Professor Michael Helfand, "Contractual Commitments and the Right to Change Religions" -- North Carolina Law Review (forthcoming)

Professor Michael A. Helfand's article "Contractual Commitments and the Right to Change Religions," (SSRN) will be published in the North Carolina Law Review. The article argues that contract law is far more capable than constitutional law in policing the line of autonomous self-determination in religious contract enforcement.

Abstract of "Contractual Commitments and the Right to Change Religions"

Religious contracts have long been a feature of religious life and commerce in the United States. Across a range of contracting contexts—property, employment, arbitration and family law, to name a few—parties regularly enter into agreements where performance is measured against religious standards and objectives. But in more recent years, courts and scholars have begun questioning the routine enforcement of such agreements when one of the parties has subsequently changed their faith. To these critics, enforcing agreements under such circumstances threatens to undermine religious freedom by tethering parties to religious obligations in which they no longer believe. Indeed, for this reason, a growing number of scholars have argued against enforcing religious contracts; and a number of courts have begun to follow suit. This Article argues that this trend is misguided. Courts and scholars should not view religious contract enforcement and religious freedom as in conflict. Instead, they should view them as mutually reinforcing. At its core, religious freedom rests on the principle of voluntarism—a principle that entails valuing, and protecting, authentic religious conduct. In turn, a commitment to religious freedom aims to protect private choices to pursue authentic religious conduct free from government coercion or improper persuasion. Contract law—with its central focus on assent, autonomy and self-determination—has the doctrinal resources to promote principles of voluntarism. Indeed, it already deploys a readymade set of defenses—such as impracticability and frustration of purpose—that directly address circumstances where parties have changed their faith after contract formation. In this way, contract law—as opposed to constitutional law—is far more capable of policing the line of autonomous self-determination, ensuring that religious contract enforcement promotes the First Amendment’s core commitment to religious voluntarism.