The Varieties of Co-Religionist Commerce IV

So I thought I'd finish up my ramblings discussion of "co-religionist commerce" by raising some of the challaneges posed by co-religionist commerce in the non-institutional context.  As I mentioned in some of my previous posts, institutional co-religionist commerce is complex because it is often hard to answer questions like what is a religious institution, who is a  minister and what is religious conduct when you have institutions that are simultaneously trying to achieve religious and commercial objectives.  I actually had a student in my Law & Religion seminar present her paper this past week arguing that these problems were likely to proliferate in coming years given the rise in the number of megachurches in the United States, which frequently aim to provide both religious and commercial services to their members.  

On the other end of the co-religionist commerce spectrum you find non-institutional instances of this problem.  For non-institutional co-religionist commerce, think of two private parties that have a dispute over the meaning of a legal instrument with religious terminology.  As examples, consider an agreement that incorporates the "regulations of Speyer, Worms and Mainz," or a will that asks for property to be divided up in accordance with "Sharia law" or a child custody agreement that prohibits a parent from taking the child to services "contrary to the Jewish faith."   Courts have resisted interpreting such legal instruments for fear that doing so would entail impermissibly resolving a religious question in violation of the Establishment Clause.  

While I've criticized this doctrinal conclusion here, I thought I'd also mention that I'm currently working on a new project with Barak Richman (working draft title: "On Religion and Money") where we suggest that the problems faced by courts in this context is actually the result of two different doctrinal trends. 

The first is something I've taken to calling Establishment Clause creep.  The term captures what I take to be a growing trend where courts are increasingly expanding the scope of claims that the religious question doctrine prohibits them from adjudicating (my favorite example can be found in this New Jersey's Court dismissal of a defamation claim).  The general concern expressed by courts in tis context is that the Establishment Clause prohibits courts from making anything resembling an objective determination regarding religious law, doctrine, practice and even social trends within a religious community.   

One natural move that courts might make in order to avoid the religious question doctrine, but still resolve the case, is to avoid objective determinations by instead investigating the subjective intent of the parties (think here of trying to use subjective intent to interpret a disputed religious term in a contract).  In fact, there are a variety of contract doctrines that might help in these circumstances to resolve the dispute - such as course of dealing and course of performance - without requiring the court to render some sort of objective determination regarding religious law or doctrine.  

Courts, however, rarely make this move, which is consistent with the second doctrinal trend implicated here: the New Formalism.  As expressed by a number of scholars (e.g. here), this New Formalism rejects the notion that courts should look to customary norms, notions of equity, and relational principles when interpreting and enforcing contractual arrangements.  In so doing, it expresses strong skepticism of looking to the subjective intent of the parties - or interpretive tools like course of dealing and course of performance - to interpret contracts.  

Together, thes two trends - Establishment Clause creep and the New Formalism - have made it difficult for courts to address non-institutional co-religionist commerce.  On the one hand, Establishment Clause creep has led to judicial avoidance of any inquiries that approach rendering an objective determination regarding religious custom, doctrine or practice.  And on the other hand, embracing the New Formalism prevents courts from using subjective measures to interpret and enforce non-institutional co-religionist commerce.  

So what to do?  Well, we're still working on providing some thoughts on how we would want courts to better address claims implicating non-institutional co-religionist commerce.  But part of the solution surely will be pushing back against both of these trends to find a bit more space for courts to better resolve cases that implicate both religious and commercial insterests.