Nathan B. Oman

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This Essay uses The Challenge of Co-Religionist Commerce, by Professors Michael Helfand and Barak Richman, as a means of raising the issue of the "law of church and market." In Part I, I argue that the question of religion’s proper relationship to the market is more than simply another aspect of the church-state debates. Rather, it is a topic deserving explicit reflection in its own right. In Part II, I argue that Helfand and Richman demonstrate the danger of creating the law of church and market by accident. Courts and legislators do this when they resolve questions religious commerce poses by applying legal theories developed without any thought for the proper relationship between church and market. Finally, in Part III, I 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 antidiscrimination 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.

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