'THE PECULIAR GENIUS OF PRIVATE-LAW SYSTEMS': MAKING ROOM FOR RELIGIOUS COMMERCE.

AuthorHelfand, Michael A.
PositionTaking Stock of the Religion Clauses

ABSTRACT

Religious commerce has long sat uncomfortably at the nexus of public law and private law. On the one hand, such transactions invariably have garden-variety commercial objectives, which are best achieved and regulated through the law of tort, contract, and property. And yet the intermingled religious aspirations of the parties often inject constitutional concerns that muddy the waters. To navigate these challenges, the Supreme Court famously embraced the neutral principles of law framework, which encouraged parties to draft private law agreements using secular terminology. Thus, while the Establishment Clause provided the outer boundaries for what was legally possible, the neutral principles of law framework made space for religion under the umbrella of private law.

This equilibrium between public and private law, however, has become increasingly unsettled. As the permutations of contracting for religion have proliferated, courts and scholars have searched for tools to regulate what they view as problematic outcomes. At the core of such criticisms is an instinct that judicial enforcement of privatized religious obligation--whether in the form of religious contracts generally or religious arbitration specifically--undermines a principled commitment to separation of church and state. In turn, courts and scholars have reached into their constitutional toolboxes, searching for legal doctrines that might eliminate the kinds of outcomes they view as offending fundamental constitutional principles.

The goal of this Article is to argue that this public law instinct--the notion that regulating the field of religion and private law is best achieved through the expansion of constitutional prohibitions--is deeply misguided. And this is true not only for standard religious commerce, but also--and especially---for the religious commerce safety valve, religious arbitration. Ultimately, successfully merging religion and private law requires promoting doctrines that, on the one hand, address legitimate concerns, but do so without eliminating the very legal terrain made possible by the neutral principles of lawframework. Failure to do so--and reflexively reaching into our constitutional toolbox--leaves both courts and scholars without the tools they need to meet these legal challenges.

INTRODUCTION I. WHAT'S AT STAKE? II. ENFORCING RELIGIOUS COMMERCE III. ARBITRATING RELIGIOUS COMMERCE IV. PROTECTING RELIGIOUS COMMERCE A. Nondelegation and Legal Sophistication B. Substantial Burdens and Freedom of Contract C. Reverse Entanglement and Identifying Religious Commerce CONCLUSION INTRODUCTION

As the saying goes, when you are a hammer, everything looks like a nail. Unfortunately, what is true of carpentry is also becoming increasingly true of the law and religion field. For lawyers and scholars alike, questions of law and religion are viewed through the prism of public law--and even more specifically, the religion clauses of the First Amendment. This, to be sure, is quite natural. The Free Exercise and Establishment Clauses provide the dominant framework for regulating the relationship between church and state.

But this constitutional focus ultimately neglects the ever-increasing subset of private law cases and questions that stand at the crossroads between religion and commerce. (1) In such cases, parties enter a bargained--for exchange where one of the agreed performances is, by its terms, religious. Thus, whether it is a pastor's employment contract, the purchase of kosher food, or a religious arbitration agreement, parties can choose to protect their religious expectations not through the demands of public law, but through the instruments of private law. (2)

The challenge in such circumstances is ensuring that religious agreements avoid the constitutional pitfalls that often lead to nonenforcement. Notable among such pitfalls is the Establishment Clause's religious question doctrine which prohibits courts from resolving cases where there is an "underlying controversy over religious doctrine and practice." (3) Accordingly, courts must "avoid ... incursions into religious questions that would be impermissible under the [FJirst [AJmendment," (4) including "interpret[ing] ... ambiguous religious law and usage." (5)

As an antidote to the religious question doctrine, the Supreme Court famously embraced the neutral principles of law framework, which "relies exclusively on objective, well-established concepts of ... law familiar to lawyers and judges." (6) At its core, this approach encourages parties to draft private law agreements using secular terminology, thereby allowing courts to resolve disputes implicating such agreements without threatening Establishment Clause principles. (7) In this way, the neutral principles of law framework provides parties seeking to protect their religious expectations through private agreement with a clear option for ordering their affairs going forward. By taking advantage of "the peculiar genius of private-law systems in general--flexibility in ordering private rights and obligations to reflect the intentions of the parties" (8)--parties can draft secular provisions that will be interpreted and enforced in court. Thus, while the strictures of the Establishment Clause provide the outer boundaries for what is legally possible, the neutral principles of law framework makes space for religion under the umbrella of private law.

This equilibrium between public and private law, however, has become increasingly unsettled. As the permutations of contracting for religion have proliferated, (9) courts and scholars have searched for tools to regulate what they view as problematic outcomes. At the core of such criticisms is an instinct that judicial enforcement of privatized religious obligation--even where such obligations are mutually agreed upon--undermines a principled commitment to separation of church and state. In turn, courts and scholars have reached into their constitutional toolboxes, searching for legal doctrines that might eliminate the kinds of outcomes they view as offending fundamental constitutional principles.

The goal of this Article is to argue that this public law instinct--the notion that regulating the field of religion and commerce is best achieved through the expansion of constitutional prohibitions--is deeply misguided. Ultimately, successfully merging religion and private law requires promoting doctrines that, on the one hand, address legitimate concerns, but do so without eliminating the very legal terrain made possible by the neutral principles of law framework. Failure to do so--and reflexively reaching into our constitutional toolbox--leaves both courts and scholars without the tools they need to meet these legal challenges.

This Article expands on this central theme, providing examples of where courts and scholars would do well to refocus on private law. It begins, in Part I, by describing the neutral principles of law framework and how the Court embraced this framework so as to make space for religious commerce. Part II then considers how courts should leverage private law techniques to interpret and enforce a wider range of claims implicating religious forms of commerce. This turn to private law would, thereby, stave off attempts to expand the scope of constitutional limitations on religious adjudication. Part III and the Conclusion then explore how the religious commerce safety valve--religious arbitration--has been increasingly beset by scholarly criticism that advocates for expanding the constitutional constraints of public law so as to restrict parties' ability to submit disputes for privatized religious adjudication. In so doing, these critics not only underestimate the ability of private law doctrines to police the procedural and substantive fairness of religious arbitration, they also proffer alternative public law 'solutions' that are likely to do damage to the aspirations of parties in the religious commercial marketplace.

  1. WHAT'S AT STAKE?

    When we talk about how the law protects religious liberty, we naturally think, first and foremost, about the First Amendment. (10) Accordingly, determining the scope of legally enforceable religious rights requires resort to judicial interpretation of the religion clauses. And, as judicial views of rights afforded by the religion clauses ebb and flow, so does the range of protections granted various religious practices.

    But wholesale reliance on public law to protect and circumscribe religious rights neglects the various ways in which parties might use private law as an alternative method to ensure that the law protects religious objectives and aspirations. In this way, private law--which might be broadly defined as "the substantive law which establishes legal rights and duties between and among private entities" (11)--holds the potential to empower private parties to generate legal obligations with respect to religious aspirations in ways beyond what public law--which tracks "the substantive law defining the legal obligations of private individuals or entities to the government" (12)--might otherwise afford.

    The intersection of private law and religion covers a range of cases, including contracts, property, and tort. (13) In such cases, private parties enter into legal transactions or incur legal obligations that ultimately incorporate both commercial and religious objectives. Thus, for example, when parties enter into a religious contract, they seek to secure a contractual right to either a product or a service that includes some sort of religious requirement or performance. Because these requirements, obligations or performances are--in part--religious, the most natural mechanism to memorialize them in a contract or other commercial instrument is through religious terminology. However, incorporating religious terminology into contracts raises an important constitutional conundrum.

    Pursuant to the...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT