The religion wars in the United States have officially “gone commercial.” In contrast to past religious controversies that have centered on questions like prayer in public schools and religious symbols on government property, recent conflicts between law and religion have quite a different feel because of their unmistakable commercial component.
Consider the controversy over the Department of Health and Human Services (HHS) promulgation of the so-called “contraception mandate”—the regulation issued pursuant to the Affordable Care Act requiring employers to include contraception in employees’ insurance policies. While religiously motivated for-profit corporations—from book sellers to construction companies—have argued that providing such insurance coverage would violate their conscience, HHS has refused to provide any exemptions for for-profit corporations. According to the government, for-profit entities cannot “exercise religion.” For their part, the federal courts of appeals have split on whether the question—that is, on whether religion can “go commercial.”
The same opposition of commercial conduct and religious objectives stood at the heart of the debate last year over the Supreme Court’s decision in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, where the court held that religious institutions could not be sued for employment discrimination when it came to the hiring and firing of “ministers.”
The court, however, avoided providing any defininition as to which employees count as ministers. Is a chaplain in a for-profit rehabilitation center serving as a minister? What about a rabbi providing kosher supervision to a for-profit caterer? The more religion has gone commercial, the more difficult it has become for courts to figure out how to treat conduct that that is simultaneously religious and commercial.
Of course, these constitutional skirmishes are part of a far larger infrastructure of religious commerce. Notable examples include Sharia-compliant financial instruments and Jewish heter iska agreements, both of which are mechanisms for restructuring loans so as to avoid Islamic and Jewish law’s respective anti-usury rules. Religious communities have embraced contracts that use commercial forms to govern and structure a variety of religious relationships, such as employment contracts, arbitration provisions, and prenuptial agreements.
To some, this merging of religion and commerce has been a source of great worry. In fact, the purported rationale behind the recent wave of anti-Sharia initiatives around the United States—state laws that prohibit courts from “considering” or “referencing” Islamic law—is to prevent the supposedly dire risk of religious doctrine spilling into the American judiciary. By some accounts, judicial enforcement of religious commercial instruments is a modern-day Trojan horse, smuggling nefarious religious worldviews into a judicial space under the surreptitious guise of secular commercialism.
Such disdain was on display this past August when a Kansas state court refused to enforce an Islamic mahr contract—an agreement used as part of the Islamic marriage process. The agreement secured a debt on behalf of a wife against her husband in the event of divorce, which would protect the wife if she could no longer rely on her husband’s income. The court, however, refused to enforce the contract, contending that such contracts perpetuate discrimination because Islamic law grants the husband unilateral authority to effect the divorce. Of course, the court never quite explained how enforcing this agreement would be discriminatory given that it provided the wife with financial leverage in the event of divorce. The court relied, in part, on a recently enacted anti-sharia law in Kansas, further demonstrating how such laws can be deployed to prevent religion from “going commercial.”
Not all courts have been so skeptical. In a decision only a few weeks ago, a Connecticut Superior Court issued what is sure to become a landmark decision, enforcing a formal prenuptial agreement drafted by one of the most prominent rabbinical courts in the United States, the Beth Din of America. The agreement provides the wife with leverage in the case of a Jewish divorce, counterbalancing the fact that Jewish law grants the husband unilateral authority to initiate a divorce. Accordingly, the agreement requires the husband (and wife) to submit to the authority of a rabbinical tribunal if either spouse seeks a divorce, and to pay the wife $150 in daily support until the divorce is granted, preventing the husband from using divorce as a bargaining chip in negotiations related to the dissolution of the marriage.
Not surprisingly, the husband appearing before the Connecticut court argued that enforcing the prenuptial agreement violated the First Amendment, serving as an impermissible admixture of religious practice and governmental authority. But the court unequivocally rejected such claims, endorsing the enforcement of religious contracts that are clearly drafted in plain language and thereby avoid drawing courts into debates over internal religious doctrine. In this way, the court endorsed the trend of religion going commercial, encouraging religious communities to use the law’s framework to translate religious obligations into commercial instruments in order to protect the most vulnerable within their ranks.
Indeed, the court’s decision recognized that the best way to prevent the potential negative impact of religious law is to encourage ingenuity and creativity precisely at the nexus of religion and commerce. So long as courts continue to ensure that parties enter such agreements out of their own volition, the sophisticated drafting of agreements and structuring of relationships can provide solutions to the most worrisome religious customs and practices. Those supporting initiatives that hope to disaggregate religion and commerce miss the core insight that commercializing religion isn’t the problem: It’s the solution.
Michael A. Helfand is an associate professor of law at Pepperdine University School of Law and associate director of Pepperdine University’s Diane and Guilford Glazer Institute for Jewish Studies.
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