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The challenge of co-religionist commerce.

TABLE OF CONTENTS

Introduction
I. The Translation Problem
II. New Formalism
      A. Religious Goods and services
      B. Traditional Religious Agreements
III. Establishment Clause Creep
      A. Contract and Context: Narrowing the Space for
         Neutral Principles
      B. Confusing Religious Doctrine with Sociological
         Patterns: Avoiding Neutral Principles of Law
IV. Toward a Better Contextualism
      A. Disentangling Co-Religionist Commerce from Co-Religionist
         Context
      B. Employing Co-Religionist Context to Interpret Co-Religionist
         Commerce
Conclusion


Introduction

Though a rich tradition warns that mixing religion and money corrupts both, (1) there is a great deal of "co-religionist commerce" in America--that is, commerce between co-religionists who intend their transactions to adhere to religious principles or to pursue religious objectives. (2) Prominent examples of co-religionist commerce in the United States include a $4.6 billion Christian-products industry, (3) a $12.5 billion kosher-food market, (4) and a growing share of an $800 billion global Sharia-compliant finance market. (5)

In recent years, American religious communities have become increasingly sophisticated players in commercial markets, developing legal instruments that comply with the demands of religious dictates while engineering substantial business transactions. (6) Religious institutions have adopted employment agreements and arbitration systems that reflect substantive religious objectives, (7) houses of worship have provided their constituents with a growing array of commercial services, (8) and businesses have drafted increasingly complex and creative legal documents to ensure compliance with religious standards. Co-religionist commerce is not just big business, it is also a sophisticated practice of law. And like any other modern industry, co-religionist commerce and its legal framework rely heavily on the formal legal support--enforcement of contracts, protection against torts, and adjudication of disputes--that is necessary to sustain all commercial arrangements.

Because of its ecclesiastical qualities, however, co-religionist commerce presents an unusual challenge to American law. When commercial disputes arise among co-religionists, courts are asked--for example, in determining the parties' intents or customary norms--to interpret religious terminology, standards, and practices. (9) Courts therefore often shy away from adjudicating co-religionist commercial disputes, fearing that intervention would impermissibly contravene prevailing interpretations of the Establishment Clause. (10) Yet courts also recognize that refusing to issue rulings both abdicates the judicial responsibility to resolve legal disputes (11) and withdraws the legal infrastructure that is routinely available to--and necessary to support--secular commerce. (12) Constitutional doctrine has long recognized this challenge and has instructed courts,

when confronted with disputes that are imbued with ecclesiastical circumstances, to adjudicate on the basis of "neutral principles of law"--that is, to issue rulings based "on objective, well-established concepts of [] law familiar to lawyers and judges." (13) Relying on neutral principles of law allows courts to resolve disputes among co-religionists while avoiding "entanglement in questions of religious doctrine, polity, and practice." (14)

Unfortunately, the neutral-principles framework has proven less successful than participants in co-religionist commercial markets might have hoped. The core problem lies in a translation difficulty. Parties to co-religionist commercial agreements often lack the flexibility to replace religious terms in their agreements with secular terms, and therefore cannot contract around the Establishment Clause. (15) For example, parties entering into purchase agreements for kosher food or into employment agreements for ministers seek a certain type of religious product or service that cannot be described without reference to religious requirements or religious standards. In other instances, co-religionist commercial agreements cannot be modified from their traditional form if they are to have their desired religious effect. (16) For example, religious marriage contracts--such as the mahr in Muslim marriages (17) or the ketubah in Jewish marriages (18)--often assign financial commitments through the use of religious references. But assigning these obligations with purely secular terminology would undermine the religious significance of the marriage ceremony.

This translation problem need not foreclose the possibility of predictable and enforceable co-religionist commercial transactions. Courts do, on occasion, embrace a contextual approach to understanding ecclesiastical terms within a neutral framework. This flexible interpretive approach can secure religious commercial transactions, even as it sometimes requires delving into customary norms to extract commercial substance from religious principles or permitting evidence from religious authorities to translate ecclesiastical terms into secular language.

Employing contextualism as a response to the translation problem, however, has been stymied by two doctrinal developments--one in commercial law and the other in constitutional law. In commercial law, a subjective or contextual approach to understanding co-religionist commercial disputes has been discouraged by what private-law scholars have called New Formalism. (19) New Formalism refers to trends in court decisions and legal scholarship that increasingly advocate textual interpretations of contracts between merchants. A reaction to Karl Llewellyn's and the Uniform Commercial Code's (UCC's) embrace of business customs and general good-faith standards, New Formalism urges courts to refrain from inquiring into contextual elements--such as customary norms, notions of equity, and relational principles--when interpreting and enforcing contractual arrangements. In turn, New Formalism restricts courts from inquiring into the subjective intent of parties or extrinsic evidence that might inform the contracting environment between parties. (20) Under such a New Formalist framework, courts cannot invoke contextual evidence to interpret religious terminology in co-religionist commercial agreements. (21)

And in constitutional law, courts have exhibited a growing wariness of adjudicating disputes that involve, even tangentially, ecclesiastical interests. This has led to what this Article refers to as "Establishment Clause Creep," a growing tendency by courts to interpret the Establishment Clause expansively to preclude adjudication of co-religionist disputes that, at their core, are commercial in nature. In such instances, courts conflate the commercial objectives of a transaction with the religious commitments of the parties, (22) thereby undermining the core commitments of the neutral-principles approach to co-religionist commerce. (23) When courts refuse to adjudicate co-religionist disputes, damages flowing from commercial fraud, (24) professional defamation, (25) and contractual breach (26) are left unremedied.

Together, New Formalism and Establishment Clause Creep form the Scylla and Charybdis of co-religionist commerce. On the one hand, New Formalism requires parties to use explicit language, but on the other hand, Establishment Clause Creep causes courts to withdraw whenever a dispute implicates, even tangentially, an ecclesiastic issue. Co-religionists are unable to characterize their dispute in either implied or explicit terms.

The combination of these two doctrinal trends has denied coreligionists the institutional support that is available to other merchants. (27) The most significant result has been that co-religionists have had great difficulty drafting contracts that both accurately capture their commercial intent and contain language that is ultimately enforceable in court. But the doctrinal combination also exposes co-religionists to tortious economic harm because economic torts between co-religionists--including antitrust disputes--also involve a commingling of neutral principles with religious context. By removing the efficiencies typically gained by having courts secure contract and property rights and protect parties from tortious harm, these doctrinal developments generate substantial economic costs. And by imposing a unique economic burden on religious conduct, these developments also do injury to religious liberties.

Indeed, these fundamental challenges to co-religionist commerce are even more concerning because co-religionist commerce is a growth industry. (28) Continued globalization of commercial relationships (29) and America's changing demographics (30) all but guarantee that co-religionist commerce will continue to represent a growing share of the nation's economy. Moreover, these commercial trends are expanding at exactly the moment when tensions between religious exercise and commercial objectives stand at the center of some of the most foundational church-state debates in the United States. For example, the Supreme Court's 2012 decision in Hosanna-Tabor v. Equal Employment Opportunity Commission (31) ruled that the First Amendment shields religious institutions from liability under certain antidiscrimination laws. (32) That same year, the Supreme Court of New Mexico imposed liability under the state's public-accommodations law on a photographer who, citing her religious commitments, refused to provide her professional photography services at a same-sex marriage. (33) Perhaps most significantly, on the final day of the 2014-15 term, the Supreme Court held in Burwell v. Hobby Lobby (34) that the federal Religious Freedom Restoration Act affords protection to closely held for-profit corporations. (35) Consequently, certain religiously motivated corporations need not comply with the Affordable Care Act's "contraception mandate" (36) when doing so would violate the religious conscience of those who own the corporation. (37)

All of these cases involve parties that both engage in commercial conduct and profess religious commitments, and they highlight how the unique statutory and constitutional treatment of religion can inadvertently undermine the security of voluntary commercial relationships. Therefore, viewing these cases in relation to coreligionist commerce both reveals how impactful these cases can be on significant areas of commerce and suggests how critical it is for the law to be able to distinguish between the blurred categories of commerce and religion.

This Article argues that courts should recognize the unique challenges of co-religionist commerce and should appreciate how the dual effects of New Formalism and Establishment Clause Creep contravene parties' intents and undermine growing commercial markets. Part I focuses on the root of the legal conundrum by examining the "translation problem" and how it poses a unique challenge to the neutral-principles framework. Parts II and III then identify the emerging trends of New Formalism and Establishment Clause Creep and explain how they constitute a dual threat to coreligionist commerce. Part IV then outlines a path for limited contextualism that can support co-religionist commerce while making better use of the neutral-principles doctrine and enabling parties to engage in the commercial dealings they desire.

I. THE TRANSLATION PROBLEM

The neutral-principles framework was born out of the Supreme Court's attempt to successfully navigate a complex balancing act. (38) The Court hoped to preserve the judiciary's obligation to resolve disputes between co-religionists without impermissibly resolving religious questions. (39) To navigate this delicate balance, the Court encouraged participants in co-religionist commercial markets to translate their agreements, replacing religious terminology with secular analogs. The Court emphasized, in the context of church-property disputes, that "[s]tates, religious organizations, and individuals must structure relationships involving church property so as not to require the civil courts to resolve ecclesiastical questions." (40) And more generally, the Court assured parties that their co-religionist commercial dealings would be supported and enforced so long as the questions presented would "rel[y] exclusively on objective, well-established concepts of ... law familiar to lawyers and judges." (41)

Thus, the Supreme Court committed itself to neutral principles of law presuming that parties can and would structure their legal dealings in secular language to avoid Establishment Clause problems. (42) In this way, the neutral-principles framework leveraged what the Supreme Court called "the peculiar genius of private-law systems in general--flexibility in ordering private rights and obligations to reflect the intentions of the parties." (43) It relied on the dynamism of private law--and particularly of drafting contracts--that empowers parties to adjust to legal parameters and craft their dealings within the shadow of the law. (44) This presumption--that parties can deftly respond to doctrinal constraints (45)--stands at the very epicenter of the Supreme Court's neutral-principles project (46) and sustains the belief that courts can remain true to First Amendment values without abdicating their foundational dispute-resolution responsibilities. (47)

Many religious objectives cannot be captured in alternative secular terminology, however, and thus many co-religionist commercial instruments resist translation. (48) One reason for this "translation problem" is that parties enter co-religionist commercial arrangements to purchase religious goods or secure religious performance, but these religious goods and services are often not susceptible to description in secular terminology. Frequent examples include the contractual obligations of a minister, (49) or the religious standards for supervising kosher products. (50) In drafting such agreements, parties aim to create commercial or financial arrangements that will comport with shared religious rules and values. Reference to specific religious terms is essential to the agreement. To use the above examples, a party seeking to ensure that he is purchasing kosher food cannot translate that requirement into secular terminology; (51) and a congregation that retains the contractual right to terminate a minister for "cause" cannot incorporate secular terminology that captures the religious standards of conduct expected within the given religious community. (52) Such contractual expectations are not just too multifarious to be contractually memorialized, but they incorporate by reference religious rules and values that are inherently religious and therefore lack secular analogs. (53)

A second reason parties to co-religionist commercial agreements lack the ability to modify their agreements is that their religious traditions and doctrines place formal restrictions on the structure and terms of the relevant documents. (54) Examples of this dynamic arise regularly in the family-law context, particularly in cases of marriage and divorce. Within Jewish (55) and Islamic (56) communities, traditional marriage ceremonies require the couple not only to execute religious documents that have important symbolic and religious value, but also to include provisions in those documents that assign financial obligations between the couple. (57) Some couples may, of course, fully understand and embrace both the symbolic and financial aspects of these agreements; others may sign them simply to conform to longstanding family traditions. (58) But the limitations placed by religious doctrine on the form and substance of these documents prevent the parties from ensuring that the terms of their co-religionist commercial agreements reflect the precise intentions of the parties.

The inherent obstacles to translating religious obligations into secular terminology have long served as a fundamental critique to the Supreme Court's neutral-principles approach. (59) The doctrine presumes that religious parties can incorporate purely ecclesiastical customs, words, and documents into neutral language. Put another way, it presumes that parties can use secular language to represent religious intents that are beyond what is apparent to the objective observer. Thus, the neutral-principles approach presents a classic challenge in legal interpretation, pitting objective methods against subjective intents.

This inherent disconnect between the parties' subjective intentions and the need to use secular language causes predictable problems. Factfinders, for example, are likely to make interpretation errors, either perceiving an instrument that represents symbolic and ecclesiastical value to be purely commercial, or interpreting intentionally commercial terms to have unintended ecclesiastical meaning. As a result, these translation challenges are more than mere inconveniences, as they strike at core features of interpretation. They pose a direct challenge to the motivation underlying the neutralprinciples approach, which the Supreme Court designed so that courts can interpret and enforce co-religionist commercial agreements to "reflect the intentions of the parties." (60)

One way to avoid the translation problem is to take the Supreme Court at its word and, irrespective of interpretive canons, place a greater primacy on determining the "intentions of the parties." (61) Instead of interpreting co-religionist commercial agreements textually, courts can take a contextual approach and place a greater primacy on divining parties' intents. This would involve adopting permissive rules on parol and extrinsic evidence, emphasizing course of dealing and customary norms, and seeking subjective intents rather than objective manifestations. Thus, instead of trying to determine--as an objective matter--what the word "kosher" means in a consumer contract or how to define "cause" in an employment agreement with a house of worship, courts could interpret such terms by trying to determine what the parties intended for the provisions to mean or how those words are understood in a particular commercial industry. Similarly, when faced with traditional religious agreements--such as religious marriage contracts--in which religious doctrine prevents parties from tinkering with the customary terms, courts could interpret the agreement with reference to the subjective intent of the parties and other contextual considerations. Doing so would align contract enforcement with the intentions of the parties, thereby fulfilling the overall purpose of the neutral-principles approach to coreligionist commerce, while still avoiding any need to delve into ecclesiastical matters. (62) Unfortunately, two doctrinal trends--one in commercial law, the other in constitutional law--are making contextual interpretation increasingly difficult. Developments in commercial law encourage courts to limit the use of contextual and parol evidence, thereby reducing parties' ability to explain the intents behind secular language. Yet developments in Establishment Clause cases have expanded what courts consider to be ecclesiastical, and thereby have reduced parties' ability to codify their intentions in writing. The combination limits ex ante what co-religionists can write into an agreement, and ex post how co-religionists can actualize their intentions.

II. NEW FORMALISM

One appropriate judicial response to the challenges of interpreting co-religionist commercial instruments would be to focus not on the content of religious doctrine, but on the intentions of the parties. (63) As long as courts avoid defining religious terms or interpreting religious doctrine, they can circumvent Establishment Clause prohibitions. (64) In turn, by marshaling the variety of contract doctrines that focus not on religious doctrine, but on the contracting context, courts can leverage doctrinal tools that avoid the pitfalls of the Establishment Clause while still interpreting and enforcing coreligionist commercial instruments that incorporate religious terminology. (65)

The growing influence of New Formalism--which now enjoys strong scholarly and judicial support (66)--has limited courts' use of these doctrines for permissive interpretation. New Formalism has been described as "anti-antiformalism," since it is a reaction to, and is intended as a correction to, the realist jurisprudence that wrested contract law from the formalism that defined it under williston and other early twentieth-century jurists. (67) Realists, led by Karl Llewellyn, deigned to shape contract law in the mid-to-late twentieth century to incorporate the nascent rules embedded in the customs and practices of commercial parties. (68) The court's job was to "look for the law in life" and then incorporate an "immanent law" into contractual disputes. (69) Adjudicating under Llewellyn's realism--and the UCC that Llewellyn crafted--therefore required the costly tasks of understanding the contracting environment and discovering the immanent norms surrounding each case, such as the subjective intent of the parties, the parties' course of dealing, and the given industry's standards. (70)

New Formalism, primarily motivated by reducing the costs of contracting, squarely aims at reintroducing formalism into contract law. But unlike the formalism of the early twentieth century, in which traditional legal definitions and logic dictated contract law, (71) New Formalism is motivated by a desire to convey predictable outcomes to contracting parties should a dispute spill over into court. (72) New

Formalism therefore relies on bright-line rules over standards, textual interpretation over either contextual approaches or permissive rules on allowing extrinsic evidence to explain ambiguous language, and penalty rules on the definiteness requirement over encouraging courts to fill contractual gaps. (73) The logic of New Formalism is that predictable and inexpensive court interventions--even interventions that are unlikely to accurately implement what the parties originally intended--would be mutually preferred ex ante by contracting parties, especially parties likely to engage in multiple contractual relations. (74) If outcomes are easily foreseen, then costly litigation can be avoided. Meanwhile, drafting errors are simply corrected in subsequent contracts, and social norms and extralegal enforcement stabilize ongoing contracting relations without court intrusion. (75)

On one level, New Formalism is well suited to cater to parties, like co-religionists, who engage in repeat transactions, have shared norms that are more familiar to the parties than to any adjudicating factfinder, and frequently use nonlegal norms to supplement legal penalties. (76) However, at its core, the central doctrines in New Formalism presume that parties can adapt their commercial agreements to account for problematic legal doctrines--a presumption that often does not hold true for co-religionist commerce. Thus, because parties to co-religionist commercial agreements often cannot avoid the consequences of the Establishment Clause, a court's failure to employ antiformalist interpretive tactics--such as inquiring into the parties' shared subjective intent and relational history--withholds from the factfinder information that is essential to understand the dispute. These antiformalist interpretive methods are crucial to the viability of co-religionist commerce precisely because of certain Establishment Clause prohibitions against judicial resolution of religious questions. Thus, the Establishment Clause prohibits courts from using objective methods to interpret co-religionist commercial agreements, whereas New Formalism forecloses using subjective and contextual methods of interpretation as an alternative.

Below we consider two types of problems posed by New Formalism to co-religionist commerce: First, formalism can prevent courts from interpreting and enforcing contracts for religious goods and services. Second, courts sometimes misapprehend the contractual intent of the parties to traditional religious contracts. In both instances, parties to co-religionist commerce cannot translate their agreements into secular terminology. And New Formalism--in its refusal to use contextual evidence to surmise the parties' intents--distorts co-religionist commerce in deeply troublesome ways, preventing parties from crafting financial instruments that achieve both commercial and religious objectives.

A. Religious Goods and Services

The sale of religious goods and services stands as one of the paradigmatic forms of co-religionist commerce. (77) Producers of religious goods and services advertise, market, and sell to clientele specifically interested in the religious nature of these goods and services. (78) In so doing, these producers often employ religious terminology to describe their goods and services to attract the interest and earn the trust of prospective purchasers. But the success of such co-religionist markets is predicated on the ability of courts to interpret, enforce, and otherwise hold participants accountable in these co-religionist markets when they employ religious terminology to market and sell religious goods and services. Because parties cannot always adequately describe the religious goods and services in secular terminology, courts often abstain from interpreting coreligionist agreements so as to avoid running afoul of the Establishment Clause. And a purely formalist approach to interpreting religious terminology prevents courts from using contextual evidence to uncover the parties' shared understandings.

For example, consider the recently dismissed class-action lawsuit against ConAgra, the parent corporation of the Hebrew National brand. (79) According to a complaint filed in 2012, ConAgra advertises and sells meat products under the Hebrew National label, describing them as "100% kosher" "as defined by the most stringent Jews who follow Orthodox Jewish law." (80) The plaintiffs contended, however, that contrary to these representations, Hebrew National meat products did not satisfy these kosher standards. (81) As a result, purchasers of Hebrew National meat products allegedly overpaid for these products, mistakenly believing them to be "100% kosher." (82) And having misrepresented the kosher quality of these meat products, the plaintiffs claimed that ConAgra should be held liable for damages for breach of contract, negligence, and violation of various consumer-protection laws. (83)

The Hebrew National litigation was far from the first time questions over the meaning of "kosher" made their way into U.S. courts. (84) A number of states had attempted to incorporate definitions of kosher into consumer protection legislation, only to have such legislation struck down as violating the Establishment Clause. (85) The District Court of Minnesota similarly dismissed the Hebrew National lawsuit, concluding--as prior courts had when scrutinizing consumer-fraud legislation that regulated the labeling of kosher food--that "[t]he definition of the word 'kosher' is intrinsically religious in nature, and this Court may not entertain a lawsuit that will require it to evaluate the veracity of Defendant's representations that its Hebrew National products meet any such religious standard." (86)

But, by conflating the Hebrew National lawsuit with litigation over kosher legislation, the court missed the fundamental difference between the two. Kosher legislation raised Establishment Clause concerns because it entailed governmental endorsement of a particular definition of the term "kosher." (87) By contrast, the Hebrew National lawsuit avoided these Establishment Clause concerns because it involved private plaintiffs who simply alleged that the defendant had mislabeled its product.

This key difference presented the district court with an opportunity to allow the suit to go forward. For, instead of delving into the objective meaning of the word "kosher," the court could have used contextual evidence to evaluate whether the parties had a shared understanding of what "kosher" meant. By shifting its focus from the objective meaning of "kosher" to the subjective understanding of the parties, the court therefore could have focused on the central and meaningful question of whether Hebrew National's labeling was misleading without running afoul of Establishment Clause prohibitions.

Indeed, Hebrew National had provided some of that context in its advertising by specifically referencing "Orthodox" standards of kosher. (88) Hebrew National's advertising campaign may have intended those terms to convey a particular representation to potential consumers. Thus, interrogating the subjective intent of the parties might have yielded a shared interpretation of the term that could have been employed to evaluate whether or not the advertising constituted either false advertising or a breach of contract.

Moreover, the court might have used contextual evidence to evaluate Hebrew National's "kosher" representations in light of various aids of interpretation. It could have considered the consistency of Hebrew National's implementation of its kosher standards under the course-of-dealing rubric for contract interpretation (89)--a point made by the plaintiffs in their brief on the motion to dismiss. (90) And, maybe most materially, the court might have considered the commercial standards for kosher certification, which had become relatively uniform as a result of various market pressures. (91)

The district court's failure to approach the Hebrew National lawsuit through a contextual lens highlights how the case is not simply about judicial interpretation of the Establishment Clause, but is more fundamentally about judicial refusal to consider context when interpreting private agreements. Such an outcome is fairly typical of how New Formalism constrains a court's ability to parse private agreements between parties. The court assumed that the only method for adjudicating the plaintiffs' claims was to provide an objective interpretation of "kosher" based solely on the formal text of its commercial representations. But a contextual approach could have provided methods for interpreting the term "kosher" that did not require becoming enmeshed in religious doctrine. A contextual approach could have provided an equally useful answer to a slightly different question: Did the parties have a shared understanding of the term kosher?

The Hebrew National lawsuit is essentially about the interpretive constraints of New Formalism. When contextual interpretive tools are taken off the table, however, courts face the false dilemma of dismissing co-religionist commercial claims or delving into the objective meaning of religious terminology. To be sure, the use of contextual evidence--such as subjective intent, course of dealing, course of performance, and trade usage--might have been insufficient to determine whether Hebrew National could be held liable for consumer-protection fraud or breach of contract. But a categorical embrace of New Formalism prevents courts from even exploring this opportunity.

The challenge posed by New Formalism to co-religionist commerce also arises when parties seek to incorporate adherence to religious rules or doctrine as part of their commercial exchange. In Katz v. Singerman, (92) for example, the court considered whether to enjoin a synagogue from allowing mixed seating (that is, permitting men and women to sit together) on the grounds that it would violate conditions placed by the grantor who donated the building. (93) The grantor, Benjamin Rosenberg, had donated property to the Chevra Thilim Congregation on the condition that, among other things, the building would "only be used as a place of Jewish worship according to the strict ancient and orthodox forms and ceremonies." (94) The congregation's board of directors accepted the donation from Rosenberg on the specific condition that, among other things, the building would be used "for the worship of God according to the Orthodox Polish Jewish Ritual." (95) When the congregation considered passing a resolution to permit mixed seating, the plaintiffs sought an injunction, arguing that such a practice would fail to qualify as "worship according to the strict ancient and orthodox forms" and

"Orthodox Polish Jewish Ritual," and thus would violate the conditions of the donation. (96)

The Supreme Court of Louisiana, however, refused to enjoin the resolution, concluding that its conditions were insufficiently definite, clear, or specific. (97) In reaching this conclusion, the court's focus was first and foremost formalistic, focusing its inquiry on the objective meaning and content of "Orthodox Judaism." The court considered conflicting expert testimony over whether Orthodox Judaism permitted mixed seating at services, (98) and on this record, it concluded that the formal meaning of the conditions provided insufficient guidance to permit judicial enforcement of the terms. (99)

To be sure, the court in Katz did--at least for a moment--consider mining antiformalist resources to interpret the term "Orthodox Judaism" by considering what the grantor himself actually meant when employing the phrase "Orthodox Judaism." (100) But instead of engaging in a contextualist inquiry--and considering actual evidence regarding the grantor's intent--the court folded the inquiry into its larger formalist picture, concluding that "[i]t is reasonable to presume that when Benjamin Rosenberg made the donation in question he was aware of the fact that the ancient Jewish religion had in the past undergone certain changes, modifications or evolutions in its ritual, forms, and ceremonies." (101) On this basis, the court inferred "that he must have contemplated that such changes would inevitably occur in the future" (102) and opted against gathering more evidence to interpret what was meant by "Orthodox Judaism." (103)

Cases like Wallace and Katz significantly endanger co-religionist commerce because they so severely limit the flexibility of important ecclesiastical terms. (104) Because co-religionist transactions routinely employ ecclesiastical references to specify their relations, the translation problem already limits their ability to use alternative terms. New Formalism further constrains parties' ability to elaborate or explain, ex post, through parol or contextual evidence, what they mean when they use particular ecclesiastical terms. Unsurprisingly, courts interpreting religious terminology (to the degree the Establishment Clause permits) see far less nuance, depth, and variation in those terms than do the parties who chose them. This is particularly true for terms that apply to a variety of uncertain circumstances over an extended period of time. (105) Consequently, a formalist approach that prohibits parties from explaining themselves too often leads to a misunderstanding or undermining of the parties' intents. In these instances, formalist legal reasoning not only impedes co-religionists from seeking to engage in rudimentary and mutually beneficial commercial exchange, but it even undermines the very objectives of New Formalism. Rather than enabling parties to write clear, readily enforceable contracts, New Formalism can invalidate many effective, efficient contractual references that co-religionists are likely to use. Courts' commitment to formalism leaves the parties with little leeway in enacting their contractual intents.
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Title Annotation:Introduction through II. New Formalism A. Religious Goods and Services, p. 769-796
Author:Helfand, Michael A.; Richman, Barak D.
Publication:Duke Law Journal
Date:Feb 1, 2015
Words:4980
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