The Challenge of Co-Religionist Commerce

This Article addresses the rise of co-religionist commerce in the United States—that is, the explosion of commercial dealings that take place between co-religionists who intend their transactions to achieve both commercial and religious objectives. To remain viable, coreligionist commerce requires all the legal support necessary to sustain all other commercial relationships. Contracts must be enforced, parties must be protected against torts, and disputes must be reliably adjudicated. Under current constitutional doctrine, co-religionist commercial agreements must be translated into secular terminology if they are to be judicially enforced. But many religious goods and services cannot be accurately translated without religious terms and structures. To address this translation problem, courts could make use of contextual tools of contract interpretation, thereby providing the necessary evidence to give meaning to co-religionist commercial agreements. However, contextual approaches to co-religionist commerce have been undermined by two current legal trends—one in constitutional law, the other in commercial law. The first is New Formalism, which discourages courts from looking to customary norms and relational principles to interpret commercial instruments. The second is what we call Establishment Clause Creep, which describes a growing judicial reticence to adjudicate disputes situated within a religious context. Together, these two legal developments prevent courts from using context to interpret and enforce co-religionist commercial agreements. This Article proposes that courts preserve co-religionist commerce with a limited embrace of contextualism. A thorough inquiry into context, which is discouraged by both New Formalist and many Establishment Clause doctrines, would allow courts to surmise parties\u27 intents and distinguish commercial from religious substance. Empowering the intent of co-religionist parties and limiting the doctrinal developments that threaten to undermine co-religionist commerce can secure marketplace dealings without intruding upon personal faith

How the Diversity Rationale Lays the Groundwork for New Discrimination: Examining the Trajectory of Equal Protection Doctrine

This Article advocates differentiating between two distinct categories of equal protection cases. The first-what I have termed indicator cases-are instances where courts consider whether there are sufficient factual indications to demonstrate the existence of aprimafacie equal protection violation. The second-violation casesare instances where courts consider, having already determined the existence of an equal protection violation, whether there is a good enough justification for a prima facie equal protection violation. Unfortunately, the Supreme Court has not differentiated between these two different types of cases. This has led to a string of decisions where the Supreme Court has erroneously looked for justifications for non-existent Equal Protection Clause violations, when in fact it should have been looking for indications to determine whether there actually had been an Equal Protection Clause violation. But even more troubling are some of the suggestions on the horizon; for example, the diversity rationale adopted by the Court as sufficient to survive strict scrutiny could serve to justify discriminatory police tactics such as racial profiling. By clearly outlining the above distinction and its analytic ramifications, this Article hopes to undermine such arguments built on the diversity rationale as wholly unfounded

Between Law and Religion: Procedural Challenges to Religious Arbitration Awards

This Article explores the unique status of religious law as a hybrid concept that simultaneously retains the characteristics of both law and religion. To do so, the Article considers as a case study how courts should evaluate procedural challenges to religious arbitration awards. To respond to such challenges, courts must treat religious law as law when defining the contractually adopted religious procedural rules, but treat religious law as religion when reviewing precisely what the religious procedural rules require. On this account, constitutional and arbitration doctrine combine to insulate religious arbitration awards from judicial scrutiny even on procedural grounds, leaving courts to confirm religious arbitration awards without knowing whether the arbitrators complied with the contractually required procedural safeguards. This outcome—emblematic of the Janus-faced nature of religious law—is good reason to reevaluate how U.S. law treats religious law, encouraging us to de-mystify religious law by seeing it more like law and less like religion

‘The Peculiar Genius of Private-Law Systems’: Making Room for Religious Commerce

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 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

Jews and the Culture Wars: Consensus and Dissensus in Jewish Religious Liberty Advocacy

In the recent culture wars, traditionalists and progressives have clashed over dueling conceptions of family, sexuality and religion—manifested in debates over abortion, contraception, and same-sex marriage. Caught in this conflict has been a political and cultural reassessment of religious liberty; a doctrine originally seen as necessary to protect faith commitments from majoritarian persecution, the public salience of religious liberty has waned as it has clashed with the rights of women and LGBT people. And these evolving commitments to dueling rights have triggered religious, political, and ideological realignments, generating new alliances across political and faith communities. In this new environment, both popular and academic press have turned to the place of the American Jewish community within these culture wars over religious liberty. Given its status as one of America’s prototypical religious minorities—historically committed to both religious and minority rights—Jews have been claimed by both sides of the culture wars, with both sides painting those who disagree as distorting the true commitments of the American Jewish community on religious liberty. And yet, the history of Jewish advocacy around religious liberty presents a far more complicated picture. This Article aims to paint that picture by examining amicus curiae—friend of the court—briefs filed by Jewish institutions before the Supreme Court in religious liberty cases. In so doing, it tells a very different story—one of community consensus that has historically aligned with traditionalists on questions of religious liberty; but one that has now—with the onset of the culture wars—become far more divided over the core commitments of religious accommodation. In turn, this new dissensus over religious liberty has opened the possibility of a new Jewish approach to religious liberty—one that is far more uncertain and multifaceted