at 63 (addressing novel use of arbitration clauses in Shari'acompliant wills).

(154.) See id. ("The best solution is for parties to arbitrate all disputes concerning Shariah law...."); Shenkman, supra note 107, at 39 (advocating use of Islamic arbitration tribunals to enforce intent of testator).

(155.) See N.J. Coulson, Succession in the Muslim Family 213-17 (1971) (summarizing various approaches to wasiyya bequests among different schools of Shari'a). Such conflicts could arise over whether the wasiyya bequest can be written, as in the Maliki and Hanbali schools, or whether it must be spoken before two adult male witnesses, or whether the testator has the legal capacity to even make the bequest. Id. at 21516.

(156.) See supra Part II.A (assessing applicability of neutral-principles-of-law approach). In the execution of a will, where the intent of the testator is paramount, it is hard to imagine how a court could resolve a dispute regarding a faith-based will without inquiring into the precepts of that faith, which it is forbidden from doing. Jones v. Wolf, 443 U.S. 595, 595 (1979) (outlining application of neutral-principles-of-law approach); see also supra Part II.A.

(157.) See Mohammedi, supra note 107, at 63 (describing ability of arbitration tribunal to circumvent First Amendment concerns); Shenkman, supra note 107, at 39 (advocating use of qualified arbitration tribunal).

(158.) See supra note 43 and accompanying text (discussing public policy and other grounds for vacatur). It is also clear that any arbitration decision contrary to state statutes on elective shares would fall under the fourth category, "where the arbitrators exceeded their powers," because any decision contrary to applicable state law would have to be vacated. 9 U.S.C. [section] 10(a) (2006); see also supra note 43 and accompanying text.

(159.) See, e.g., In re Brisman v. Hebrew Acad. of the Five Towns & Rockaway, 887 N.Y.S.2d 414, 418-19 (N.Y. Sup. Ct. 2008) (vacating religious arbitration award as contrary to public policy), rev'd, 895 N.Y.S.2d 482 (N.Y. App. Div. 2010); Helfand, supra note 49, at 1255 (noting court will "likely vacate" religious arbitration awards contrary to public policy).

(160.) See Andrew R. Gelman et al., 4 Horner Prob. Prac. & Ests. [section] 71:15 (2012) (defining spousal share). A succinct definition comes from Horner: "Upon renunciation ... the surviving spouse is entitled to one-third of the entire estate if the testator leaves a descendant or one-half of the entire estate if the testator leaves no descendant." Id.

(161.) See Shenkman, supra note 107, at 39-40 (encouraging placement of arbitration clauses in Shari'a-compliant wills). Shenkman recognizes this fact and thus includes in his model a severability provision that would allow for the other provisions of the will to survive, even if the clause is struck down as contrary to public policy. Id.

(162.) See Katzen, supra note 118, at 121-22 (contrasting contracts principles with donative principles behind trusts and wills). But see Murphy, supra note 118, at 645-48 (assessing similarity between theories of trusts and wills and contract theories). Murphy and Katzen both come to the conclusion that contract theories do not fit well into the mold of trust instruments. Id. at 647-48; see Katzen, supra note 118, at 121-22.

(163.) See Murphy, supra note 118, at 646-49 (describing drawbacks of arbitration in wills).

(164.) See Gelman et al., supra note 160, [section] 71:15 (defining statutory share election). The spouse's right to renounce what is provided in the will supersedes the intent of the testator, but it does not destroy the other provisions of the will. Id. [section] 71:11. Other will provisions remain operative upon the property not included within the statutory share of the spouse. Id. As applied to a Shari'a-compliant will, a spouse electing a statutory share would not vitiate the will, but only the provision limiting the spouse's share. Id.

(165.) See George K. Walker, Arbitrating Family Law Cases by Agreement, 18 J. Am. Acad. Matrimonial Law. 429, 510 (2003) (contrasting divorce with arbitration scenarios with little bargaining power).

(166.) See Bambach, supra note 39, at 388 ("The structure of any given arbitration is determined by the parties' agreement...."). In the case of a divorce, this could be through the use of a valid prenuptial agreement or by executing a contract for arbitration after the marriage breaks down. Id.

(167.) See supra note 35 and accompanying text (discussing principles of freedom of contract underlying arbitration). But see Trumbull, supra note 130, at 641-42 (advocating direction of religious disputes to Islamic arbitration tribunals even without explicit contract). Trumbull goes so far as to suggest that courts should imply an arbitration clause where one is not present. Id. at 641. While this might prevent a judge from impermissibly inquiring into religious issues, it would force litigants into religious arbitration to which they never agreed. See id. at 642. This contradicts the contractual basis for arbitration, which requires explicit consent. See Bambach, supra note 39, at 388 (describing contract basis for religious arbitration).

(168.) See Sizemore, supra note 65, at 1090-93 (describing difficulties inherent in assessing mahr agreements under Establishment Clause).

(169.) See supra note 66 and accompanying text (detailing attempts by American courts to treat mahr contracts as prenuptial agreements). Just as any other disputant considering arbitration, a Muslim seeking to enforce her mahr agreement has the opportunity to weigh whether she will receive a more favorable result in an arbitration tribunal or in a civil court. Id.

(170.) See supra note 73 (detailing differing results reached by American courts dealing with religious arbitration selected by divorcing wives). In determining whether to use arbitration, an important consideration may be whether the mahr contemplates divorce in the American sense or according to a religious norm. See Jabri v. Qaddura, 108 S.W.3d 404, 406-07 (Tex. App. 2003) (discussing mahr with $40,000 and one-half share of family home).

(171.) See Katz, supra note 80, at 86-99 (describing distribution of economic resources and property in civil divorce proceedings). This choice, which is fundamental to contracts and therefore arbitration, is imperative to any defensible system of religious arbitration. See supra note 166 and accompanying text (discussing consent necessary for use of religious arbitration tribunals).

(172.) See Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983) ("[A]ny doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration....").

(173.) See id. (holding that all doubts resolved in favor of arbitration). The strict application of these doctrines has the potential to undermine the consent basis for arbitration, as it can force litigants to arbitrate issues unintentionally. See Jabri, 108 S.W.3d at 411 (finding arbitration agreement requires broad application to dispute). The crafting of arbitration agreements therefore requires appreciation of this standard. Id.

(174.) See Helfand, supra note 49, at 1303-04 (arguing in favor of use of arbitration tribunals to resolve conflict).
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