Need for a Law of Church and Market

Abstract

This essay uses Helfand and Richman’s article “The Challenge of Co-Religionist Commerce” to raise the question of the law of church and market. I argue that the question of religion’s proper relationship to the market is more than simply another aspect of church-state debates. Rather, it is a topic deserving explicit reflection in its own right. Courts and legislators have been creating a law of church and market without thinking about it when they resolve questions religious commerce poses by applying legal theories developed without any thought for the proper relationship between church and market. I also examine one of the few areas in our law where we do explicitly try to structure the relationship between commerce and religion: antidiscrimination laws. I argue that the assumptions about the proper role of religion in the market on which these laws are predicated are actually quite different than the ultimately contractual regime that Helfand and Richman assume. While anti-discrimination laws do not directly implicate the doctrinal issues flagged in their article, the theoretical gap between their approach and antidiscrimination law illustrates the need for greater attention to the law of church and market.

Keywords: religion, contract, market, church, state, antidiscrimination