294
Thomas, J., dissenting
the plaintiffs to their promise not to take their claims straight to court, while § 4 holds the defendants to their promise to submit to arbitration rather than making the other party sue them. Had this case arisen in one of the "courts of the United States," it is § 3 that would have been relevant. Upon proper motion, the court would have been obliged to grant a stay pending arbitration, unless the contract between the parties did not "evidenc[e] a transaction involving [interstate] commerce." See Bernhardt, supra, at 202 (holding that § 3 is limited to the arbitration agreements that § 2 declares valid). Because this case arose in the courts of Alabama, however, petitioners are forced to contend that § 2 imposes precisely the same obligation on all courts (both federal and state) that § 3 imposes solely on federal courts. Though Southland supports this argument, it simply cannot be correct, or § 3 would be superfluous.
Alabama law brings these issues into sharp focus. Citing "public policy" grounds that reach back to Bozeman v. Gil-bert, 1 Ala. 90 (1840), Alabama courts have declared that pre-dispute arbitration agreements are "void." See, e. g., Wells v. Mobile County Bd. of Realtors, 387 So. 2d 140, 144 (Ala. 1980). But a separate state statute also includes "[a]n agreement to submit a controversy to arbitration" among the obligations that "cannot be specifically enforced" in Alabama. Ala. Code § 8-1-41 (1975). Especially in light of the Gregory v. Ashcroft presumption, § 2—even if applicable to the States—is most naturally read to pre-empt only Alabama's common-law rule and not the state statute; the statute does not itself make executory arbitration agreements invalid, revocable, or unenforceable, any more than the inclusion of "[a]n obligation to render personal service" in the same statutory provision means that employment contracts are invalid in Alabama. In the case at hand, the specific-enforcement statute appears to provide an adequate ground for the denial of petitioners' motion for a stay.
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