28 September 2013

Restatements (of the Law) and Religion

Ian Bartrum of UNLV has posted an interesting article here that addresses the intersection between religion, understood in the modern sense of a set of beliefs and practices that are grounded in some sense a transcendent source, and the massive undertaking of the American Law Institute to "restate" the common law of this, that, or the other field of law. As Bartrum no doubt correctly observes, "Generally, the Restatements have attempted to flesh out the constitutional protection of free exercise and disestablishment by treating religion either as a matter of fundamental right, or as presenting questions of dubious civil competence with which courts should avoid unnecessary entanglement." There are a few exceptions to this approach but their rarity renders them unimportant for the field in which I deploy a restatement of the law in teaching--contracts.

But these exceptions are nonetheless relevant to two related fields of private law: trusts and donative transfers. Can settlors or donors condition the benefits of the trust or gift on a donee's maintaining certain religious beliefs or practices? According to Bartrum, comparing the Restatement of Donative Transfers and the Restatement (Third) of Trusts, we see a move from recognizing the primacy of the donor to the freedom of a donee to practice or believe whatever she likes and enjoy the benefits of the donor's largesse. It is interesting to say the least that the reporter for the newest Restatement of Trusts acknowledges that it is counter to the older Restatement of Donative Transfers as well as most case law.

Bartrum speculates on the understanding of religion that may explain this inter-Restatement conflict. For what it's worth, I see is as part of the continuing trend of secularization. In other words, giving credence to the donor's or the donee's choices is equally consistent with individual autonomy. In addition, privileging the donor's choice has never seemed problematic under the "fundamental right" of "civil competence" tests of of free exercise or disestablishment. Thus, the move represents an inability of the latest "restaters" to understand religion at all. Religious beliefs and practices are simply not comprehensible and so should not be applied by courts outside a recognizable institutional context.

Whether increasing incomprehension will ultimately characterize the courts remains to be seen but I have little reason to believe it won't.

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