2011] 157 FIGHTING FOR THE DEBTOR‟S SOUL: REGULATING RELIGIOUS COMMERCIAL CONDUCT Michael A. Helfand * INTRODUCTION Courts generally encounter religion in a familiar set of circumstances, such as controversies over prayer in public schools, 1 government funding for religious institutions and initiatives, 2 and religious displays on govern- ment property. 3 Accordingly, the “religion” that courts encounter is one typified by religious symbols, prayer, education, and faith. 4 However, such cases implicate only a small sliver of the religious con- duct pursued within many religious communities. For some religious groups—what are often referred to as religious legal communities 5 — * Associate Professor of Law, Pepperdine University School of Law; Associate Director of The Diane and Guilford Glazer Institute for Jewish Studies; J.D., 2007, Yale Law School; Ph.D., 2009, Yale Political Science Department. I would like to thank the participants at the Religious Legal Theory: State of the Field Conference at St. John‟s University School of Law, held in November 2010, as well as Robert Anderson, Michael Broyde, Gregory McNeal, Grant Nelson, Ellen Pryor, Bob Pushaw, Chaim Saiman, and Stephen Ware for their extraordinarily helpful and insightful comments on earlier versions of this Article and Jonathon Cherne for his research assistance. 1 See, e.g., Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 294 (2000); Lee v. Weisman, 505 U.S. 577, 580 (1992); Wallace v. Jaffree, 472 U.S. 38, 40-42 (1985); Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 205, 207 (1963); Engel v. Vitale, 370 U.S. 421, 424-25 (1962). 2 See, e.g., Locke v. Davey, 540 U.S. 712, 715 (2004); Zelman v. Simmons-Harris, 536 U.S. 639, 644-45 (2002); Mitchell v. Helms, 530 U.S. 793, 801 (2000); Agostini v. Felton, 521 U.S. 203, 232 (1997); Aguilar v. Felton, 473 U.S. 402, 404 (1985), overruled on other grounds by Agostini v. Felton, 521 U.S. 203 (1997); Lemon v. Kurtzman, 403 U.S. 602, 606-07 (1971); Walz v. Tax Comm‟n of N.Y., 397 U.S. 664, 666 (1970); Illinois ex rel. McCollum v. Bd. of Educ., 333 U.S. 203, 204-05 (1948); Everson v. Bd. of Educ., 330 U.S. 1, 3 (1947). 3 See, e.g., McCreary Cnty. v. ACLU of Ky., 545 U.S. 844, 850 (2005); Van Orden v. Perry, 545 U.S. 677, 681 (2005); Cnty. of Allegheny v. ACLU, 492 U.S. 573, 578 (1989); Lynch v. Donnelly, 465 U.S. 668, 670-71 (1984). 4 This should be of no surprise given the heavy Protestant influence, with its focus on conscience, on the religion clauses of the First Amendment. See MICHAEL WALZER, SPHERES OF JUSTICE: A DEFENSE OF PLURALISM AND EQUALITY 243-45 (1983); Stephen M. Feldman, A Christian America and the Separation of Church and State, in LAW AND RELIGION: A CRITICAL ANTHOLOGY 261, 264-65 (Stephen M. Feldman ed., 2000); Ruti Teitel, A Critique of Religion as Politics in the Public Sphere, 78 CORNELL L. REV. 747, 756-59 (1993). 5 See Michael A. Helfand, Religious Arbitration and the New Multiculturalism: Negotiating Conflicting Legal Orders, 86 N.Y.U. L. REV. (forthcoming 2011) (manuscript at 25), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1773928; Mark L. Movsesian, Fiqh and Canons: Reflections on Islamic and Christian Jurisprudence, 40 SETON HALL L. REV. 861, 866 (2010) (noting that Islam, as opposed to Christianity, “has thought it vital to develop a comprehensive legal system to