My religion tells me to breach my contract with you

[Eugene Volokh]

        I confess that I'm quite troubled by the notion that I can deprive you of your contractual rights simply because I have a religious epiphany that tells me to do so.  Sure, my God may say this to me, but my God isn't your God, or the state's God.  Why should you have to bear a cost for my perception of what my God commands?

        What's more, if one accepts the notion of a general religious exemption regime from breach of contract law -- even if it's understood that sometimes / often / most of the time the religious exemption right would be "trumped" by the state interest -- then this might potentially apply to a huge range of contracts.  You won't have any meaningful reason to anticipate that this particular contract is vulnerable to a religious exemption claim on my part.  If I promise you that I won't reveal certain information about you (say that I'm a lawyer or a doctor or even just a business partner) but then I convert to a religion that requires me to speak up about what I see as another's sins, so much for your assurance of confidentiality.  If I promise to build a house for you, or to employ you, and I convert to a religion that tells me that it's sinful to build such houses (for instance, because I know that it'll be used for unnatural sexual acts) or to keep employing you, so much for the deal.

        Now maybe if Alan or Marty could propose a test that's both narrower and clearer than just "you can enforce your contract if such enforcement is narrowly tailored to a compelling government interest," these objections might lose some or all of their force.  But absent such a proposal, surely a test that says "all contracts may be abrogated unless continuing to enforce them passes strict scrutiny" would both cause serious practical problems and the moral problems inherent when I try to make you pay the cost of my religious awakening.

        Incidentally, I do not suggest that all the above contracts should be enforceable through specific performance -- the law wisely recognizes that it would be impractical and unduly harsh to do this in many instances.  But a true religious exemption would, I take it, foreclose damages awards, negative injunctions, and anything else that might "substantially burden" the religious exercise of breaching a contract.


Alan Brownstein writes:

With regard to Michael's free exercise example involving the pledge of
$1,000,000 to build a new church sanctuary, if the person pledging the
donation changes their religion and now believes that it would be a sin to
contribute to a "false faith," doesn't the enforcement of the pledge raise
any free exercise issue at all. It may well be that protecting the church's
reliance interest in this situation is a sufficiently important state
interest to justify enforcing the pledge.  But I'm not sure the state's
interest in enforcing contract law generally should always outweigh the
individual's interest in obeying the dictates of their faith. Some free
exercise exemptions that impose burdens on third parties still deserve to
be recognized as religious exemptions. If we recognize that an individual's
religious beliefs can change over time and what once seemed permissible is
now recognized to be prohibited conduct, why should the burdens caused by a
breach of contract always justify superseding  the individual's newly
understood religious obligations.
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