Commerce in Religion

INTRODUCTION Given the multifarious debates about the definition of religion among philosophers, sociologists, and even adherents of religion, (1) it should come as no surprise that secular courts have engaged in advanced acrobatics in the attempt to avoid determining religion's limits and bounds. A central aim of what Kent Greenawalt and others have termed the U.S. Supreme Court's hands-off approach to religious liberty (2) is to avert the problems that might arise if nonreligious courts were to choose among disparate accounts of church doctrine. (3) Similarly fraught questions are posed when a court attempts to decide whether or not a particular set of beliefs and practices counts as religious. Although the law does, in a number of areas, make implicit judgments about what fits within the rubric of religion, the Supreme Court has notoriously refrained from providing a comprehensive account of what "religion" means within the context of the First Amendment. (4) The conception of religion that has emerged from the European Court of Human Rights' (ECHR) adjudication of religious liberty claims under the European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention) (5) partakes of a similarly capacious imprecision. (6) Although the ECHR is charged with the implementation of a treaty, not a Constitution, the European Convention itself has, during the course of its history, assumed increasingly constitutional status within Europe. (7) A variety of factors, including the development of an evolving individual rights jurisprudence and the internalization of ECHR protections into member countries' domestic legal regimes, have contributed to this transformation. (8) On account of the European Convention regime's quasi-constitutional status, the religious jurisprudence of the ECHR provides an instructive comparison to that of the U.S. Supreme Court. Considering the rhetoric of religious liberty decisions issued by both bodies reveals that, despite in general displaying a shared reluctance to clearly demarcate the boundary between religion and nonreligion, the ECHR and the U.S. Supreme Court have adopted significantly disparate understandings of the compatibility of religion with the commercial sphere. Although the Supreme Court opinions demonstrate a willingness to treat apparently commercial activities as falling outside the purview of the financial immunity accorded to religious activity under taxation and other regulatory schemes, they tend not to separate out religious from commercial activity per se. (9) Hence a practice might be viewed under the American framework as protected by the Free Exercise Clause of the First Amendment (10) but nevertheless be seen as subject to those federal laws applicable to commercial activity. By contrast, in the ECHR context, once a particular religion or a certain part of its purportedly religious enterprises becomes characterized as commercial, this aspect of the religion is quickly deemed either nonreligious or marginal to religious concerns. As a variety of religions come to incorporate more commercial features or to conceive of themselves as engaging in competition with other entities within a marketplace, this jurisprudential difference may produce increasingly significant divergences in the treatment of religious liberty claims within Europe and the United States. (11) The Supreme Court's decisions themselves do not, however, appear entirely serf-consistent. In some instances--such as the cases involving the proselytizing activities of Jehovah's Witnesses from the World War II period (12)--the Court has eschewed a formal analysis of whether an activity should be considered commercial, instead asking whether the overarching purpose of the activity is religious. (13) On other occasions--including the treatment of the Church of Scientology's practice of "auditing"--the Court has maintained that the simple existence of a quid pro quo, regardless of the value of what is exchanged, renders a transaction commercial, even if it is also viewed as religious. …