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Fighting for the Debtor's Soul: Regulating Religious Commercial Conduct

40 Pages Posted: 2 Nov 2010 Last revised: 15 Nov 2011

Michael A. Helfand

Pepperdine University School of Law

Date Written: November 15, 2011

Abstract

While courts often think of religion in terms of faith, prayer, and conscience, many religious groups are increasingly looking to religion as a source of law, commerce, and contract. As a result, courts are being called upon to apply the church autonomy doctrine – which bars courts from reviewing matters of faith, doctrine, and church governance – where commercial conduct is religiously motivated. In this Article, I consider an example of the challenges faced by courts when trying to interpret and regulated religious commerical conduct: the constitutionality of imposing sanctions for violating the Bankruptcy Code’s automatic stay by submitting a dispute for religious arbitration. In considering this example, I suggest that courts, instead of trying to take religion out of the equation, need to develop an increasingly sophisticated understanding of the religious dynamics of a case to know when they can – and cannot – review and regulate the conduct in question.

Keywords: Church Autonomy, Religious Arbitration, Shunning, Establishment Clause, Automatic Stay

JEL Classification: K00, K40

Suggested Citation

Helfand, Michael A., Fighting for the Debtor's Soul: Regulating Religious Commercial Conduct (November 15, 2011). George Mason Law Review, Vol. 19, No. 1, 2011; Pepperdine University Legal Studies Research Paper No. 2011/6. Available at SSRN: https://ssrn.com/abstract=1701475

Michael A. Helfand (Contact Author)

Pepperdine University School of Law ( email )

24255 Pacific Coast Highway
Malibu, CA 90263
United States

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