Abstract
I. INTRODUCTION 2II. THE PARTIES: RELIGIOUS AND CULTURAL FACTORS SURROUNDING ISLAMIC AND JEWISH MARRIAGE CONTRACTS 6III. THE SUPREME COURT'S ESTABLISHMENT CLAUSE JURISPRUDENCE 10A. Coercion 10B. Jones et al.: Church Property Cases as Religious Document Cases 12C. The Uncertain Applicability of Lemon v. Kurtzman 20D. Summary of Establishment Clause Limitations 33IV. RELIGIOUS DOCUMENTS IN STATE AND FEDERAL COURTS ...... 33V. RELIGIOUS DOCUMENTS IN SECONDARY SOURCES 48VI. INTERPRETING AND ENFORCING RELIGIOUS DOCUMENTS ........ 57A. A Four-Step Proposed Analysis 581. Step One: Is There a Contract? 592. Step Two: What Relief Is Sought? 593. Step Three: Interpretation Limits 604. Step Four: Coercion? 66B. Scope of Proposed Analysis 68VII. CONCLUSION 70In times past, many- perhaps most - wars had their origin in religious controversies. If today such [religions] as Arianism, Manichaeanism, Monophysitism, and Iconoclasm no longer rend empires, religious schismaticism remains prevalent, and religious disputes, unique in the passions and ideological furors they generate, offer a fertile source of civil conflict.1I. INTRODUCTIONA priest, a rabbi, and an imam walk into a contract lawyer's office. Fortunately, this is not the opening of a lawyer joke, but it might well be the prelude to a complicated constitutional question about the interaction of the First Amendment and contract law. Pastors, priests, rabbis, imams, religious schools, churches, religious businesses, and a wealth of faith-based groups all enter into contractual agreements. Not surprisingly, these agreements often contain religious language, and sometimes they even hinge on provisions invoking expressly religious concepts.2 Religious documents come in a variety of forms, including marriage contracts,3 disposition of property documents,4 agreements on a child's religious upbringing,5 commercial transactions,6 employment contracts, and arbitration agreements. In some states, these agreements have even been the subject of legislation.9 In sum, religious parties sometimes draft religious documents, and they do so in a variety of contexts. The infusion of potentially sacred obligations into the realm of secular contract law presents courts with a number of difficult questions.For example, although courts are charged to interpret and give effect to religious documents whenever possible,10 the judiciary is starkly constrained by the religion clauses of the First Amendment, especially the Establishment Clause. ' ' The conflicting commands to enforce contracts and yet to uphold the limitations of the Establishment Clause are not easily reconciled. What is a court to do when an agreement specifies that "the law of Moses and Israel" governs,1 states that disputes are to be referred to a "Christian Conciliation Service" for resolution,13 or requires a husband to pay a dowry arising from obligations set out in the Qur'an?14 How does a court interpret or enforce contractual terms that invoke religious matters?This Article takes direct aim at these questions by explaining the relevant Establishment Clause limitations, analyzing the governing case law from around the nation, and outlining a proposed model for judicial analysis of all religious documents. …