Michael Helfand on Contracts and the Right to Change Religions

I have been writing recently (here and here) on the intersection of contracts law and the First Amendment. In most cases, I argued, courts pay scant attention to contractual rights and obligations when they come up against First Amendment rights. It used to be otherwise, Michael Helfand (right) notes in his article, Contractual Commitments and the Right to Change Religion, forthcoming in the North Carolina Law Review.  He considers cases in which people make binding contractual agreements relating to religion but then change their religious convictions. 

People might enter into a divorce agreement in which each partner commits to raise the children in a certain set of religious beliefs of practices.  Parties might agree to adjudicate disputes through religious arbitral bodies. A congregation might enter into an agreement with a member of the clergy, but one or the other party might conclude that the other no longer follows the orthodox version of the faith. Courts used to enforce such agreements, reasoning that the parties had entered into contracts voluntarily and thus assumed the risk that their religious convictions might shift. Recently, courts have been more rigorous in their protection of religious exercise, and they have been allowing religious interests to win out over contractual commitments. Professor Helfand thinks that a mistake. 

Properly applied, contract law can ensure that religious contracts amplify religious freedom. Where such contractual obligations flow from the free and private choices of the parties, and not government coercion, enforcing religious contracts enhances authentic religious exercise. (5)

Contracts law defenses, such as impracticability and frustration of purpose, Professor Helfand argues, are up to the task of enforcing only those contractual commitments that promote the First Amendment principle of voluntarism. (5-6)

Tough cases abound. Professor Helfand recounts Weisberger v Weisberger. In that 2017 case, a divorced couple had agreed to raise their children in the Hasidic tradition.  The father sought sole custody on the ground that the mother had come out as Lesbian and was introducing the children to other members of the LGBT community. The New York appellate court refused to enforce the agreement, on the ground that courts cannot compel people to adopt a certain religious tradition. Professor Helfand notes that such decisions may constitute a special case.  Courts do not automatically enforce custody agreements but do so only when they further the best interests of the child. (15-16)

In cases involving the Jewish requirement that a husband provide a get before a couple can divorce, courts used to enforce Jewish marriage contracts (ketubot, illustrated at left) even after one party to the marriage had abandoned their faith on the ground that the law should hold them to their agreement. (20) Recently, however, courts have concluded that courts should not coerce people to behave in a way inconsistent with their religious beliefs and have refused to issue positive injunctions relating to gets. (20-21) 

Religious arbitration has, until recently, been another special case. Because the Federal Arbitration Act permits only limited judicial oversight of arbitral decisions, courts have enforced parties’ agreements to subject themselves to religious arbitration, even when one party is no longer an adherent of the relevant faith. But some legal scholars and courts are now subjecting that tradition to Free Exercise and statutory (RFRA) challenges.  However, Professor Helfand cites only one case, which involved allegations of rape by a Church of Scientology member, a cover-up, and harassment by church authorities. The court recognized a Free Exercise right to leave a religion. (21-26) Hard cases make bad law? Seems like ordinary unconscionability doctrine could have done the trick, given that it seems pretty unlikely that a church arbitral body would be free from bias against a party suing the church.

Professor Helfand next turns his attention to changes in belief in the context of the ministerial exception to non-discrimination law when the employer is a religious institution. Some ministerial exception cases seem clearly absurd. A cantor at a synagogue claimed that he was fired without the contractually-guaranteed notice of three “strikes” that justified termination. The court dismissed the claim, citing the ministerial exception, notwithstanding the fact that the contractual claim at issue had nothing ministerial about it. (28-29) Other courts have been more careful, distinguishing breach of contract claims from employment discrimination claims in the ministerial context. (29-30)

With this caselaw as a backdrop, Professor Helfand then proceeds to his main argument: that the enforcement of religious contracts, notwithstanding changed beliefs, does not not undermine religious freedom. Free exercise of religion and the enforcement contractual obligations can be reconciled as emanating from the same principle: voluntarism. The Article deftly establishes the extent to which both legal scholars and courts have understood protections of religious freedom in voluntaristic terms. People should be free to choose their religions and exercise their religions free from government interference. (33-37) Where courts can apply neutral general principles of contract law, doing so does not violate a principle of voluntarism, so long as the assumption of contractual obligations was a product of free and private choices. Contracts law, Professor Helfand argues, helps us determine whether the obligations in question were voluntary. (37-43)

Professor Helfand regards the freedom of religion and the enforcement of contractual obligations as mutually supportive of the principle of voluntarism. Contracts excuses, such as frustration of purpose and impracticability, enable contract law to establish when that principle would be thwarted by enforcement of religious contracts when one party is no longer an adherent of the religion whose dictates will govern. (43-64) 

At first blush, it might seem that contractual excuse undermines the sanctity of contracts and thus frustrates the voluntarism at the heart of contract formation. Not so, Professor Helfand argues, drawing on the scholarship of Hanoch Dagan. Rather, when we enter into contracts, we legislate for our future selves, and setting that private legislation aside is consistent with the voluntarism at the heart of Professor Helfand’s understanding of contracts theory, only when some unforeseen event that goes to a basic assumption of the contract either renders performance impracticable or frustrates the purpose of the party seeking excuse. In such circumstances, enforcing the contract would not enact the parties’ wills, because the parties never contemplated the unforeseen change negating their basic assumption. (52-54)

The problem with this analysis is that that the party seeking enforcement has a ready response.  The change in the other party’s beliefs was not unforeseen. The contractual provisions providing for resolution in accordance with the parties’ shared religious beliefs would be unnecessary if the parties’ continued adherence to those beliefs were guaranteed. The party seeking performance entered into an agreement assuming that the contract would be interpreted consistent with their religious beliefs, and they continue to operate on that assumption. From their perspective, not only was there nothing unforeseen, nothing has changed at all. Professor Helfand’s discussion of the problem of foreseeability (60-64), which focuses on the general possibility that a person might change their faith, does not, in my view, adequately account for the fact that fact that a contract that provides for a religious adjudication is, as a matter of fact, acknowledging the foreseeability of a loss of faith by one or the other party.

Notwithstanding the broad embrace of the voluntarist model by courts and the scholarly literature, there is a danger of overstating it. The state is not the only entity that may coerce assent. Contracts of adhesion create an illusion of free and voluntary choice that is often wholly lacking, as discussed in our post on Andrea Boyack’s work earlier this year.  Religious choices may be a product of upbringing rather than considered choice. Or one might choose a religious community based on factors other than adherence to religious doctrine. The trouble with Professor Helfand’s voluntarist model, it seems to me, arises most acutely when religious institutions impose form contracts on their adherents. In that context, one can argue that, both from a Free Exercise and from a freedom of contract perspective, the enforcement of religious contracts undermines the principle of voluntarism.

Professor Helfand’s preferred doctrines are excuses. They arise when there has been an unforeseen change in circumstances after the contract has been formed.  Impracticability and frustration of purpose do nothing to address failures of voluntarism in the formation of religious contracts. Moreover, it is hard to imagine that the party claiming excuse would not bear the risk of this unforeseen change of heart. This is especially so, as parties to such agreements could condition their performance obligations on continued adherence to the faith, as Professor Helfand acknowledges. (64) Finally, it is quite a stretch to think that a change in belief would render performance impracticable. Stretching the doctrine to allow excuse in cases where performance hinged on one party’s subjective beliefs would risk rendering all religious contracts subject to an implied condition so broad as to render the contractual promise illusory.

And so, while Professor Helfand proposes that contracts law, in the form of excuses, could invalidate religious contracts in some circumstances based on an unforeseen change in one of the party’s religious convictions, I think excuses would never provide a basis for non-enforcement of the contracts about which Professor Helfand writes. Professor Helfand does not disagree, as he notes that the excuses rarely succeed. (56) He provides no examples of these defenses working in connection with the cases he describes, and he notes the problem that the party seeking excuse must not be at fault for the occurrence of the unforeseen event. (58-60) Professor Helfand’s earlier work, focusing on unconscionability and duress defenses to religious contracts might hold more promise.

However, contracts law could produce the results that Professor Helfand desires either through a more exacting inquiry into whether the parties had given meaningful assent to the agreement or through an adoption of the Jamal Greene’s rights medication approach for which I have advocated in my scholarship.  The latter would entail rejecting the rights absolutism in which our First Amendment jurisprudence abounds and instead weighing the contracts-based and religious-liberty-based interests in each individual case and giving effect to the intentions of the parties in light of those interests.