BELIEVERS BEWARE: THE FIRST AMENDMENT PROTECTS YOUR RELIGION FROM YOU BUT NOT YOU FROM YOUR RELIGION
You Gotta Love It Baby, Watercolor, 42.5" x 51", 2000, Richard J Van Wagoner, Courtesy of Van Wagoner Family Trust**
The Last Part is Up to You
People of faith in organized religion often believe their stead with god is conditioned on obedience to the teachings, admonitions and entreaties of god’s written word and the instruction of people who claim they are god’s chosen intermediaries. Faithful followers may suspend independent judgment, common sense and a healthy skepticism, hoping for or expecting god’s approval, anticipating rapturous spiritual experience or making themselves vulnerable in the extreme and susceptible of clergy and "spiritual" abuse. [We can debate the degree to which children “choose” religion and activity and at what point the pathology of the occult overcomes free will.]
Believers beware. “[I]t is well settled that civil tort claims against clerics that require the courts to review and interpret church law, policies, or practices in the determination of the claims are barred by the First Amendment under the entanglement doctrine.” Churches must “have power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.” Franco v. The Church of Jesus Christ of Latter-day Saints, citing United States Supreme Court precedent.
In 2007, Ria Williams and her family attended a Congregation of Jehovah’s Witnesses. That summer, while Williams was a minor, she met another congregant. I refer to him as “John.” According to her lawsuit against the church, she and John “began seeing each other socially, but the relationship quickly changed and throughout the rest of the year [John] physically and sexually assaulted Williams.” She alleged that “[i]n early 2008 [church leaders] began investigating [her] to determine whether she engaged in ‘porneia,’ a serious sin defined by Jehovah’s Witnesses as ‘[u]nclean sexual conduct that is contrary to “normal” behavior.’ Porneia includes ‘sexual conduct between individuals who are not married to each other.’. . . Church [Elders] convened a ‘judicial committee’ to ‘determine if [Williams] had in fact engaged in porneia and if so, if she was sufficiently repentant for doing so.’. . . [T]hree [E]lders presided over the judicial committee. Williams voluntarily attended the judicial committee with her mother and step-father. The Elders questioned Williams for forty-five minutes regarding her sexual conduct with [John].”
According to Williams’s complaint, the Elders then played an audio recording of John raping her. John had recorded the incident and gave it to the Elders during their investigation of Williams. According to Williams, “[t]he recording was ‘several hours’ in length. Williams cried and protested as the Elders replayed the recording. The Elders played the recording for ‘four to five hours’ stopping and starting it to ask Williams whether she consented to the sexual acts. During the meeting Williams was ‘crying and physically quivering.’ Williams conceded she was able to leave but risked being disfellowshipped if she did.”
This last sentence is, in my view, the most important in the court’s entire analysis. How does one deconstruct Williams’ “ability” to leave in the context of one's firmly and sincerely held religious beliefs?
Williams sued the Church alleging negligence, negligent supervision, failure to warn, and intentional infliction of emotional distress. She “continues to experience distress as a result of her meeting with the Elders. Her symptoms include ‘embarrassment, loss of self-esteem, disgrace, humiliation, loss of enjoyment of life,’ and spiritual suffering.”
On April 3, 2019, god, who reveals his eternal truths through his modern-day prophet, seer and revelator—the president of the Church of Jesus Christ of Latter-day Saints (“LDS Church”), fka the Mormon Church—vacated and reversed his position from three and a half years ago. That November 15, 2015 pronouncement declared same-sex married couples “apostates” of the LDS Church and barred their children from what the LDS Church teaches are “blessings of the priesthood,” including baptism, a perquisite to entry into god’s highest glory. God must not have foreseen the widespread outrage and fallout his 2015 revelation would have, including protests, mass resignations of church memberships (even by non-“apostates”), increased tension and turmoil between and among family and church members, depression and suicides. I am genuinely delighted for those who have chosen to be and remain invested in what I consider to be the whims of bigoted, backward thinkers. I eagerly anticipate what god’s eternal truth will be on LGBTQ issues when he calls home the current prophet, seer and revelator and a new one takes over.
'Trauma is a slow burn': Mormons seek healing as church eases anti-LGBT policy https://www.theguardian.com/world/2019/apr/06/trauma-is-a-slow-burn-mormons-seek-healing-as-church-eases-anti-lgbt-policy?CMP=ShareiOSAppOther
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . .
The First Amendment Establishment Clause prohibits the government from making any law “respecting an establishment of religion.” The government is forbidden from establishing an official religion. The Clause also prohibits government actions that unduly favor one religion over another, and forbids the government from unduly preferring religion over non-religion, or non-religion over religion. Simultaneously and sometimes coming into conflict with the Establishment Clause, the Free Exercise Clause prohibits the government from unduly interfering with the exercise of religion.
Cases addressing laws and other government conduct that implicate religion are among the most nuanced, contentious and momentous in our jurisprudence. The Supreme Court usually develops and applies balancing tests to evaluate the weight and constitutional impact of government action on competing interests, including those of the government. The Supreme Court sometimes reaches decisions on these compelling issues with very little agreement among the justices on the correct analysis and how the court got to its conclusion. Establishment and Free Exercise Clause cases have involved, to name a few,
• parishioners’ civil tort claims for clergy malpractice
• religious holiday displays and symbols in public places and on government property
• religious monuments on public land or in government facilities
• prayer and religious study in public school
• prayer at the beginning of legislative sessions
• public funding that benefits private religious schools
• government use of religious symbols and expressions
• clergy in the military
• denying unemployment benefits to a person fired for violating a state prohibition against use of peyote—even though such use was part of a religious ritual
• the contraceptive mandate under the Patient Protection and Affordable Care Act in the face of for-profit corporations’ claimed right to religious freedom
• whether Colorado showed religious hostility in an anti-discrimination case involving a baker who refused on religious grounds to make a wedding cake for a same-sex couple
• whether religious exemptions should be carved out of otherwise generally applicable laws. For example, a few states exempted the use of peyote in religious ceremonies from laws outlawing its use.
The trial court threw out Ria Williams’ case against the Jehovah’s Witness Elders. The Utah Court of Appeals affirmed that dismissal. The following Court of Appeals’ reasoning is, in my view, correct under a First Amendment analysis. Importantly, an overtone is that the Free Exercise Clause means the government will not interfere, for the most part, with one’s right and ability to engage in religious practice of one’s choosing, one’s right not to do so, or one’s right to switch religions or abandon religion altogether, particularly when the dogma or practices are anathema to one’s sense of decency, integrity, sense of right and wrong, values or common sense.
“The First Amendment to the United States Constitution provides, ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.’. . . These provisions are known as the Establishment Clause and the Free Exercise Clause . . . .
“In Franco, the Utah Supreme Court applied [the] test to determine ‘whether government activity constitutes a law respecting an establishment of religion’ under the Establishment Clause. This test requires the government action ‘(1) must have a secular legislative purpose, (2) must neither advance nor inhibit religion, and (3) must not foster an excessive government entanglement with religion.’
“Courts focus on the third prong of the test, ‘excessive government entanglement,’ when looking to determine clergy liability for tortious conduct. Entanglement ‘is, by necessity, one of degree’ because not all government contact with religion is forbidden. ‘[T]he entanglement doctrine does not bar tort claims against clergy for misconduct not within the purview of the First Amendment, because the claims are unrelated to the religious efforts of a cleric.’ [Molesting children, for example, is misconduct that does not fall within the purview of the First Amendment, and even if a religion claimed such conduct fell within its doctrine and adherents’ sincerely held religious beliefs (which, frankly, wouldn't be much of a surprise), no government would carve out an exception from the generally applicable law to accommodate such conduct.] But tort claims ‘that require the courts to review and interpret church law, policies, or practices in the determination of the claims are barred’ by the entanglement doctrine.
“Some tort claims do not run afoul of the Establishment Clause because they do not require any inquiry into church practices or beliefs. For example, ‘slip and fall’ tort claims against churches have been upheld because the tortious conduct was ‘unrelated to the religious efforts of a cleric.’
“But the . . . Supreme Court has rejected tort claims against church entities for ‘clergy malpractice’ as well as other negligence-based torts that implicate policies or beliefs of a religion. ‘[I]t is well settled that civil tort claims against clerics that require the courts to review and interpret church law, policies, or practices in the determination of the claims are barred by the First Amendment under the entanglement doctrine.’ It is important that churches ‘have power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.’
“Allowing Williams’s claims in this case to be litigated would require the district court to unconstitutionally inject itself into substantive ecclesiastical matters. . . . Williams asks the factfinder to assess the manner in which the Church conducted a religious judicial committee, which requires it to assess religiously prescribed conduct. . . . Adjudicating Williams’s claims would involve excessive government entanglement with the Church’s ‘religious operations, the interpretation of its teachings’ and ‘the governance of its affairs.’. . . This subjects the Church to ‘judicial oversight in violation of the Establishment Clause of the United States Constitution.’
“. . . The issue is whether the tort law being applied is used to evaluate religious activity in violation of the Establishment Clause. In this case, Williams asks the factfinder to interpret the ‘outrageousness’ of the Church’s conduct in investigating her alleged sins. . . . Because Williams’s . . . claim asks the factfinder to assess the ‘outrageousness’ of a religious practice, this violates the Establishment Clause. . . .”
In a sense, the Free Exercise Clause does protect you from your religion. But in order to make that choice one must not abandon or delegate to the religion or its clerics one’s common sense, core values, decency, and resonance for what is right and wrong.
*My brother the very talented fiction writer and novelist, Robert Hodgson Van Wagoner, deserves considerable credit for offering both substantive and technical suggestions to https://medium.com/@richardvanwagoner and https://lastamendment.com
**My daughter Angela Moore, a professional photographer, photographed more than 500 pieces of my father's work. On behalf of the Van Wagoner Family Trust, she is in the process of compiling a collection of his art work. The photographs of my father's art reproduced in https://medium.com/@richardvanwagoner and https://lastamendment.com are hers