Category Archives: Daniel Crane

Do Skeptics Make Better Lawyers?

This will be my last post as a guest blogger.  Many thanks to Mark and Marc for allowing me this opportunity to share some thoughts and to the many readers who contributed comments, e-mailed me offline, or just read.  I’m now back to my day job saving monopolists not from their sins but from treble damage judgments.

Since I haven’t been able to stir up any controversy by asking how Jesus would rule on same-sex marriage or why evangelicals are underrepresented at elite law schools, I thought I might go out with a bang by asking whether skeptics—atheists, agnostics, and others skeptical about religious devotion and belief—generally make better lawyers than do people of faith.  And, in case the reader assumes that any post on a law and religion blog must necessary answer this question with a self-righteous snort, please be assured that I mean it quite seriously.

The question has lingered uncomfortably in my mind for a long time.  Back in June of 2005, when I was an untenured faculty member at Cardozo Law School (which is part of Yeshiva University, an Orthodox Jewish institution), my then dean, David Rudenstine, gave a provocative address to group of 200 undergraduate counselors from northeastern universities in which he seemingly questioned whether people of faith could make good law students or lawyers.   David argued:  “Faith challenges the underpinnings of legal education . . . . Faith is a willingness to accept belief in things for which we have no evidence, or which runs counter to evidence we have.  Faith does not tolerate opposing views, does not acknowledge inconvenient facts. Law schools stand in fundamental opposition to this.”

That story is old and was widely discussed at the time, and I don’t mean to use this as an occasion to pick on David Rudenstine, whom I have always known to be fair-minded, ethical, and generous.  It’s just that I’ve often wondered whether David had at least half a point.

In an earlier post. I mentioned an online survey of students at an elite law school that suggested that evangelical Protestants might be underrepresented compared to their national demographic figures.  The same survey (and please see all caveats from last time about its informality) suggested that atheists and agnostics might be very significantly overrepresented compared to their national demographic figures.  According to Pew Forum data, people who identify as atheist or agnostic account for about 4% of all respondents nationally and about 7% of respondents in the 18-29 age cohort.  Skeptics are well educated overall, claiming 8% of all post-graduate diplomas (basically doubling their base 4% share).  In the law student survey, they accounted for a whopping 28% of all respondents, more than all Protestant categories (evangelical, mainline, and traditionally African-American) combined.

The case that skeptics have the edge in the legal profession seems easy to make.  Lawyers are trained to be skeptical, to question everything and believe nothing, to assert that all positions are tentative and relative.  A lawyer must be ready to argue either side of any dispute, suspending her personal views to advance the interests of her client.  This sort of fluid intellectual role-playing is hard to square with a dogged conviction in a single vision of the truth.

This is not to say that anyone who identifies with a religion is necessarily disadvantaged in the legal profession.  But it does suggest that the legal profession will select for the religious traditions that are most open to skepticism and for religious adherents who are the most iconoclastic within their respective traditions. Jewish law students far outperformed their national market share in the law student survey (2% nationally compared to 10% in the survey), and it’s my sense that Judaism has a long history of encouraging internal debate.

So far so good for the claim that skeptics, or at least skepticism, makes for lawyerly success.  But, being a skeptical lawyer myself and hence necessarily seeing both sides of every issue, I need to ask whether there isn’t also a sense in which religious skeptics might face some disadvantages in the study and practice of law.   They might.

One of the things that has most amused me in my years as a law professor is how so many of my colleagues and students seem mystified at the persistence of various ritualistic and formalistic aspects of law.  They just can’t understand why the legal system continues to employ all manner of fictions, incantations, rites, dogmas, and formalities that serve only to hinder the scientific pursuit of human wellbeing.  What my skeptical students and colleagues are missing is that these legal rituals are bound up in the same impulses that undergird religion.  The legal system exhibits aspects of human psychology, emotion, and experience that are bound up in metaphysical yearnings for the divine and the transcendent.  This will continue so long as law is produced by men and not computers.  A successful lawyer must not only understand these impulses but channel them.

Take, for example, the ongoing debates over textualist and “plain meaning” approaches to interpreting written instruments—constitutions, statutes, regulations, contracts, wills, etc.  Years ago the legal realists showed—or thought they showed—that texts do not have an objective meaning and, hence, that textualist searches for an objective meaning were inherently misguided.  Yet textualism is arguably more entrenched as an interpretive methodology today than it was at the heyday of legal realism.  One of the contributing factors is an abiding cultural reverence for the inherent—some would say primitive—power of written texts.  Whether this reverence is caused historically by the primacy of written texts in Western religious traditions or instead emanates from some deeper aspect of human psychology that creates a demand for textualism in both law and religion is an open question.  But it does seem that those who begin law school connected to textual reverence and related exegetical methods may have a leg up.

There are many other ways in which religion—not just intellectual knowledge about religious history and dogmas but a religious mindset—could prove useful in the study and practice of law.  Think, for example, of legal skills as far flung as mastering jury psychology, crafting the poetic cadences of a sensational appellate brief, and inducing several hundred egotistical lawyers to sacrifice for the good of a law firm partnership.  A religious persuasion isn’t essential to these skills, but it could often come in useful.

In conclusion, I remain convinced that my old dean had half a point—but only half a point.  Skeptics are naturally drawn to law and enjoy some clear advantages.  It’s just that the law naturally attracts certain religious personalities as well and offers them their own advantages.  In the end . . . well, why do I have to commit myself to anything?  I’m a lawyer, after all.

Are Evangelicals Underrepresented Among the Legal Elite?

When Elena Kagan joined the Supreme Court in 2010, there was ample chatter about the fact that there were no longer any Protestant justices on the Court.  With six Catholics and three Jews, the Court stood in stark contrast to the bare majority of the country that affiliates as Protestant.  Supreme Court appointments are few in number and idiosyncratic, but there’s a broader religious demographic phenomenon that’s harder to explain away as random:  the underrepresentation of evangelical Protestants among the American legal elite.

First, some definitions and boundaries.  The gold standard for religious affiliation in the United States is the Pew Forum on Religion & Public Life.  Using their affiliation categories, here are the breakdowns for the largest religious demographic groups in the U.S.:  evangelical Protestant 26%; mainline Protestant 18%; Catholic 24%; historically black church (which would include evangelical and non-evangelical Protestants) 7%; Jewish and Mormon 1.7%; unaffiliated 16%.   By “legal elite,” I refer to something with looser boundaries, but still recognizable.  Roughly, it would include elite federal judges (Supreme Court and the most prestigious federal circuits); top legal jobs in the executive branch (Solicitor General’s office, White House counsel, etc.); law professors at top-ranked law schools; and various talent pools that feed into the upper echelon of legal jobs (i.e., student bodies at elite law schools; Supreme Court clerkships).

My strong intuition is that evangelicals are grossly underrepresented in the legal elite.  To focus again on the (admittedly idiosyncratic) Supreme Court, it’s not just that there are currently no Protestants on the court, it’s that at least since the rise of modern evangelicalism as a political force in 1970s, there has never been an evangelical on the Court.  Even though evangelicals have had great success in politics writ large, including the Presidency, Congress, and governorships, they have been conspicuously absent from the top echelons of the federal judiciary.

It’s a good bet that that this underrepresentation stretches back to the beginning of the elite pipeline that feeds the elite echelons.  While I’m unaware of any good data on the religious affiliation of law students at elite law schools, my own experience suggests that evangelicals fall far short of their national demographic numbers in elite law school enrollment.  Several years ago, David Skeel, Larissa Vaysman, and I conducted an online survey of the religious affiliation of first-year students at a top ten law school (a project we are hoping to continue elsewhere).  The 57% of the students who responded provided the following data.  Evangelical Protestants comprised merely 7%, compared to the national figure of 26%, while mainline Protestants and Catholics largely maintained their national shares (16% for mainline Protestant compared to 18% nationally, 20% for Catholics compared to 24% nationally).  Caveat:  this was just one survey and there are all sorts of statistical problems with extrapolating from voluntary online surveys, so take this for what it’s worth.  Still, this snapshot resonated with my intuitions about law school enrollments.  And it would be very surprising if evangelical Protestants amounted to even 5% of the law professors at the top law schools.

Let me be clear that I’m not starting out to tell a bias or victimization story.  The enormous disparity between national demographics and the legal elite (if my intuitions and fuzzy data points are right) could have many different and complicated explanations.  Nor am I necessarily taking a position on the normative implications of evangelical underrepresentation.  For purposes of this post, I just want to make the empirical point, such as it is.  In future posts I will offer some observations on possible explanatory stories and the normative dimensions, if any.

Gay Wedding Cakes and Liberalism

Over the past several years, there have been a number of reported incidents in the U.S. where a bakery has refused to make a wedding cake for a same-sex wedding. In the latest case, a bakery in Gresham, Oregon refused to bake a cake for a wedding between two women, citing religious objections.  One of the aggrieved fiancées has filed a complaint with the state attorney general’s office, which is now investigating whether the bakery violated an Oregon statute prohibiting discrimination in public accommodations.

This incident illustrates a wider phenomenon—unwillingness to pursue liberal values when it comes to the politics of sexual orientation.  By liberalism, I mean the strain of European political philosophy that arose in the eighteenth and nineteenth centuries partly as a reaction to the devastating religious wars of the sixteenth and seventeenth century, most particularly the Thirty Years’ War that killed eight million people in central Europe.  Liberals like John Locke, Adam Smith, David Hume, and John Stuart Mill stressed individual rights, limited government, and freedoms of speech, press, religion, contract, and property as antidotes to such bloodshed.  They aimed to allow people with fundamentally different world views to contribute jointly to the projects of government, order, and civil society with minimum friction.  Liberalism is the philosophy at the heart of the enduring American constitutional order.

Alas, liberalism is losing out in the culture wars.  The gay wedding cakes battles are representative of a wider disease that infects people in both camps—invoking the power of government to endorse and enforce one’s world view on matters of sexuality and identity.  Rather than just saying, “I’ll take my business elsewhere,” the impulse is to call the attorney general’s office in support of one’s position, as though law and politics were the appropriate fora for deciding the morality of sexual identity and practice.

The predominant forces in both camps are pushing anti-liberal agendas.  In 2004, the Virginia Legislature passed a statute invalidating private contracts between gay people if they replicated the incidences of marriage.  Conservatives continue to resist political settlements on same-sex marriage that would shift marriage decisions from the state to individuals and private communities.  On the other side, progressives are fighting to enshrine their views in marriage and antidiscrimination laws and school curricula.  In the Chik-fil-A flap last summer, progressive politicians around the country threatened zoning prohibitions or other deployments of state power to fight the forces of “hatred and intolerance.”

Where are the liberals?  Where are the people willing to say: “As much as possible, let’s not decide these questions in the arena of the state.  Let’s let them play out in families, churches, religious communities, social networks, friendships, businesses, and private associations.  Let’s resist the impulse to make these kinds of divisive moral and religious questions political questions.  Let’s not fight another Thirty Years’ War.”

Let me try to preempt some likely objections with two concluding observations.

First, a liberal disposition cannot be confined to circumstances where one disapproves of someone else’s conduct but it causes no harm to others—because that’s an empty set.  It’s child’s play for lawyers, philosophers, and economists  to demonstrate that almost anything one person does affects other people.  When the baker refuses to make the wedding cake, it imposes real distress, humiliation, and inconvenience on the person requesting the cake.  Conversely, having to make the cake would impose real offense and moral indignity on the baker.  Liberalism doesn’t depend on a view that one of the parties really isn’t hurt, any more than free speech depends on a view that words can never be hurtful.  Liberalism is a disposition that says “the state must let pass these sorts of harm—they do not rise to the level of force and fraud where state intervention is justified.”

Second, to espouse liberalism isn’t to pretend that the state never has to make political judgments on issues of sexual orientation.  Since the state runs the military, it must decide whether gay people can serve in the armed forces.  Since the state regulates adoptions, it must decide whether gay people can adopt.  And there are of course other examples.  But the fact that it is sometimes unavoidable for the state to wade into these thorny issues does not justify the state wading in when it doesn’t have to.  The great project of liberalism is to strive continually for resolutions that don’t involve the state deciding divisive issues of  meaning and morality that require choosing between contending world views.  This isn’t always possible, but it’s possible much more of the time than it happens.

Calling all liberals . . .

Marriage Privatization Won’t Be Easy

Several years ago I wrote a “Judeo-Christian” defense of marriage privatization, by which I mean getting the government out of the business of deciding what marriage is and by what terms it should be governed.  As the cultural wars over same-sex marriage intensify, that idea has gained wide popularity across the political spectrum.  For example, in their popular book Nudge, Richard Thaler and Cass Sunstein devote an entire chapter to advocating marriage privatization.

Many advocates of marriage privatization seem to think that disentangling the state from marriage would be easy.  They argue that the government should just stop issuing marriage licenses.  Marriage would then become a private ceremonial and contractual matter.  The state would enforce marriage contracts just like other contracts.

Although I remain an advocate of marriage privatization, disentanglement would be far from that easy.  The state is thoroughly intertwined with marriage; the Gordian knot cannot be neatly severed.  I’m currently working on article entitled How to Privatize Marriage that tries to work through these complex issues.  My bottom line is that privatizing marriage does not mean that the state would get out of regulating and recognizing intimate unions altogether, but that it would try to create a wider space for regulation and recognition by individuals and social and religious groups.

I’m still working through these issues and won’t try to offer a comprehensive solution yet.  For now, I’d  like to raise three difficulties with marriage privatization that need to be addressed as part of any privatization proposal.  They correspond to functions currently served by state marriage regulation and recognition.

First, the state uses marriage as a marker for the dispensation of state benefits and the extraction of obligations owed to the state by individuals.  This is most obvious in the taxation context, but occurs across a tremendous range of state activities. (I’m using “state” in its broad sense to include all governments).   For example, selective service (i.e., the draft) has typically differentiated between the married and unmarried.  The rules of evidence create “marital privilege” allowing spouses not to testify against each other.  If the government were to stop issuing marriage licenses, it would need to account for the thousands of ways in which laws draw distinctions based on marital status.  If marriage were a purely private creation—anyone could call themselves married according to whatever criteria they chose—these thousands of legal categorizations would collapse.

Second, the state has traditionally regulated marriage to prevent certain kinds of abuses.  For example, prenuptial agreements are not enforced as routine contracts because of the potential for unfairness and imposition by the strong on the weak.  The easy “pro-privatization” answer is that civil courts would continue to enforce marriage contracts only if they were fair.  But what if the married couple had agreed, for example, to be bound by principles of Christian marriage and to have any disputes within their marriage resolved through a process of conciliation, mediation, and arbitration within the Catholic Church?  Nominally, a civil court’s job would be to enforce any arbitration award coming out of the Catholic Church, as courts currently do under the Federal Arbitration Act.  But now imagine the entanglement problems when, for example, the wife challenged the arbitration award as unconscionable or against public policy because the arbitrators had discriminated against her because she was a woman or had left the Catholic Church or wanted to use birth control or had come out as a lesbian or any number of other potentially objectionable reasons.  Having civil courts scrutinize religious arbitral decisions for fairness and conformity with public values raises severe establishment clause and free exercise problems.  And having courts simply rubberstamp such arbitration awards means that the state would have to abdicate its traditional function in preventing various kinds of abuse and unfairness within marital relations.  Just to raise everyone’s hackles, imagine the proceedings to enforce a Sharia divorce judgment in a family court in San Francisco.

Finally, state recognition of marriage plays an important role in facilitating market transactions between private parties.  For example, car rental companies typically allow a married renter to add  his or her spouse as a driver at no additional charge.  Insurance companies set premiums for all kinds of policies based on marital status.  And there are many other examples.  In certifying who is married, the state performs a function that markets value, much as the USDA does as to various kinds of food certifications.  This is not to say that private organizations couldn’t replace the state’s certification role, but, to play law and economics for a moment, that might greatly increase various kinds of transaction costs.  This last point is one that I don’t think has been widely appreciated, but is quite substantial.

I believe that there are answers, which is why I remain an enthusiastic marriage privatization proponent.  But privatization advocates need to start engaging more systematically with these thorny problems.

How Would Jesus Rule on Same-Sex Marriage?

As the U.S. Supreme Court prepares to rule on same-sex marriage, Christians on both sides of the issue continue to invoke Jesus in support of their position.  Or, more precisely, they invoke a vision of ethics and morality (i.e., inclusivity vs. traditional moral values) that they associate with Christian teaching.  But how would Jesus actually have responded if asked “how should the Supreme Court rule on same-sex marriage?”

That’s anachronistic, of course, but it’s the kind of question that “teachers of the law” routinely flung at Jesus, usually with the intention of entrapping or discrediting him.  The legal elite of Jesus’ day peppered him with hot button legal and ethical questions like “should we pay taxes to Caesar” and “to whom do I owe neighborly duties?”  Often, these questions involved marriage and sexuality:  May a man divorce a woman for any and every reason?  How should a woman caught in adultery be punished?  If a woman marries seven different husbands in succession and then dies herself, which one is she married to in Heaven?  It’s not hard to imagine CNN legal analyst Jeff Toobin cornering Jesus and asking him, “Hey Jesus, how about same-sex marriage?”

It would be presumptuous of me to say how Jesus would answer that question, so I won’t.  But I will offer three observations from things Jesus actually said in response to similar questions.

First, Jesus would likely have faulted both sides of the debate for an excessively materialist perspective.  On one side, we hear that marriage is about procreation and child rearing.  On the other, that it’s about love and companionship.  But Jesus did not understand marriage primarily in terms of its temporal or material effects.  For Jesus, marriage was a spiritual representation of divine relationships.  According to Jesus, God created man and woman—male and female—in the image of God, mirroring the unity and diversity within the Godhead.  Jesus and later apostolic writers referred to Jesus as a bridegroom and the Church as his bride.  Jesus explained that in Heaven people would not be married to one another, since they would be in perfect union with God.  Thus, the ultimate good of marriage was not that it served immediate material needs but that it celebrated the eternal nature of God.

This understanding of marriage has precious little purchase in the contemporary, hyper-materialist world.  Even those who recognize marriage’s “spiritual” component usually mean that psychosomatically—marriage feeds long-term emotional and pyschological needs.  We’ve lost any sense of human institutions as good because of their correspondence to divinity.  Across the ideological spectrum, we’ve given in to Richard Posner’s wish of “unmasking and challenging the Platonic, traditionalist, and theological vestiges in Enlightenment thinking.”  It’s safe to say that Jesus would have had a different take.

Second, and in some tension with my first observation, Jesus might have responded to a question about same-sex marriage by distinguishing between the spiritual ideal and pragmatic legal rules.  That is what Jesus did on divorce.  When asked whether a man should be allowed to divorce a woman for any and every reason, Jesus responded that Mosaic law allowed for divorce because of the hardness of people’s hearts, but that things weren’t that way from the beginning.  Jesus was not advocating a change in the law, but a change in people’s hearts.

Christian thinkers have long debated the distinction between legal and spiritual marital norms.  When Britain was liberalizing its divorce laws in the 1940s, my two favorite Christian writers, J.R.R. Tolkien and C.S. Lewis, took different views on whether Christians should advocate that secular legal institutions mirror the spiritual ideal.  Tolkien opposed the divorce reforms on the grounds that the spiritual should inform the legal.  Lewis argued for a pragmatic differentiation between the spiritual and the legal.  In my view, Lewis was closer to the position staked by Jesus.

Finally, chances are that Jesus’ answer would go to issues far beyond the narrow question presented.  This was almost invariably Jesus’ pattern when confronted with hot-button legal issues. He always found the question itself less important than the darkness it exposed.  Thus, he turned the question about paying taxes to Caesar into condemnation of his questioners’ failure to honor God, the adultery penalty question into an indictment of his interlocutors’ self-righteousness, and the divorce question into an exposé of spiritual hardness.  I shiver to think of how he might turn the same-sex marriage question back on us.  All of us.

Welcome Back to Dan Crane

Welcome Back to Dan Crane (left), who will be guest posting with CLR Forum this month and next. Dan is the Frederick Paul Furth, Sr. Professor of Law at Michigan. He joined us last fall for an online debate with Barak Richman on antitrust and the clergy employment. Great to have you back, Dan!

Establishment Clause Creep and Antitrust Creep

This will be the end of the line for the back-and-forth between Barak and me, so let me thank Barak for his very thoughtful and cordial correspondence on these interesting questions.  This is not a moment to say “see you in court,” but to hope that our dialogue has furthered our respective understanding of the issues.

In earlier posts, I hinted that application of the antitrust laws to rabbinical or pastoral hiring practices would run afoul of the Establishment Clause, particularly in light of the Supreme Court’s recent decision in Hosanna-Tabor Evangelical Lutheran Church, which recognized a “ministerial exception” to the application of antidiscrimination law to the hiring of religious ministers.  In my view, a fair reading of Hosanna-Tabor would prevent an antitrust suit involving rabbinical hiring.  However, for purposes of this post, I would like to respond more generally to Barak’s claim that “entanglement” concerns lead to “Establishment Clause creep,” insulating from legal review the harmful decisions of religious organizations.

Barak’s concerns over “creep” fall into two categories.  One concerns the externalization of costs from religious organizations to others–his example of people cutting across the neighbor’s lawn to get to church.  This is an easy case for me, because religious organizations should not be allowed to justify externalizing costs onto others in the name of religious independence.   Of course,  one could argue that all purely private activities end up externalizing costs or benefits onto others (i.e., functional families make for happy neighborhoods, dysfunctional ones for unhappy neighborhoods), but I’m confident that sensible lines can be drawn between what is mostly internal and what is significantly external.

What about cases where the harms, if any, are all or mostly internalized within the religious organization or by its members?   Consider two examples:  ritualistic human sacrifice of willing victims and regulations applied to require churches to install wheelchair ramps.  In neither of these cases is the Establishment Clause or free exercise defense plausible.   In the human sacrifice case, the act is  morally abhorrent and the legal prohibition clear.  Any ostensible free exercise interest is outweighed by the state’s legitimate interest in preserving human life and there is no danger of entanglement.  In the wheelchair ramp case, the legal requirement concerns a physical structure far enough removed from the purposes and values of the religious organization that there is little risk that enforcing the building code would require civil authorities to inquire into the existential purposes of the church and their relationship to the civil law.

Not so for antitrust law (and perhaps other business torts as well).  Antitrust is not justified on the grounds that collaboration among rivals is inherently immoral or  injurious.  Rather, it is justified on instrumental grounds–that competition among business firms tends to increase output and decrease prices to the benefit of consumers.  As I said in earlier posts, it’s awkward to apply this assumption wholesale to religious organizations, since many such organizations would resist the idea that they are ordinary economic actors or exist in order to achieve a better deployment of society’s scarce social resources.  And most religious groups would strongly deny that they would function better if they fostered internal economic rivalry.

For example, for mendicant orders like the Franciscans, the “employees” are bound to an oath of poverty.   They are expressly prohibited from being Chicago School “rational profit-maximizers.”  If the Franciscan order put in place rules to prevent local parishes from trying to attract Franciscan monks through promises of higher compensation, that would run counter to the Sherman Act’s assumption that economic rivalry results in an optimal allocation of resources.  But I’m doubtful that the Sherman Act’s assumption generally holds in the religious organization context.  And, even if it sometimes might hold, it would be  troubling to ask courts to sift through the evidence on different religious organizations to determine when it does hold and when it doesn’t–when the existential purposes of a particular sect would be furthered by greater economic rivalry and when they would not.  That, in my view, would raise serious entanglement problems.  Do we want courts deciding what degree of poverty is appropriate for Franciscan monks?

[I’m amending my post from last night to add a further anecdote from the Christian tradition that illustrates the problem.  In the gospel accounts, when Jesus enters the temple he finds merchants engaging in commerce and drives them out with a whip, saying that God’s house should be one of prayer, not of thievery.  Many churches today are reluctant even to sell sermon tapes or Christian books in the church foyer because of this and similar admonitions.  That this is a concern in the Christian tradition does not make it universally a concern, but it does suggest an entanglement problem if courts were to undertake an inquiry into when commercial transactions are permissible, and when not, within a particular religious tradition.]

In short, I’m less concerned about Establishment Clause creep than about antitrust creep.  Economic rivalry is good sometimes, but not always.  Unlike Barak, I wouldn’t start with the assumption that antitrust law should apply universally to all human endeavor unless a special exception is warranted.  I would start with the assumption that antitrust should apply to business and commerce and only extend it to other endeavors if the case for extension were clear and unencumbered by competing religious, social, or moral values.  As to rabbinical collusion, I’m not persuaded that case has been made.

More Thoughts on Harmony and Competition

Thanks, Barak, for very thoughtful and illuminating comments. Our differences are becoming crystallized, and I wonder how much of it has to do with the differences between our respective religious traditions.

It’s interesting that Barak and Harry, who are infinitely more qualified than I am to opine on the issue, understand the hiring of rabbis as a clearly commercial transaction. I can only counter with an idiosyncratic example from my own experience. Until their recent retirement, my parents served their entire adult lives as evangelical Protestant missionaries in Europe. Their income came entirely from money raised from U.S. churches. I think that both they and their supporting churches would have most surprised to hear these transactions described as commercial. The money was incidental to the mission, in the same way that an athlete drinks gatorade incidentally to running a marathon. It may be true that without the gatorade she will collapse, but no one would understand the drinking of the gatorade as the point of the marathon.

This is the major distinction from Barak’s examples from the professions. Doctors, lawyers, teachers, and many other professionals may choose their vocation because of altruistic motivations–the desire to heal, promote justice, or mold young minds. But it is still a vocation–a way to earn a living–that they are choosing. Earning their keep is not incidental to their moral vision. If it were, professional salaries would be far lower than they are.

My point that ordained ministers are differently situated from “the professions” is perhaps as much aspirational as empirical. There are no doubt clergy of all religions who bargain hard to maximize their income based on market factors. But the overall effect is quite different than in the professions. Consider the 2012 Large Church Salary Report conducted by the Leadership Network. The study found that the average salary for a megachurch pastor (one with at least 2,000 attendees) was around $150,000, with an average increase of $8,000 for every 1,000 additional attendees. True, this suggests some market forces at work in setting compensation–pastors who attract more congregants get paid more. But, on the other hand, the effect is very small. The incremental income brought into the church by an additional 1,000 congregants is probably several million dollars. Megachurch pastors are comparable in talent, managerial responsibility, and labor intensity to the top professionals, yet their direct compensation is relatively modest (and yes, indirect compensation would need to be explored as well). In most congregations, it would be considered appalling for a pastor to try to justify his salary based on his value to the church (“I’ve saved thirteen souls this year so I should get a bonus”) as opposed to his needs.

Even conceding that bargaining over money plays a role in the hiring of clergy, there remains the question of fit between the existential purposes of the antitrust laws and the existential purposes of religious groups. When it comes to business firms, we believe that the profit motive is exactly what drives firms to deliver the goods and services we value. As Adam Smith observed, “[i]t is not from the benevolence of the butcher, the brewer, or the baker that we expect our dinner, but from their regard to their own interest.” Competition principles channel this self-interest to maximize our collective well being. But I would not want to attend a church that followed such a principle–one where others gave of their time, money, and friendship only because of self-interest. Although I am of course self-interested (blame original sin), when I participate in my church I aspire to something different–to Jesus’ admonition that it is more blessed to give than to receive, that the widow’s mite was far more valuable than the rich man’s donation.

So where does it leave us if bargaining over money is an unavoidable aspect of much religious hiring but that rivalry over finances is contrary to the principles and self-understanding of many religious organizations? Should courts sift through the evidence on each religious organization, trying to craft antitrust rules that respect the values of each organization while obtaining the benefits of competition where they are warranted? In my view, that would raise serious questions of entanglement between church and state that justify a categorical decision not to apply antitrust law to ministerial hiring–just as the Supreme Court recently declined to apply antidiscrimination law to religious hiring. Barak and I have agreed to debate that issue next.

Price-fixing Rabbis: Is Antitrust Made for this Problem?

Barak has single-handedly provoked a national dialogue over an interesting and important issue about the relationship between antitrust law and religious organizations.  This is scholarly entrepreneurship at its best, so kudos to Barak.  Alas, I’ll have to part company with his position.  Not having the benefit of his expertise on the specifics of  rabbinical hiring, I’ll make more general comments about antitrust and the regulation of religious enterprises.

Modern antitrust law is justified on the assumption that rivalry between firms for the design, manufacture, and distribution of goods and services promotes efficiency by stimulating innovation and lowering prices.  This assumption is true enough as to commercial undertakings that it serves as a useful market ordering principle.  I’m far less confident that the rivalry assumption holds as a general matter as to religious organizations.

On the one hand, competition clearly can be a spur to the performance of religious organizations.  The best empirical evidence for this is the widely different paths of the state-established churches of Europe and the disestablished churches in the United States.  In Europe, the Lutheran, Anglican, Orthodox, and Catholic churches have held near-monopoly positions for hundreds of years.  Funded by the state and granted all manner of valuable privileges and subsidies, they are economically protected—and in north Europe at least almost completely irrelevant.  Secure in its position and unmotivated by competition, the established church had little reason to sharpen its message, adapt to new social realities, or reach new audiences.  By contrast, religion has flourished in America precisely because of its disestablishment.   America has been the most fertile land for development of new religious sects, doctrines, and expressions, in large part because no group could succeed unless it presented an appealing message and worked hard to attract and retain members.  Europeans who often look with a mixture of contempt, amusement, horror, and incredulity at the deep religiosity of the United States would do well to consult economic principles to understand the differences.

On the other hand, it’s far from clear that rivalry between religions is as fundamental to the well-being of society as is rivalry between commercial firms.  I was recently at a conference where someone asked whether the antitrust laws should apply to the Balamand agreement between the Roman Catholic and Eastern Orthodox Church, which ended official Roman Catholic proselytization of the Eastern Orthodox.  The audience laughed.  Given that much of history’s nastiest episodes have come about because of religious rivalry, gestures toward religious conciliation and ecumenicalism are a relief—even if they happen to take the form of market division.

And that’s as to what the antitrust crowd would call “interbrand competition,” rivalry between different religious sects.  If the value of overt rivalry between religious sects is questionable, so much more so for rivalry within religious sects—what the antitrust crowd would call “intrabrand competition.”  Speaking from within just my own tradition—the Christian one—a good bit of the Apostle Paul’s letters to the churches scattered across the Roman world was about the need for unity, the need to avoid internecine strife, the need to stop competing and to be “unified in Christ.”  Since the church was said to be “one body,” the Apostle would likely have found it surprising that social welfare would be maximized if the churches at Ephesus and Corinth competed with each other to attract Timothy as their next pastor.  To put the point rather awkwardly in the language of modern antitrust, in Christian theology the church is a single firm, and a single firm is juridically incapable of conspiring with itself (as the Supreme Court held in Copperweld).  I can’t speak universally, but my sense is that most religions have a similar commitment to internal unity and harmony.

The fundamental problem with applying antitrust law to the non-commercial activities of churches, synagogues, or other religious organizations is that it forces them to adhere to a set of normative commitments that may not be their own.  An ecclesiastical organization may think it’s far more important to ensure order, theological continuity, adherence to tradition, or harmony in allocating its clergy than to secure the optimal short-run deployment of its human capital resources (i.e., its clergy) given the preferences of local congregations.  I don’t know whether or not it is.  But if I were a judge making the decision in an antitrust case, I would be pretty sure that the question wasn’t my call.  Congregational style organizations exist precisely because their members want control over these kinds of decisions; synodic or hierarchical organizations exist precisely because they value order, theological continuity, adherence to tradition, and harmony over local autonomy.

Thus far, my arguments have been purely normative.  Whether modern U.S. antitrust law applies in the rabbinical case Barak has raised is a different question.  I seriously doubt that the framers of the Sherman Act would have contemplated the statute’s application to churches and synagogues.  To be clear, I’m not suggesting that religious organizations are immune from the antitrust laws when they sell goods or services.  If kosher slaughterhouses collude to raise prices for meat, they surely don’t get antitrust immunity just because the collusion is sanctioned by a rabbinical council.  The Supreme Court has held that the antitrust laws apply when “proximate relation to lucre” appears.  Producing and selling food is a commercial transaction; hiring rabbis or pastors is not.  We hope that the core motivation of the transaction has no approximation to lucre whatsoever—that each party to the transaction is maximizing things other than money.  To force the parties to follow the normative goals of the antitrust laws when it comes to ordering their religious activities fails to  respect to the very reasons that churches and synagogues exist.