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Moreover, worries that judicial resolution of such claims will draw the court into religious debates, leading to government’s endorsement of certain religious institutions over others, seem overstated. Religious commercial disputes differ from the standard cases that raise these types of worries about governmental endorsement — such as litigation between religious factions over church property, or governmental support of religious institutions — where the government’s conduct could more naturally be interpreted as endorsing one religious institution over another.
Indeed, asking courts to resolve religious commercial disputes looks a lot more like asking courts to apply contested legal rules in discrete private litigation — something courts do all the time when asked to resolve cases that involve foreign law. And when tasked with interpreting foreign law, we do not ask courts to withdraw for fear of institutional incompetence or substantive complexity; to the contrary, courts are granted wide-ranging power to investigate the laws in question, including soliciting expert testimony. Thus, for a court to decide that Hebrew National was not providing the product it promised its consumers might very well just require asking various experts to educate the court as to what such standards look like.
To keep courts from resolving disputes over religious commercial transactions would be deeply troubling. It would mean that individuals who are the victims of contractual breaches and tortious conduct might not have any opportunity to secure redress for financially onerous harm. And while religious parties can sometimes use religious arbitration tribunals to resolve such claims, the underlying circumstances of many religious commercial disputes prevent parties from doing so. Indeed, closing the courthouse doors to religious commercial claims is particularly dangerous, given the increasing reliance within religious communities on commercial instruments to protect their simultaneously legal and religious interests. If we are to protect members of religious communities from legal wrongs, we need to recognize that these disputes do not simply float in the religious ether beyond the jurisdiction of our legal system. To the contrary, in a world of growing religious commercial conduct, we must ensure that religious communities have access to justice — which often means requiring that parties answer to a “lower” authority.
Michael A. Helfand is an associate professor at Pepperdine University School of Law and associate director of Pepperdine University’s Diane and Guilford Glazer Institute for Jewish Studies.