Commerce in religion.

• Author: Meyler, Bernadette
• Position: Symposium: The Supreme Court's Hands-Off Approach To Religious Doctrine

INTRODUCTION

Given the multifarious debates about the definition of religion among philosophers, sociologists, and even adherents of religion, (1) it should come as no surprise that secular courts have engaged in advanced acrobatics in the attempt to avoid determining religion's limits and bounds. A central aim of what Kent Greenawalt and others have termed the U.S. Supreme Court's hands-off approach to religious liberty (2) is to avert the problems that might arise if nonreligious courts were to choose among disparate accounts of church doctrine. (3) Similarly fraught questions are posed when a court attempts to decide whether or not a particular set of beliefs and practices counts as religious. Although the law does, in a number of areas, make implicit judgments about what fits within the rubric of religion, the Supreme Court has notoriously refrained from providing a comprehensive account of what "religion" means within the context of the First Amendment. (4) The conception of religion that has emerged from the European Court of Human Rights' (ECHR) adjudication of religious liberty claims under the European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention) (5) partakes of a similarly capacious imprecision. (6) Although the ECHR is charged with the implementation of a treaty, not a Constitution, the European Convention itself has, during the course of its history, assumed increasingly constitutional status within Europe. (7) A variety of factors, including the development of an evolving individual rights jurisprudence and the internalization of ECHR protections into member countries' domestic legal regimes, have contributed to this transformation. (8) On account of the European Convention regime's quasi-constitutional status, the religious jurisprudence of the ECHR provides an instructive comparison to that of the U.S. Supreme Court.

Considering the rhetoric of religious liberty decisions issued by both bodies reveals that, despite in general displaying a shared reluctance to clearly demarcate the boundary between religion and nonreligion, the ECHR and the U.S. Supreme Court have adopted significantly disparate understandings of the compatibility of religion with the commercial sphere. Although the Supreme Court opinions demonstrate a willingness to treat apparently commercial activities as falling outside the purview of the financial immunity accorded to religious activity under taxation and other regulatory schemes, they tend not to separate out religious from commercial activity per se. (9) Hence a practice might be viewed under the American framework as protected by the Free Exercise Clause of the First Amendment (10) but nevertheless be seen as subject to those federal laws applicable to commercial activity. By contrast, in the ECHR context, once a particular religion or a certain part of its purportedly religious enterprises becomes characterized as commercial, this aspect of the religion is quickly deemed either nonreligious or marginal to religious concerns. As a variety of religions come to incorporate more commercial features or to conceive of themselves as engaging in competition with other entities within a marketplace, this jurisprudential difference may produce increasingly significant divergences in the treatment of religious liberty claims within Europe and the United States. (11)

The Supreme Court's decisions themselves do not, however, appear entirely serf-consistent. In some instances--such as the cases involving the proselytizing activities of Jehovah's Witnesses from the World War II period (12)--the Court has eschewed a formal analysis of whether an activity should be considered commercial, instead asking whether the overarching purpose of the activity is religious. (13) On other occasions--including the treatment of the Church of Scientology's practice of "auditing"--the Court has maintained that the simple existence of a quid pro quo, regardless of the value of what is exchanged, renders a transaction commercial, even if it is also viewed as religious. (14) Despite this seeming discrepancy, the cases share an emphasis on the sincerity of the vantage point of the particular actors involved. Whereas the religious purpose behind Jehovah's Witnesses' proselytizing led the Court to determine that they should not be subject to a license tax, (15) it was precisely the Scientologists' belief that they were receiving a valuable service as manifested by the fact that they were willing to pay for auditing that led the Court to refuse them a tax exemption. (16)

This emphasis on sincerity furnishes one of the central reasons why U.S. courts are reluctant to follow the European model. Whereas the Supreme Court displays a concern with individual sincerity--whether that of the founders of a religion, its proselytizers, or its adherents--the ECHR tends to view religion from a much more institutional perspective and to endorse efforts to prevent the consumers of religion from being misled. (17) The contrast roughly reflects the priority placed upon religious organizations in the European context and that given to individual claims of religious liberty in the U.S. system. (18)

Another set of reasons consists in doctrinal distinctions between the ECHR's and the Supreme Court's treatments of the intersection of speech and religion and in the dynamics of the two courts' protection of commercial speech. In cases that could be deemed to involve either freedom of expression or the manifestation of religion, the ECHR has often considered the claim solely as one of speech, whereas the Supreme Court treats the combination of expression and free exercise as entitled to special status as a "hybrid right." (19) In addition, both the EHCR and the Supreme Court view commercial speech less deserving of protection than its noncommercial counterparts. (20) Hence, religious expression that falls within a commercial framework has been devalued as speech meriting reduced regard. (21)

A final potential reason is more speculative. The disestablishment of religion occurred later and more gradually in Europe than in the United States--and it is still not fully completed. (22) Because establishment entails state funding for recognized religious groups, the more prominent religious institutions would be less dependent for survival upon the financial contributions of their adherents in countries maintaining an establishment of religion. Primarily those religions that are new or represent minority denominations not acknowledged by the state would be obliged, in that context, to resort to methods of fundraising that might recall the form of commercial transactions. This circumstance could render it more likely that seemingly commercial conduct of religion would be treated with disfavor in systems, like those present in large parts of Europe, that currently maintain or were historically accustomed to an establishment of religion.

The remainder of this Essay examines how commercial concerns emerge at the moments of founding, propagating, and practicing a religion. In Part I, the Essay explores the U.S. Supreme Court's suspicion regarding state efforts to prosecute religious fraud, a suspicion that lacks parallel within the jurisprudence of the ECHR. Part II then turns to the question of the standards by which the Supreme Court and the ECHR determine whether, if ever, proselytizing can be considered commercial, and how this commercial aspect would affect its legal treatment. Finally, Part III asks what understanding of religious valuation emerges when courts view practices that religious adherents claim are central to their religion as commercial.

1. FRAUDULENT FOUNDING

   Imagine an individual who, upon thinking deeply about the conditions of existence and the world as it appears to us, develops on her own a comprehensive account of life, death, and the place of humankind in the universe. Imagine also that she cannot quite persuade herself to believe in this narrative that she has generated. Nevertheless, falling upon hard times, she realizes that the story is sufficiently captivating that others might find it compelling and that she could profit financially from presenting it as a new religion. After she has collected revenues for ten years from a growing flock of followers, one of these adherents discovers her diary, in which she has written of her scheme and explained that she herself believes none of what she has claimed. Would the disciple, in this case, necessarily discount the entire religion as fraudulent? Or would he instead deem the founder's own belief in the truth of the religious worldview that she had disseminated immaterial?

   According to one view of religious truth, the sincerity of the founder of a religion would not determine the resulting tradition's validity. To the extent that a religious person perceives a divine order, the author of that order need not be--and usually is not--human; furthermore, the human instrument by which the particular order has been revealed may or may not be aware of the significance of her discovery. Insofar as a religious system is deemed transcendent, it therefore remains epistemologically valid prior to its construction by a particular human agent, including the agent who has seemingly founded it. Even if the bad faith of the person who established the religion in question has been definitively established, individual believers could still be justified in continuing to adhere to its principles.

   The 1944 U.S. Supreme Court case of United States v. Ballard (Ballard I) (23) has entered the law and religion pantheon for the general proposition that courts may not determine the truth or falsity of a religious claim. (24) What is somewhat less remarked upon is the majority surprising conclusion that, although a decision on truth or falsity might be impermissible, a jury could evaluate the sincerity of the religious adherent's belief in...