Religious Freedom through Market Freedom: The Sherman Act and the Marketplace for Religion

By Richman, Barak D. | William and Mary Law Review, March 2019 | Go to article overview

Religious Freedom through Market Freedom: The Sherman Act and the Marketplace for Religion


Richman, Barak D., William and Mary Law Review


TABLE OF CONTENTS  INTRODUCTION                                    1525 I. PARALLEL LANGUAGES: THE SHERMAN ACT IN THE   1526    CONSTITUTIONAL SCHEME    A. The Quasi-Constitutional Language of the  1527       Sherman Act    B. The Consumer-Oriented Language of the       Religion Clauses                          1529    C. The Ministerial Exception                 1531 II. FREEDOM IN A RELIGIOUS MARKET               1534    A. Markets and Nonmarket Values              1535    B. The Case of a Religious Cartel            1537    C. Religious Life in a Free Market           1540 CONCLUSION                                      1543 

INTRODUCTION

During the only recorded debate on the First Amendment's Religion Clauses in the House of Representatives, James Madison spoke of the concern that "one sect might obtain a pre-eminence, or two combine together, and establish a religion to which they would compel others to conform." (1) He was referring to the danger of a government being controlled by a particular religious denomination, and thus advocated an Establishment Clause that would prevent a ruling coalition from imposing its religious will on others. (2) But his words also speak to the dangers of dominant sects asserting private power--either through unilateral or cartel arrangements--and suppressing the religious preferences of minorities through nongovernmental means.

The chief legal weapon available to combat the abuse of concentrated private authority is the Sherman Act. (3) It is explicitly designed to counteract powerful economic or professional entities from constraining the preferences and dynamism of individual creativity. (4) Thus, when religious organizations pursue private arrangements to preempt or constrain the ability of individuals or smaller groups from pursuing their own religious freedoms, the Sherman Act is not only an appropriate remedy but one that is naturally encouraged by the spirit and jurisprudence underlying the First Amendment. (5)

This Article follows prior work that examined certain restraints by private religious organizations and concluded that, as a doctrinal matter, the First Amendment did not protect these organizations from antitrust liability. (6) This Article offers a stronger argument: First Amendment values demand antitrust enforcement. Because American religious freedoms, enshrined in the Constitution and reflected in American history, are quintessentially exercised when decentralized communities create their own religious expression, the First Amendment's Religion Clauses are best exemplified by a proverbial marketplace for religions.

The Article first examines how the antitrust case law has developed to incorporate constitutional language, illustrating the Sherman Act's importance to the constitutional framework and the natural application of antitrust law to secure constitutional values. (7) It then examines Religion Clause cases and reveals how centrality of choice and personal preference illuminate First Amendment jurisprudence. (8) This emphasis on choice, much like the reverence afforded to consumers in antitrust cases, is especially heightened when religious organizations make hiring decisions--thus acting as both religious and economic actors--as illustrated in the ministerial exception cases. (9) The Article concludes that the Religion Clauses and the Sherman Act reinforce each other, offering effective preservation of religious liberty against public and private authority alike.

I. PARALLEL LANGUAGES: THE SHERMAN ACT IN THE CONSTITUTIONAL SCHEME

The Supreme Court's antitrust jurisprudence closely parallels its Establishment Clause jurisprudence's focus on the importance of individual choice to our constitutional scheme. (10) This Part briefly reviews the Court's emphasis on personal choice in both its antitrust and Establishment Clause cases. (11) It then focuses on the importance that the Court places on congregations being allowed to choose their own clergymen free from outside influence. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

Religious Freedom through Market Freedom: The Sherman Act and the Marketplace for Religion
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
Items saved from this article
  • Highlights & Notes
  • Citations
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Search by... Author
    Show... All Results Primary Sources Peer-reviewed

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.