Religion and American Law: An Encyclopedia

[David McCarthy]

Excerpts from....

Religion and American Law: An Encyclopedia
CULTS and THE LAW.

Whether modern cults are, as they often claim, oppressed "new religious movements' or simply effective means by which charismatic leaders accrue power and wealth, there is no doubt that they have met vigorous resistance when they attempted to claim for them?selves the same rights as more traditional religions. The Holy Spirit Association for the Unification of World Christianity (the Unification Church), led by Rev. Sun Myung Moon, offers a case in point. This organization has fought in court over such issues as whether facets of its aggressive political and economic agendas are bona fide religious practices and whether its foreign members can legitimately seek permanent residence in the United States in order to continue their prose?lytizing. Victimized by an allegedly discriminatory Minnesota statute that subjected only religious groups such as theirs to certain re?porting requirements that received more than 50 percent of their contributions from non-members, the "Moonies" had to go to the Supreme Court to get that law struck down as a violation of the Establish mem Clause in Larson u Valente (1981).

The legal problems and approach to litigation of the Unification Church are not necessarily representative. Generalizing about cults and the law is extremely difficult, in large part because "cult? is not a legal concept. Indeed, it is not even a word with a clear definition. The term has often been employed pejoratively by members of mainstream religions to stigmatize new groups or ones that merely hold views strikingly different from their own. Thus one treatise on cult law devotes much of its attention to Christian Science. Sociologists have tried to achieve greater precision by identifying common features of groups that give rise to similar social problems, but their efforts have yielded a plethora of definitions, none of them particularly helpful to lawyers and judges. For those whose concern is the law, the term "cult" is most usefully applied to organizations that exhibit certain distinctive and problematic qualities giving rise to legal questions not normally associated with mainstream religious groups. These include (1) the swearing of total allegiance to an all-powerful leader; (2) the leadership's discouraging or forbidding of rational thought; {3) the use of deceptive recruitment techniques; and (4) the tendency of the group to discourage independence and to adherents into submission, thus producing a state of total dependence on the organization. There is, however, no legal definition of the word "cult."

Nor does the law distinguish between cults and legitimate religious groups. Indeed, any attempt to do so would violate the First Amendment. In United States n Ballard (1944) the Supreme Court took the position that the First Amendments religious clauses forbid government from inquiring into the truth or falsity of religious beliefs. At most a court may seek to determine whether some?one's views are sincerely held?and then prob?ably only if that individual is seeking some benefit from the government, such as a tax exemption of classification as a conscientious objector. Whether or not a cuh's creed is acceptable, logical, consistent, or even comprehensible, it enjoys the protection of the Free Exercise Clause. Indeed, government may not even distinguish between groups that believe in a supreme being and those that do not. As long as an organization's dogma occupies in the life of its adherents a place parallel to that filled by God in more conventional religions? the Supreme Court has intimated?its members' beliefs and practices are protected by the First Amendment.

Because that amendment prohibits the federal government from distinguishing be?tween legitimate and illegitimate religions, the Internal Revenue Service (IRS) has little choice but to grant even unpopular cults lacking any commitment to traditional spiritual values the benefit of the income tax exemption Congress has conferred on religious groups. Under at least one provision of the Internal Revenue Code, "any organization claiming to be a church" is a church. The IRS has identified fourteen criteria to help determine whether an organization qualifies as a church, one of them being whether it has a "distinct religious history." The courts, however, have applied these guidelines only haphazardly, and the IRS, bound by the code itself, has avoided evaluating die legitimacy of organizations claiming to be religious in nature.

Instead the IRS has concentrated on determining whether groups that seek tax-exempt status satisfy the criteria set forth in section 501(c)(3) of the Internal Revenue Code. That provision requires (1) that an organization operate exclusively for religious purposes, (2) that no part of its revenue inure to the benefit of any private individual, (3) that no substantial portion of its activities involve the use of propaganda or attempts to influence legislation, and (4) that it not participate in any political campaign. In addi?tion, courts have imposed a requirement that a group claiming to be an exempt religious organization serve a valid public purpose and confer a public benefit. The IRS revoked the tax-exempt status of the Church by Mail and the Church of Scientology because they failed to comply with the requirements of section 501(c)(3); in 1993, however, it later restored the Scientologists' status. In addi?tion, under legislation enacted by Congress in 1976, religious groups that engage in com?mercial enterprises, such as manufacturing, must pay taxes on their "unrelated business income."
Cults and Laws of General Applicability Cults enjoy even less immunity from criminal statutes than from the tax laws. The Free Exercise Cause forbids punishing anyone for religious beliefs. The Supreme Court has held, however, that the clause does not relieve a person of the obligation to comply with valid and neutral laws of general applicability that regulate or prohibit conduct in which the reli?gion requires the person to engage or that com?mands the person to do something which the religion forbids. Thus, in Employment Division, Department of Human Resources v. Smith (1990), the Supreme Court affirmed the t of a state to enforce its drug laws against members of a Native American church who used peyote in religious ceremonies. It adopted a position already staked out by lower courts. In United States v. Kuch (D.C., 1968), for ex?ample, the U.S. District Court for the District of Columbia had held that it was not a violation of die Free Exercise Clause to punish a self-styled "ordained minister of the Neo-American Church" for possessing and distributing LSD and marijuana?even though members of that "church" professed to consider psychedelic substances the "true Host" and to believe that it was "the Religious duty of all members" to ingest the substances regularly under the guidance of a religious leader called a "Boo Hoo." In Randall u Wynck (Mo? 1977) a federal district court in Missouri upheld the drug-possession conviction of the leader of the Aquarian Brotherhood Church, despite his insistence that the use of hashish, marijuana, and cocaine was considered sacrament by that religion.
The court took the position that freedom of belief was entirely protected but that freedom of religious action* was limited by the state's interest in protecting the public from the dangers posed by drugs. Although government can punish drug use and other dangerous conduct that some claim is required by their religion, prohibiting conduct because it is religious does?at least in the absence of a compelling governmental interest? violate the Free Exercise Clause. For that reason, in Church of Lukumi Babalu Aye, Int. and Ernesto PicharJo v. City ofHialeah (1993) the Supreme Court struck down municipal ordinances banning the ritual sacrifice of animals practiced by followers of the Santeria faith. As long as government does not engage in this sort of targeting of religion and only legislates in general terms, however, it may constitutionally punish religiously motivated behavior, whether this be the snake handling practiced by some southern sects, such as the Holiness Church, or the polygamy once expected of Mormons.

Curt* and First Amendment Protections Although the First Amendment does not shield criminal conduct, it does protect the distribution of literature by cultists and probably their efforts to recruit and indoctrinate new members. In Lovell v. Griffin (1938) the Supreme Court held that a city had violated the amendment's guarantees of freedom of expression by requiring a Jehovah's Witness who wanted to hand out religious material to obtain permis?sion from an official, who had complete discretion about whether to grant or withhold the required authorization. In Murdock r. Pennsylvania (1943) the Court held unconstitutional the punishment of Jehovah's Witnesses for selling religious books without first paying a municipal license tax. Prince u. Massachusetts (1944) sanctions the application of child labor laws to prevent minors from hawking religious literature, and Heffron v. International Society for Krishna Consciousness (1981) holds that government may impose reasonable time, plate, and manner restrictions on literature distribution and the solicitation of funds by reli?gious groups when these activities take place in areas that have been opened up for the ex?change of ideas, such as state fair grounds. Such restrictions may not, however, discrimi?nate against some views and in favor of others. In another Hare Krishna case, the Court declared that it was permissible to forbid the repetitive solicitation of money within airport terminals. Lee v. International Society for Krishna Consciousness, Inc. (1992) also held, however, that the Constitution protects both the collection of money on public sidewalks outside airport terminals and the distribution of literature within them. In Larson u Vatente (1981) the Supreme Court took the position that a state law which imposed registration and reporting requirements on some religious groups that solicited money from non members but not on others violated the Establishment Clause.

It is doubtful that the justices would tolerate much interference with cults' recruiting and indoctrination. Beginning with Cantweli i* Connecticut {1940) the Court invalidated a number of statutes that obstructed the dissemination of religious views on the ground that these laws interfered with freedom of expression. Groups commonly identified as cults often go beyond merely preaching their message to potential converts, however; they often engage in an extreme form of indoctrination which critics view as thought manipulation and compare to the "brainwashing" that the Chinese practiced on American prisoners during the Korean War. Unlike the evangelism of conventional churches, con?tends law professor Richard Delgado, cult recruiting is deceptive; potential members never give informed consent to affiliation with the organization, because they are not provided with complete information about the group until their will is no longer free. The deception to which cults resort justifies government intervention to protect the targets of their recruiting efforts, Delgado maintains. Such intervention would not violate the Free Exercise Clause, he insists, because that constitutional provision was designed to protect self-determination in religious matters and because the use of deception and coercion 10
Impart belief of the antithesis of self-determination. Although Delgado is the lead?ing legal expert on cults?and many people find his argument persuasive?there is little case authority to support his position.

Cults and Other legal Questions There is a similar shortage of judicial opinions about other legal questions enkindled by cult practices, and especially about issues related to deprogramming. Parents, convinced that their children have been "brainwashed' into joining deviant religious groups, have increasingly resorted to legal and extralegal means to wrest their offspring from the control of such organizations so that they can be "deprogrammed." Generally carried out by professional deprogrammers (or "exit counselors''), the goal of that process is to restore freedom of thought; once this has been accomplished, it is assumed, the youthful recruit will no longer wish to be affiliated with a cult.
Because deprogramming is practiced on a person who is at least initially an unwilling participant, the first step is to obtain physical control of the subject. The legal way to accomplish this is by securing a conservatorship order from a court. In some states a relative may be able to obtain one of these during an ex pane proceeding in which the cult member does not even participate. If the deprogramming works, by the time a full hearing is held both parties are in complete agreement, and there is nothing to litigate. This procedure smacks of judicially sanctioned kidnapping, and both a state court of appeals in Katz it Superior Court (Calif.. 1977) and a federal court of appeals in Taylor v. Gilmartm (10th Cir. 1982) have ruled against the use of state conservatorship laws for deprogramming purposes. But those are narrow decisions which focus on the language of the particular statutes in question and fail to address the fundamental issues posed by this approach to deprogramming.

Rather than seeking conservatorship, some parents resort to extralegal methods. The cult member ? coaxed, tricked, or physically coerced into leaving the group and going with a deprogrammer to an isolated location where he or she is confined while deprogramming is carried out. Those who resort to this method often commit bodi rhe crime of kid-napping and the tort of false imprisonment. Yet prosecutors have proved reluctant to file charges in such caws, and when they do, pub?lic sympathy for the parent* has frequently made it impossible to persuade grand juries to indict or trial juries to convict. Tort suits are also rare. If the deprogramming works, the former cult member does not want to litigate. Unsuccessfully deprogrammed cult members have sued for both false imprisonment and the intentional infliction of emotional distress, but ludges sympathetic to parents and deprogrammers have often dismissed such actions. Even when successful, suits of this type have yielded only modest damage awards. Victims of deprogramming have also sued under two federal civil rights statutes, 42 U.S.C., sections 1983 and 1985(3). There are. however, serious doubts about whether either of these laws can constitutionally be applied to deprogramming, and such actions have also proved unsuccessful.

Former members have enjoyed greater success when suing the cult to which they once belonged. Some of these cases have resulted in the award of substantial damages. Yet the degree to which cult "brainwashing" is actionable is a question the courts have not fully resolved. Generally, where indoctrination is preceded by deceit regarding the nature of the organization or by other fraud, the victim may sue in tort because of the lack of in?formed consent. On the other hand, in Weiss v. Patrick (D.R.I. 1978) and Ward v. Conner (4th Or. 1981) federal courts look the position that if someone's association with a cult is knowing and voluntary at the outset, the group will not be liable for damages because of the means it subsequently employs to pro?cure the person's loyalty.
Besides having to establish that one has a legal claim, a former member who sues a cult faces serious constitutional obstacles. If the complaint is based on the defendants protected religious activity, ir will fail. In Paul v. Watchtower Bible and Tract Society (9th Cir. 1987), for example, a woman sued for defamation, fraud, and outrageous conduct after being subjected to "shunning" (a procedure under which loyal Jehovah's Witnesses are instructed to ignore former members of that organization). The federal court which decided the case held that shunning is protected by the First Amendment and that requiring the church to pay damages would "restrict the Jehovah's Witnesses' free exercise of religion." On the other hand, a cult cannot avoid liability merely by claiming that its activity is reli?gious in nature, and thus some courts have up?held damages based on harassment of former members.

Suits involving cults often raise difficult legal issues. So do governmental actions designed to control its conduct. Some of the activities of deviant religious groups?such as the stockpiling of military weapons by the Church Universal and Triumphant and the Branch Davidians?are extremely dangerous. Other cult behavior?such as the aggressive panhandling in which Hare Krishnas engage? is merely annoying to persons who do not share their views. The proselytizing of Jehovah's Witnesses is as clearly protected by the First Amendment as is that of Baptists, but the recruiting and indoctrination techniques utilized by some cults raise legitimate concerns that those of mainstream religious groups do not. On the other hand, so does de?programming, which, however nobly motivated, is often accomplished through methods that are illegal. This is an area of the law where even a definition of the most basic concept is elusive and where there are few easy-answers and many hard questions.

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[joe sz]

Nor does the law distinguish between cults and legitimate religious groups. Indeed, any attempt to do so would violate the First Amendment. In United States n Ballard (1944) the Supreme Court took the position that the First Amendments religious clauses forbid government from inquiring into the truth or falsity of religious beliefs.

The passage above refers to Judge Jackson's and others ruling in US vs Ballard. The case involved the I AM Activity founded by Guy and Edna Ballard in 1934. The I AM leaders went on trial for 18 or 19 counts of fraud in federal court in California in 1940. It took 4 years to resolve the case. In the end, the the I AM were forbidden to send their cult teachings through the US mail until 1954. The final conviction was "vacated" by the Supreme Court on appeal due to a jury selection flaw---women were not included on the jury.
http://en.wikipedia.org/wiki/United_States_v._Ballard

If you are interested in the legal history of how "cults" are handled in the US, this ruling is still a landmark case for all law students.

Joe