Are You Losing Access to the Court System When You Join a Church?
Recent sexual assault claims within the American church have highlighted often-overlooked dispute resolution provisions in many church membership agreements. After a traumatic experience arising from misconduct in the church, many are shocked to learn they have waived the right to pursue claims in courts. Buried in their church membership agreement is a waiver barring court claims and instead requiring “Christian conciliation.” Christian conciliation is, essentially, binding arbitration conducted before a Christian arbitrator.
Arbitration is a private trial where a third party acts as judge, hears each case, and makes a determination. Unlike traditional court, arbitration is often confidential, with virtually no ability to appeal. The Institute for Christian Conciliation (“ICC”), publishes Christian arbitration rules. Though the ICC rules explicitly espouse Christian values, in terms of core legal procedure, they mirror secular arbitration rules, even down to the confidentiality provisions: “[A]ll communications that take place during the conciliation process . . . shall be strictly confidential . . . . [A]rbitration decisions shall be confidential . . . .” 2019 ICC Rules §16.
As a Christian attorney who has tried cases both in arbitration and traditional courts, I find mandatory religious arbitration clauses in church membership agreements to be extremely troubling and beyond biblical justification. These clauses allow parties to have a secular court remove a case from public court and into a confidential, virtually unreviewable religious forum. Few church members understand that their membership waives substantial legal rights.
Does the Bible support barring access to the courts?
First Corinthians 6: 1–8, states:
When one of you has a grievance against another, does he dare go to law before the unrighteous instead of the saints? Or do you not know that the saints will judge the world? And if the world is to be judged by you, are you incompetent to try trivial cases? Do you not know that we are to judge angels? How much more, then, matters pertaining to this life! So if you have such cases, why do you lay them before those who have no standing in the church? I say this to your shame. Can it be that there is no one among you wise enough to settle a dispute between the brothers, but brother goes to law against brother, and that before unbelievers? To have lawsuits at all with one another is already a defeat for you. Why not rather suffer wrong? Why not rather be defrauded? But you yourselves wrong and defraud — even your own brothers! (ESV)
Seeking to obey this mandate to avoid lawsuits, many churches have unwisely given way to a wholesale adoption of secular arbitration practices contained in the conciliation rules.
I see four areas where mandatory arbitration/conciliation eclipses 1 Corinthians 6 or creates unnecessary opportunities for abuse.
1. Mandatory nature of these provisions.
Mandatory arbitration/conciliation clauses can involuntarily force a claim out of the justice system and into confidential resolution. Ironically, these agreements grant the right to employ a secular court to force a claim into conciliation — arguably contradicting 1 Corinthians 6 by using court against a fellow Christian. Filing a motion to compel religious arbitration looks less like a church being a “peacemaker” and more like using a one-sided contract to its advantage. (While both sides can invoke the arbitration clause, practically speaking, it is usually the institutional party — here, the church — seeking arbitration to avoid public court.)
How many church members genuinely understand these arbitration clauses? When churches involuntarily enforce these contracts, does it advance the church’s reputation as a beacon of justice? Or would it appear that the church is simply enforcing fine print of a contract to avoid public accountability? Instead of enforcing these contractual measures against its own members, “Why not rather suffer wrong? Why not rather be defrauded?” (1 Corinthians 6:7).
2. Involuntary Confidentiality.
I struggle to see any biblical basis for requiring resolution of claims against the church to be conducted in secret. When the church moves a secular court to force confidential arbitration, this creates the appearance of avoiding accountability. Mandated confidentiality, further, creates an opportunity for wrongdoers (including institutions) to hide behind confidential case after confidential case, potentially enabling entrenched patterns of misconduct. The church should demonstrate openness and accountability — not suing to enforce contractual secrecy.
3. Creating potential for unjust outcomes.
Many vulnerable parties (1) will have no idea the church is asking them to sign a waiver of rights regarding access to the justice system, and (2) not understand that, unlike taxpayer-funded public courts, arbitration costs are paid for evenly by the parties. Arbitration costs alone, (excluding attorney’s fees) often force parties to consider dropping their claims. The cost-splitting rules leave potential for a well-funded institutional party to take advantage of vulnerable claimants.
4. Christian conciliation is an inappropriate forum for some claims.
Finally, the public interest in exposing systematic wrongdoing sometimes trumps the benefit of intra-church dispute resolution. In cases where churches have engaged in wide-ranging misconduct or where allegations involve prominent figures in the faith community, a private religious forum may lack, or appear to lack, impartiality.
Recommendations
The problems with Christian conciliation stem from areas where conciliation exceeds the biblical mandate. I recommend eliminating the non-biblical aspects: confidentiality clauses and mandatory arbitration clauses. Specifically:
1. Churches should eliminate mandatory conciliation/arbitration clauses from church membership agreements.
2. Churches should encourage voluntary Christian conciliation or mediation.
3. If churches still desire to use mandatory conciliation, they should exempt claims for certain serious misconduct and claims over a certain dollar amount.
4. Churches should voluntarily waive confidentiality clauses in conciliation proceedings — or show a biblical basis for enforcing secrecy on unwilling parties. (I have yet to see one.)
5. Congregations should openly discuss their dispute resolution policies and whether they should be modified. Members should, at a minimum, not be unwittingly waiving legal rights.
The church must avoid conduct that calls into question whether it values liability protection over the rights of potential victims of misconduct. When churches indiscriminately adopt the same liability-deflecting tactics used by secular parties, in the words of Paul, it is “already a defeat for you.” (1 Corinthians 6:7).
