Religious Riders and the Sherman Act

Authors

Bailey Sanders, Duke University

Abstract

Can corporations engage in anticompetitive behavior on the basis of religious belief? While the answer may seem like an obvious no, in fact this question has largely been overlooked. It has hovered at the margins of the debate over religious exemptions: Proponents of religious exemptions have essentially argued that there is no harm in providing such exemptions to businesses because a competitive market will ensure consumers who might be denied services or goods by a religious firm can still obtain those goods and services elsewhere. But what if religiously minded businesses act in ways that are specifically designed to limit access to certain goods and services not just with respect to their own businesses but other businesses as well?

In this Article, I apply an antitrust lens to Catholic hospitals’ practice of imposing religious restrictions on secular, competitor collaborators, as well as post-sale religious restrictions on the sale of Catholic hospitals to secular buyers. Although Catholic hospital stakeholders assert that these contractual arrangements are necessary to protect the Catholic healthcare mission, this Article shows that these arrangements are also anticompetitive. By requiring a secular firm to artificially suppress output, these agreements lead both to deadweight loss (in the form of a denial of care) and higher prices. And because there is no procompetitive justification for such market harms, these agreements violate Section 1 of the Sherman Act.

There is not, and there should not be, a religious exemption to the Sherman Act. Although religious liberty is a fundamental component of our democratic system, this Article argues that there must nonetheless be market limits to free exercise. Religious firms may enjoy a right to unilaterally refuse to provide certain goods or services on the basis of religious devotion, but they should not be permitted to enter into anticompetitive agreements that limit other market actors' ability to fully compete in the market. Similarly, secular businesses should not be permitted to justify otherwise anticompetitive agreements on the basis of other firms’ religious beliefs.

Recommended Citation

Bailey Sanders, Religious Riders and the Sherman Act, 124 Mich. L. Rev. 717 (2026).
Available at: https://repository.law.umich.edu/mlr/vol124/iss5/2