Religious Arbitration, Gender Equality, and the First Amendment: An Interview with Martha Minow

Martha Minow is the 300th Anniversary University Professor at Harvard University and a leading scholar of constitutional law, religious freedom, and inequality. She has taught at Harvard Law School since 1981 and served as its 12th dean from 2009 to 2017. Her scholarship focuses on legal responses to social and political conflict, with particular attention to how law structures inclusion and exclusion across difference. Through her work on dispute resolution and rights, she has shaped debates about the relationship between private ordering, religious practice, and equality under the law.

This interview was conducted in April 2026. It has been edited for length and clarity.

Harvard Undergraduate Law Review (HULR): Again, thank you so much for being here with me today. I want to start with an introductory question and ask what initially drew you to the study of religious law or the First Amendment, and if there was a particular moment that shaped your interest in the inequality that emerges at the intersection of religious and secular law.

Martha Minow (MM): Look, I have been at this business a long time. I teach civil procedure. I am interested in dispute resolution. I am interested in religious freedom. I have taught family law. These are ingredients of the kinds of cases that have sometimes led to religious adjudication, religious arbitration, and religious mediation.

HULR: So, to set the stage, could you briefly explain the legal framework that allows parties to submit to religious forums as a means of conflict resolution here in the United States?

MM: In the United States, there is a federal statute, the Federal Arbitration Act, which authorizes what kinds of entities can provide arbitration, under what circumstances, and be recognized, for example, by the federal courts. Religious institutions are not named, but they are among those that satisfy the requirements.

HULR: I know you touch on this subject in your “Accommodating Gender Equality and Religious Freedom in Multicultural Societies” piece, but I would love to hear more about how certain forms of religious arbitration can often subject women to injustice.

MM: Well, if the substantive norms, and even the procedural elements, that are pursued by a particular religious group do not comport with state and federal law about gender equality, there can be an end run around those laws simply by reference to the religious authorities.

HULR: Right. And would you say there is any particular type of dispute where these concerns are most acute?

MM: Family law.

HULR: In what ways does that manifest?

MM: There are some religions and some versions of some religions that do not guarantee equal treatment of people regardless of their sex. And if that is the guiding set of principles in the religious arbitration, that means there is a genuine risk of undermining what that individual would be eligible for under secular law.

HULR: Moving on to how religious arbitration can sometimes conflict with constitutional protections, how can the state’s role in enforcing religious arbitration awards violate the Establishment Clause?

MM: Well, you know, there are interesting and elaborate discussions about even coming at it from the other direction. How about a state like New York that wants to make it possible for observant Jews, for example, to comply with religious law and also get a secular divorce? So the requirement of a get, that the husband actually gives a document to the wife, has sometimes been an obstacle for people under just ordinary religious practices. And so New York adopted a law much more in line with gender equality that actually said that you cannot get a secular divorce if you have withheld this get. That was challenged as a violation of the Establishment Clause. The challenge failed.

HULR: And why would you argue that that failed? What do you think the reasoning was there?

MM: Well, initially it succeeded, then it failed. It had to be written in a way that it looked like it could apply to any religious group. So if it could apply to any religious group, then it is not elevating one religion over another, and it is not the state establishing a religion. But if there is reference to religious arbitration, not just family law, it could be commercial law, it could be landlord-tenant law, under a framework like the Arbitration Act, that does not establish a religion. That is just a recognition of the lawfulness of non-adjudication.

HULR: And so for women in these religious or Orthodox communities, where laws like this may exist, where you are not allowed to get a secular divorce if you do not grant the get, does that leave them in kind of an adjudicated vacuum, where if they choose to solely pursue their divorce in the religious tribunal, they are subjected to these kinds of forms of inequality that may come from, for example, not allowing women to testify in certain courts, versus if they go the purely secular route, they may be ostracized from their religious communities?

MM: No, it is a real dilemma, and that is why New York adopted that law, to try to put the pressure on the man to actually give the get. So it is up to the woman if she wants to go through with a religious procedure. I do not think a Beth Din would count necessarily, though, as an arbitration. So it depends on what the terms are. That is exactly what New York law was providing for: access to a Beth Din. So it is not under the federal arbitration law, so then it is under state law.

I do not want to get too complicated here, but what would make it establishment, again, is that the Supreme Court has been narrowing and narrowing what counts as establishment, and these days it really has to be coercion, that the state is making somebody do something religious. And here we are talking about someone who has a choice to go to the religious tribunal or not.

HULR: And would that coercive element come into play if these secular courts or the judiciary are actually enforcing the awards that a religious tribunal may have decided on?

MM: I do not think there is coercion of an individual if the court is saying, “We recognize this other entity.”

HULR: Okay, so there is no tension there?

MM: I do not think so.

HULR: On the flip side, if one were to move toward prohibiting religious arbitration entirely because of the concerns that it may raise with questions of inequality, would that then violate the Free Exercise Clause?

MM: It might. It might. On the other hand, there's no guarantee under free exercise to depart from otherwise prevailing law. The standard here, though it has changed over time, the current standard is that free exercise is not violated if there's a rule of general applicability ... and it applies to everybody. So if it applies to everybody that we will recognize arbitration then it's not interfering with someone's free exercise of religion.

HULR: Taking these kinds of challenges into mind, what kind of legal approaches could preserve individuals’ right to practice the full extent of their religion while simultaneously ensuring that the state is not either excessively entangling itself in these questions or turning a blind eye to instances of inequality?

MM: Well, the latter is hard, but I would say that private ordering by contract is the major tool that individuals, members of religious groups, and members of any group have to try to create a sphere that is outside of the government and practice what they want. A wonderful book called The Boundaries of Utopia, by Carol Weisbrod, examines how nineteenth-century utopian communities in the United States used private ordering, contract law, and property law to create a space– a physical space but also a metaphorical one– where they could create their own societies. Pretty interesting, right? And to this day, there are efforts, whether by individual contracts or collective contracts, to try to say, “If you want to work here, you want to live here, this is where you go for your disputes.” And that could definitely include going to a religious tribunal for your disputes. The problem that is harder is the tail end of your question, avoiding coercion and the taking away of secular guaranteed rights. If the coercion is really coming not from the state but from the group, from the peer group, the religious group, the state does not protect people from that.

MM: You know, I certainly know people who have faced this terrible choice: do I have to give up my family, my whole community, to go to a secular school? And the state does not say, “We can protect you from the shunning practices of your group.”

HULR: Do you think that this challenge is particularly salient for women or for disadvantaged groups at large? Who is most vulnerable under these circumstances?

MM: Whoever is disadvantaged under the subgroup’s rules, the religious rules, and in many instances it is women, maybe children, maybe people with disabilities, maybe people who do not have assets.

HULR: Okay, so moving on to maybe potential ways that we could work towards alleviating this
tension. Michael Helfand, a prominent scholar of religious arbitration, often advocates for an expansion of the unconscionability doctrine in religious settings. What do you think about this recommendation? Do you think it could plausibly alleviate both the instances of gender inequality and the tension with First Amendment rights?

MM: Well, it really is precisely in that framework of private ordering that otherwise is largely encouraged by the United States that we can make a private agreement. Unconscionability is one of the exceptions to that, and it does allow courts to rule that the particular agreement is unfair. I think he's done a good job to try to give it some content.
Most courts are reluctant to give carte blanche to judges to decide what they think is a fair
and unfair contract. It's an avenue to try, sure.

HULR: Moving toward different potential avenues, recently, in 2021, a bill was signed into law by Congress ending forced arbitration of sexual assault and harassment. Do you think that something of that sort could be applied in this setting, particularly with respect to status cases or marital disputes, or is there a key difference there?

MM: You know, maybe. There is another really striking book called Praying for Justice by Carol Greenhouse, who studied a religious Christian community where the peer pressure was so strong about not using existing legal remedies, particularly in violence cases, but otherwise as well. So again, there are limits to what the court can offer, other than exit rights, rights to leave a group.

HULR: Alternatively, how would that fare against a proposition to make these status disputes categorically non-arbitrable, in the same way that, for example, criminal cases are non-arbitrable?

MM: Sure. I mean, I am sympathetic to that. I think that where there is a power imbalance, where there is jeopardy to life and liberty, I am not sure that these non-state procedures make sense. Arbitration is outside of the system of precedent and public review.

HULR: Why do you think the courts have allowed for this forum, which is not necessarily subject to these secular protections, to persist for so long, especially when the decisions being made in these channels are as enforceable as those that may come before the judiciary?

MM: I do not have expertise in the enforcement of private arbitration in the context of sexual assault. I do not know of instances of that. Why does the American legal system allow a lot of injustices to go on is, you know, a rather overwhelming question. Typically, it requires some interest group that brings attention to the issue and is able to mobilize coalitions and produce change.

HULR: Naturally, it is a complex issue, and there are so many different avenues that could be pursued. If you, based on the research that you have done, could propose one particular way to try to work toward a more equitable system of arbitration, what do you think would be at the forefront of that mission?

MM: Well, I do not know about any single solution. Arbitration, by definition, involves the selection of decision makers by the parties, not by the state. But one could imagine adding some training requirements, or even some credentialing, or other elements, so that no one would be eligible to serve as an arbitrator who had not gone through training to understand, for example, gender violence.

HULR: And that could remain consistent across all different types of religions and groups that may be trying to submit to that forum?

MM: Exactly, absolutely.

HULR: Concluding this last section, what would you want readers to take away from this issue in particular? What is important to know and to recognize about the gender inequality that can emerge because of this tension between religious and secular law, and how should we think about that going forward?

MM: I think it is really a knotty, difficult problem, and there are potential ways to build change within the groups, the religious groups. That is an avenue that many people find very important, as well as trying to use secular law to make changes there. But to make it even more complicated, if we take the religious issue entirely out of it, there are feminists who argue for non-judicial solutions to domestic violence.

Linda Mills, the current president of NYU and a former student of mine, wrote a book arguing for mediation of domestic violence. I was really against it. But she has some interesting evidence about the loss of agency that many women experience when the criminal system comes into play, prosecutes the alleged abuser, and leads to incarceration, which can undermine family income and relationships. So these are complicated questions even without religion.

HULR: Thank you so much; this has been so helpful and insightful.