Dan Crane, again with great eloquence, concludes his insightful and personal post by asking, “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?”  This is indeed a foundational problem in nations (like ours) that do not rely on state support for religious activity, but I respectfully submit that this is not a new problem.  Indeed, as I wrote in my earlier posts, the suggestion that religious and nonprofit organizations pursue non-pecuniary objectives — as they clearly do — has often been invoked to shield them from antitrust and regulatory scrutiny, which has led to both economic harm and legal confusion.

It has also led to a mistaken expansion of First Amendment defenses.  Some commentators have spread the mistaken fear that applying neutral principles of law to religious organizations requires, as Dan suggests, an inquiry into “the values of each organization.” Michael Helfand, a rising star in the field, has called this fear “Establishment Clause creep” and has contributed to a growing immunity for religious organizations from general laws.  The Supreme Court’s endorsement of the Ministerial Exception this past year codified this immunity from employment and other discrimination laws, which is a decision I support (disclosure: I authored an amicus brief for Hosanna Tabor that articulated a position that did not contradict with either the petitioner or the respondent in the case).  But if Dan means to extend this immunity to protection from the antitrust laws, would he also extend it to other economic torts?  Or contract actions?

Without doubt, religious organizations and committed religious individuals do an enormous amount of social good.  Dan’s parents are paradigmatic cases in point.  But there needs to be a realistic appreciation that the road to good intentions often strays from the beneficent path, and the law is designed to protect the parties injured from actions motivated by these otherwise well-intended actions.  If a pastor who signed an employment contract that included a severance package is dismissed (perhaps the pastor’s and the congregation’s ideologies parted ways), the church is obligated to pay severance.  If they refuse and the pastor sues, there is no need for a court to inquire into the values underlying the religious motivations or values of either the congregation or the pastor.  Applying neutral principles, the court should enforce the contract.  If a church becomes so popular that its members, to gain entrance to the church, pass over a neighbor’s yard and cause damage, the church would be subject to a tort and should pay compensation. Again, no need to inquire into the church’s mission.  These situations extend, especially, to intra-denominational disputes between large and small parties.  What if the neighbor to the large church is a small church?  The smaller congregation relies on neutral law for protection, otherwise an expansive First Amendment could allow an “entanglement” defense to preclude a court’s intervention into the trespass dispute.

The same logic applies to the antitrust laws.  Neutral principles can and should take a court a long way to resolving a dispute over what essentially is an economic tort.  It is true that the Rabbinical Assembly’s control over the labor market infringes upon a congregation’s Free Exercise rights, but a court need not inquire into either those rights nor the  Free Exercise interests of the Rabbinical Assembly as it implements its cartel.  Neutral principles works very well here, and a court that proceeds along this path would succeed in not interfering with religious organizational values much better than a court that refuses to intervene.  Refusing to intervene would allow the economically powerful to infringe on the mission of the weak.

Although my primary area of expertise is antitrust, I know enough about the First Amendment and the Religion Clauses to appreciate how central they are to American life and American law.  But if the First Amendment prevents courts from enforcing secular law according to neutral principles, then it can defeat its own mission (see Saving the First Amendment from Itself).  The law should not and cannot be dogmatic in its refusal to adjudicate disputes between religious organizations because that would remove protections from organizations that need and rely on the law. And it would — again, contrary to the best of intentions — enshrine the powerful and undermine the religious values of those without power.

One thought on “Organizational Values, Neutral Principles, and Economic Power

  1. Having gone thus far along, I’ll continue with the meshuggeneh exegeses in the Comments section.

    First, the thought about economic torts is a tremendously interesting one. I have no idea whether 1A is incorporated against common-law torts (after all, Congress has made no law, so there is no facial conflict), but the scenario points to an interesting paradox. If we divide the secular functions of the institution from the sacred functions, we force the interrelationships between them to become more defined. If, to take the commentator’s example, a congregation is beating a path to Temple over the fairway of the 16th hole at a local country club, and legitimate grounds (no pun intended or achieved) exist for an easement of necessity, the Temple, in order to gain access to their property, has to make a secular contract with a lawyer, likely itself as a secular corporation. So there is a point at which the impedance of the secular right impairs or entangles the free exercise of religion. I’d say that the congregation in effect has three sets of rights – (1) the right to be free of direct and purposed interference in the free exercise of religion; (2) the secular rights of any secular entity; and (3) the secular right to be free of neutral laws of general applicability that would impair or significantly inflect the exercise of religion, so long as the regulated entity is not among those persons or rights that the law seeks to protect or regulate. (Similar, perhaps, to the questions involved in administrative standing.)

    On another line of the argument, the intersection of Antitrust and 1A is interesting, as it touches a (to my limited knowledge) very unclear area of the law. Existing 1A/AT jurisprudence centers on the ability of the court to recognize a sham when it sees one. Justice Thomas’ 2-part standard is used to assess whether an act is protected speech or unlawful restraint on trade. But this is with reference to free speech, not religion. In effect, the deft wants to speak, and the rule is that if there’s any chance that the speech had been genuinely motivated, the Sherman Act is at sixes and sevens and 1A takes the trump. To directly map this standard to Free Exercise seems untenable. First, there is a distinction between the speech act, which is an indivisible action which might have one or more purposes, and the more effects-oriented and multi-step question of Free Exercise versus Antitrust. Second, FS is a secular right, and the court can assess whether a secular law infringes it. FE is a right to the sacred, and the court is therefore in a more difficult position. I’ll leave the thought there, but I wonder if ‘significantly inflect’ the practice of religion might be the best standard.

    Finally, the commentators do have one luxury in this discussion – both of these faiths have an intellectual tradition that – to some extent – divides the secular and the sacred. How to handle different traditions, e,g, Scientology’s extended “contracts” might be a considerably more difficult question.

    None of that was legal advice. Don’t rely.

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