Doux Commerce, Religion, and the Limits of Antidiscrimination Law

This Article addresses the question of law, religion, and the market directly. It does so by developing three theories of how one might conceptualize the proper relationship between commerce and religion. The first two theories I offer are not meant to be summaries of any position explicitly articulated by any particular thinker. There is a paucity of explicit reflection on the question of markets and reli-gion and virtually no effort to generate broad legal theories of that relationship.

Rather, these theories are an attempt to explicitly articulate clusters of intuitions that seem to travel together. My hope is to show that these largely inchoate intuitions have a coherent structure and that it is easier to work out their implications and judge their merits when they are explicitly articulated. Any such attempt, of course, runs the risk of creating a straw man. My hope is that the gains in clarity and simplicity justify running that risk.

Furthermore, I believe that something like one of these two theories forms the basic assumptions of most of those involved in debates at the intersections of law, religion, and commerce. The third approach, which I label the doux-commerce theory, builds on arguments that I have advanced elsewhere. Doux commerce means “sweet commerce.” The theory harks back to eighteenth-century theorists of the market such as Montesquieu and Adam Smith who lauded the social and political effects of markets. I offer it as an attractive alternative to the other two approaches.