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.