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Monday, November 12, 2012

The Varieties of Co-Religionist Commerce

In my last post, I described a bit about co-religionist commerce: that is, instances where people engage in conduct that simultaneously implicates both religious and commercial interests.  My sense is that many of the recent hot-botton questions about the relationship between law and religion stem, to some degree, from the difficulties in determining how to treat co-religionist commerce.

So, for example, some of the key debates regarding the scope of the ministerial exception focus on determining who is a minister, what is a church and how do you identify pretextual religious claims. Resolving such issues is complex particularly because so much hinges on differentiating employment relationships that are best understood as related to the core mission of a religious institution and relationships that are better understood as part of the commercial activities of an institution (i.e. think about the range of employees at a religiously affiliated hospital).    

Similarly, one of the worries about the contraception mandate is that it, as a blanket rule, provides no protection to for-profit entities regardless of the basis for the conscience claims.  Some critics have been particularly disturbed by the assumption that religious conscience seems to be taken less seriously when expressed in the context of commercial conduct (Rob Vischer presented a great paper on this issue at the recent "Freedom of the Church in the Modern Era" conference hosted by the University of San Diego School of Law Institute for Law & Religion).

But not all types of co-religionist commerce are the same.  In fact, part of the problem in figuring out how to disentangle the various interest at stake in co-religionist commerce is precisely because there isn't a one-size-fits-all answer.  In my next post, I hope to differentiate between institutional and non-institutional claims of co-religionist commerce - and explain how that helps in building an answer to the question.

Posted by Michael Helfand on November 12, 2012 at 02:29 PM | Permalink

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Why don't you also deal with the Amish religion's total exemption from compulsory Obamacare?

Posted by: Jimbino | Nov 12, 2012 5:50:27 PM

With all due respect to the Amish, it is a self evident truth that the Amish do not really participate in The Public Square, so if one desires to limit Religious Freedom and thus quiet the Religious voice in the public square, no need to involve the Amish, at least, not at this point in Time.

Posted by: N.D. | Nov 13, 2012 10:50:28 AM

Who is it that, besides the Amish, who don't "participate in the public square"? Mennonites, Brethren, FLDS, Gypsies, Atheists, death-row inmates, children and the comatose?

Seems your "public square" is a WASPy one that the Roman Catholics and Muslims, Blacks and Hispanics, are fighting to enter or control.

Many of the rest of us, me included, will fight to opt out!

Posted by: Jimbino | Nov 13, 2012 4:07:56 PM

More specifically, how do you propose to treat us secularists who resent the special privilege granted the religionists when it comes to their:

1. Tax-exempt status?
2. Exclusive chaplaincies in prisons, hospitals and military?
3. Crucifixes hanging over our heads in our tax-supported hospitals?
4. Sunday "blue laws"?
5. Hanging their Ten Commandments in schools and courtrooms and placing their icons and graven images in public lands?
6. Polluting hotel rooms with Gideon Bibles?

Posted by: Jimbino | Nov 13, 2012 4:30:59 PM

Jimbino, even if you do not view it as a special privilege, the same special privilege exists for all persons living in this Nation, as we are One Nation, Under God, and thus Indivisible, with Liberty and Justice for all. Our fundamental, unalienable Rights that have been endowed to us from God are unalienable, even if you do not want to accept this special privilege.

Posted by: N.D. | Nov 13, 2012 11:45:48 PM

It's not necessary to rest our system of rights on the belief of God. Rights can be based on what is determined to be fundamental to liberty as a result of the experience of society as a whole.

Tax exemption occurs for various reasons; religious institutions might meet neutral criteria. "Exclusive" chaplaincies should not occur but the religious needs (as honored by the 1A) of isolated people should be honored, including if they are non-God based like some Unitarians, e.g., Government endorsed religious displays should not be allowed -- it is a sort of establishment. A day chosen for rest is acceptable if exceptions are made for those who have another day. Gideon Bibles allowed by private hotel rooms is not a government issue.

As to the OP "religious conscience seems to be taken less seriously when expressed in the context of commercial conduct" should be applied evenhandedly. The "commercial conduct" is more public, so yes, private religious beliefs at times is less protected, if neutral regulations are present. But, the selective concern for non-believing employees, non-ministerial employees, including those whose own work and salaries pay for health insurance is ignored by some for the much less oppressive threat to "religious conscience" of the employers.

As to the Amish, the Amish don't just stay on their farms. They very well interact in various ways in the public square, including at times hiring non-Amish employees, selling goods to other people, purchasing various supplies, traveling on public roads, etc. I don't know what "really" means therefore.

Posted by: Joe | Nov 14, 2012 10:24:01 AM

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