RELIGIOUS FREEDOM THROUGH MARKET FREEDOM: THE SHERMAN ACT AND THE MARKETPLACE FOR RELIGION.

• Author: Richman, Barak D.
• Position: Special Issue on Antitrust Law

TABLE OF CONTENTS INTRODUCTION 1525 I. PARALLEL LANGUAGES: THE SHERMAN ACT IN THE 1526 CONSTITUTIONAL SCHEME A. The Quasi-Constitutional Language of the 1527 Sherman Act B. The Consumer-Oriented Language of the Religion Clauses 1529 C. The Ministerial Exception 1531 II. FREEDOM IN A RELIGIOUS MARKET 1534 A. Markets and Nonmarket Values 1535 B. The Case of a Religious Cartel 1537 C. Religious Life in a Free Market 1540 CONCLUSION 1543 INTRODUCTION

During the only recorded debate on the First Amendment's Religion Clauses in the House of Representatives, James Madison spoke of the concern that "one sect might obtain a pre-eminence, or two combine together, and establish a religion to which they would compel others to conform." (1) He was referring to the danger of a government being controlled by a particular religious denomination, and thus advocated an Establishment Clause that would prevent a ruling coalition from imposing its religious will on others. (2) But his words also speak to the dangers of dominant sects asserting private power--either through unilateral or cartel arrangements--and suppressing the religious preferences of minorities through nongovernmental means.

The chief legal weapon available to combat the abuse of concentrated private authority is the Sherman Act. (3) It is explicitly designed to counteract powerful economic or professional entities from constraining the preferences and dynamism of individual creativity. (4) Thus, when religious organizations pursue private arrangements to preempt or constrain the ability of individuals or smaller groups from pursuing their own religious freedoms, the Sherman Act is not only an appropriate remedy but one that is naturally encouraged by the spirit and jurisprudence underlying the First Amendment. (5)

This Article follows prior work that examined certain restraints by private religious organizations and concluded that, as a doctrinal matter, the First Amendment did not protect these organizations from antitrust liability. (6) This Article offers a stronger argument: First Amendment values demand antitrust enforcement. Because American religious freedoms, enshrined in the Constitution and reflected in American history, are quintessentially exercised when decentralized communities create their own religious expression, the First Amendment's Religion Clauses are best exemplified by a proverbial marketplace for religions.

The Article first examines how the antitrust case law has developed to incorporate constitutional language, illustrating the Sherman Act's importance to the constitutional framework and the natural application of antitrust law to secure constitutional values. (7) It then examines Religion Clause cases and reveals how centrality of choice and personal preference illuminate First Amendment jurisprudence. (8) This emphasis on choice, much like the reverence afforded to consumers in antitrust cases, is especially heightened when religious organizations make hiring decisions--thus acting as both religious and economic actors--as illustrated in the ministerial exception cases. (9) The Article concludes that the Religion Clauses and the Sherman Act reinforce each other, offering effective preservation of religious liberty against public and private authority alike.

1. PARALLEL LANGUAGES: THE SHERMAN ACT IN THE CONSTITUTIONAL SCHEME

   The Supreme Court's antitrust jurisprudence closely parallels its Establishment Clause jurisprudence's focus on the importance of individual choice to our constitutional scheme. (10) This Part briefly reviews the Court's emphasis on personal choice in both its antitrust and Establishment Clause cases. (11) It then focuses on the importance that the Court places on congregations being allowed to choose their own clergymen free from outside influence. (12)

   1. The Quasi-Constitutional Language of the Sherman Act

      When the United States Supreme Court called the Sherman Act "the Magna Carta of free enterprise" in 1972, (13) it latched onto a telling metaphor that it has only doubled down on in the years since that decision. The metaphor reflected the Supreme Court's belief that the Sherman Act amounted to more than a typical statutory expression from Congress, but instead embodied values that reflected the core of American democracy. (14) The Court's most current invocation of the Sherman Act in quasi-constitutional language was its recent ruling in North Carolina State Board of Dental Examiners u. Federal Trade Commission, in which the Court articulated the relationship between the Sherman Act and the power of the states in our federalist system. (15) The Court reiterated the Sherman Act's centrality in our market democracy, stating that "[f]ederal antitrust law is a central safeguard for the Nation's free market structures. In this regard it is 'as important to the preservation of economic freedom and our free-enterprise system as the Bill of Rights is to the protection of our fundamental personal freedoms.'" (16)

      This language reflects the Court's understanding that the Sherman Act is central to the nation's constitutional framework. (17) For that reason, the North Carolina Dental Court weighed carefully the relationship between the Act and the states. (18) The majority concluded that the Sherman Act constrains state autonomy, (19) thereby benefitting the states and their citizens. (20) The majority observed that "[t]he antitrust laws declare a considered and decisive prohibition by the Federal Government of cartels, price fixing, and other combinations or practices that undermine the free market." (21) Specifically, the majority noted, "[t]he Sherman Act serves to promote robust competition, which in turn empowers the States and provides their citizens with opportunities to pursue their own and the public's welfare." (22) The dissent, on the other hand, speaking more in constitutional theory than antitrust doctrine, noted the unique constitutional role of states vis-a-vis federal antitrust policy. (23) Justice Alito, writing for the dissent, argued that "[i]n a dual system of government in which, under the Constitution, the states are sovereign, save only as Congress may constitutionally subtract from their authority, an unexpressed purpose to nullify a state's control over its officers and agents is not lightly to be attributed to Congress." (24) Indeed, Justice Alito continued, when the Sherman Act was first enacted "in 1890, it would have been a truly radical and almost certainly futile step to attempt to prevent the States from exercising their traditional regulatory authority, and [we have previously] refused to assume that the Act was meant to have such an effect." (25)

      The case is a vivid illustration of both the frequency of constitutional language in Sherman Act jurisprudence and the constitutional elements that are central to implementing antitrust policy. (26) In short, the Sherman Act has come to represent a distinct part of the operation of our constitutional scheme, and its application is reflected in a quintessentially constitutional debate over the degree to which free market policies constrain state power.

   2. The Consumer-Oriented Language of the Religion Clauses

      The Sherman Act's quasi-constitutional status relates less to a judicial fidelity to neoliberal notions of market efficiency than to a deference to individual choice. (27) The Court's treatment of a consumer's freedom relates to its treatment of other individual prerogatives in a democracy, in particular the constitutional protections cemented in the First Amendment. (28) At the heart of both the First Amendment and the Sherman Act is the protection of individual choice.

      The language of individual choice, as an expression of individual freedom, is central to the Court's understanding of the Religion Clauses. In an opinion concurring with the Court's conclusion that mandated prayer in public schools is unconstitutional, Justice Brennan remarked:

      The choice which is thus preserved is between a public secular education with its uniquely democratic values, and some form of private or sectarian education, which offers values of its own. In my judgment the First Amendment forbids the State to inhibit that freedom of choice by diminishing the attractiveness of either alternative--either by restricting the liberty of the private schools to inculcate whatever values they wish, or by jeopardizing the freedom of the public schools from private or sectarian pressures. The choice between these very different forms of education is one--very much like the choice of whether or not to worship--which our Constitution leaves to the individual parent. It is no proper function of the state or local government to influence or restrict that election. (29) The key sentence in the above excerpt deserves repeating: "In my judgment the First Amendment forbids the State to inhibit that freedom of choice." (30) In Justice Brennan's eyes, the constitutional violation occurred by denying individual choice in a setting in which various religious expressions were available. (31) The centrality of individual choice within a diversity of religions has not only been echoed in subsequent Court rulings, but the essence of choice has also been fused to the very foundation of First Amendment freedoms. (32) The Court summarized its Religion Clause rulings in a succinct connection between religious choices and the nation's constitutional fabric: "The rule of th[e]se cases, one which seems fairly implicit in the history of our First Amendment, is that the government may not displace the free religious choices of its citizens by placing its weight behind a particular religious belief, tenet, or sect." (33)

      In Kedroff v. Saint Nicholas Cathedral of the Russian Orthodox Church in North America, the Court made clear that the primacy of religious choice applies both to individuals and religious organizations, whose autonomy to make their own decisions in accordance to their...