A priest, a rabbi, and an imam walk into a contract lawyer's office. Fortunately, this is not the opening of a lawyer joke, but it might well be the prelude to a complicated constitutional question about the interaction of the First Amendment and contract law. Pastors, priests, rabbis, imams, religious schools, churches, religious businesses, and a wealth of faith-based groups all enter into contractual agreements. Not surprisingly, these agreements often contain religious language, and sometimes they even hinge on provisions invoking expressly religious concepts. Religious documents come in a variety of forms, including marriage contracts, disposition of property documents, agreements on a child's religious upbringing, commercial transactions, employment contracts, and arbitration agreements. In some states, these agreements have even been the subject of legislation. In sum, religious parties sometimes draft religious documents, and they do so in a variety of contexts. The infusion of potentially sacred obligations into the realm of secular contract law presents courts with a number of difficult questions.
For example, although courts are charged to interpret and give effect to religious documents whenever possible, the judiciary is starkly constrained by the religion clauses of the First Amendment, especially the Establishment Clause. The conflicting commands to enforce contracts and yet to uphold the limitations of the Establishment Clause are not easily reconciled. What is a court to do when an agreement specifies that "the law of Moses and Israel" governs, states that disputes are to be referred to a "Christian Conciliation Service" for resolution, or requires a husband to pay a dowry arising from obligations set out in the Qur'an? How does a court interpret or enforce contractual terms that invoke religious matters?
This Article takes direct aim at these questions by explaining the relevant Establishment Clause limitations, analyzing the governing case law from around the nation, and outlining a proposed model for judicial analysis of all religious documents. It also reviews a wide variety of guidance helpfully offered by other commentators in these areas. Part II sets the stage by highlighting some of the cultural and religious factors that often surround religious documents, taking as an example marriage contracts. Part III illuminates the fact that it will at times be impossible, from a constitutional standpoint, to enforce religious agreements under governing case law. Part IV then discusses state and federal court decisions that have addressed religious documents. Next, Part V draws from existing literature from other commentators on interpreting religious agreements and begins to frame an analytical model. Finally, Part VI proposes a model for courts to follow in adjudicating religious document cases.
Brian Sites, Religious Documents and the Establishment Clause, 42 U. Mem. L. Rev. 1 (2011)