Thanks, Barak, for very thoughtful and illuminating comments. Our differences are becoming crystallized, and I wonder how much of it has to do with the differences between our respective religious traditions.
It’s interesting that Barak and Harry, who are infinitely more qualified than I am to opine on the issue, understand the hiring of rabbis as a clearly commercial transaction. I can only counter with an idiosyncratic example from my own experience. Until their recent retirement, my parents served their entire adult lives as evangelical Protestant missionaries in Europe. Their income came entirely from money raised from U.S. churches. I think that both they and their supporting churches would have most surprised to hear these transactions described as commercial. The money was incidental to the mission, in the same way that an athlete drinks gatorade incidentally to running a marathon. It may be true that without the gatorade she will collapse, but no one would understand the drinking of the gatorade as the point of the marathon.
This is the major distinction from Barak’s examples from the professions. Doctors, lawyers, teachers, and many other professionals may choose their vocation because of altruistic motivations–the desire to heal, promote justice, or mold young minds. But it is still a vocation–a way to earn a living–that they are choosing. Earning their keep is not incidental to their moral vision. If it were, professional salaries would be far lower than they are.
My point that ordained ministers are differently situated from “the professions” is perhaps as much aspirational as empirical. There are no doubt clergy of all religions who bargain hard to maximize their income based on market factors. But the overall effect is quite different than in the professions. Consider the 2012 Large Church Salary Report conducted by the Leadership Network. The study found that the average salary for a megachurch pastor (one with at least 2,000 attendees) was around $150,000, with an average increase of $8,000 for every 1,000 additional attendees. True, this suggests some market forces at work in setting compensation–pastors who attract more congregants get paid more. But, on the other hand, the effect is very small. The incremental income brought into the church by an additional 1,000 congregants is probably several million dollars. Megachurch pastors are comparable in talent, managerial responsibility, and labor intensity to the top professionals, yet their direct compensation is relatively modest (and yes, indirect compensation would need to be explored as well). In most congregations, it would be considered appalling for a pastor to try to justify his salary based on his value to the church (“I’ve saved thirteen souls this year so I should get a bonus”) as opposed to his needs.
Even conceding that bargaining over money plays a role in the hiring of clergy, there remains the question of fit between the existential purposes of the antitrust laws and the existential purposes of religious groups. When it comes to business firms, we believe that the profit motive is exactly what drives firms to deliver the goods and services we value. As Adam Smith observed, “[i]t is not from the benevolence of the butcher, the brewer, or the baker that we expect our dinner, but from their regard to their own interest.” Competition principles channel this self-interest to maximize our collective well being. But I would not want to attend a church that followed such a principle–one where others gave of their time, money, and friendship only because of self-interest. Although I am of course self-interested (blame original sin), when I participate in my church I aspire to something different–to Jesus’ admonition that it is more blessed to give than to receive, that the widow’s mite was far more valuable than the rich man’s donation.
So where does it leave us if bargaining over money is an unavoidable aspect of much religious hiring but that rivalry over finances is contrary to the principles and self-understanding of many religious organizations? Should courts sift through the evidence on each religious organization, trying to craft antitrust rules that respect the values of each organization while obtaining the benefits of competition where they are warranted? In my view, that would raise serious questions of entanglement between church and state that justify a categorical decision not to apply antitrust law to ministerial hiring–just as the Supreme Court recently declined to apply antidiscrimination law to religious hiring. Barak and I have agreed to debate that issue next.
Interesting points. I’ll continue to play gadfly to the midrash.
Actually, the legal vocation, at least in the Anglo-Saxon tradition, is supposed to have some distance from the Root of Quite a Bit of Evil. If a legal student was ‘called’ to the Bar and began to practice before the courts, he was barred from directly seeking payment for his services. Even very recently, Barristers were barred fom suing for payment. (A basis for some good Rumpole plotlines.) The payment for the representation itself was supposed to be incidental to the practice. Those students who were not ‘called’ (hear: ‘vocare’) to the Bar, however, were free to solicit fees directly.
Again, when religion ‘renders unto Caesar,’ there is a division in its two purposes. The religious purpose is fulfilled in the matter of souls, which as St. Lawrence implied, are the church’s greatest treasure. To enable this purpose, the church takes on worldy forms, such as corporations, dicasteries, and Centers for the Study of Law and Religion. These forms, stamped with the image of the world, must give the world its portion. Now, the interesting thing is that (to a certain point), the two aspects tend to vary directly. A church renown for the integrity of its teaching and the efficacy of the confessional will generally get enough funds to spruce the place up a bit. A massive stone cathedral will tend to attract those who wish to discover ineffable mysteries.
In both of these traditions, the antitrust scrutiny should apply only to the worldy forms. Courts can take cognizance only of certain wavelenths of light. The appropriate role for the assessment of the religious character of the enterprise is separate and antecedent to this balancing. ‘Congress shall make no law, &c, &c.’
None of that was legal advice. And don’t rely.