Religious Freedom Through Market Freedom: The Sherman Act and the Marketplace for Religion

In prior work, I examined certain restraints by private religious organizations and concluded that the First Amendment did not immunize these organizations from antitrust liability. In short, the First Amendment did not preempt enforcing the Sherman Act against certain religious monopolies or cartels. This Article offers a stronger argument: First Amendment values demand antitrust enforcement. Because American religious freedoms, enshrined in the Constitution and reflected in American history, are quintessentially exercised when decentralized communities create their own religious expression, the First Amendment’s religion clauses are best exemplified by a proverbial marketplace for religions. Any effort to stifle a market organization of independent religious institutions is inimical to First Amendment religious freedoms, and any effort to employ economic or institutional mechanisms to engineer restraints on such freedoms is appropriately policed by the Sherman Act. Because the Sherman Act is squarely designed to resist unauthorized accumulations of centralized power, it is ideally suited to counteract restraints against religious freedoms and to liberate decentralized religious expression