Religious Covenants

Abstract

When religious institutions alienate property, they often include religiously motivated deed restrictions that bind future owners, sometimes in perpetuity. These “religious covenants” serve different purposes and advance different goals. Some prohibit land uses that the alienating faith community considers illicit; others seek to ensure continuity of faith commitments; still others signal public disaffiliation with the new owners and their successors. Some religious covenants are required by theological mandates, but many are not. This paper examines the phenomenon of religious covenants as both a private-law and public-law problem. We conclude that most, but not all, of them likely are enforceable, and, furthermore, that traditional private-law rules governing covenant enforcement represent a more-significant impediment to their enforcement than public-law principles.

Keywords: property, religion, covenants, deed restrictions, free exercise, establishment clause

JEL Classification: K11