There was a fascinating 6-3 decision on the subject late last week from the Texas Supreme Court, in Pleasant Glade Assembly of God v. Schubert. (Here's the lead dissent, another dissent, and one more.) Unfortunately, to do it justice, I have to quote it at some length, but I hope you bear with me:
On Friday evening, before her parents left town, Laura [Schubert, a 17-year-old congregant,] attended a youth group activity at Pleasant Glade in preparation for a garage sale the next day. The atmosphere during this event became spiritually charged after one of the youth announced he had seen a demon near the sanctuary. The youth minister, Rod Linzay, thereupon called the group together to hear the story, and after hearing it, agreed that demons were indeed present. Linzay instructed the youth to anoint everything in the church with holy oil and led a spirited effort throughout the night to cast out the demons. Finally, on Saturday morning at about 4:30 a.m., Linzay gathered the exhausted youth together to announce that he had seen a cloud of the presence of God fill the church and that God had revealed a vision to him. Although exhausted, the young people assisted with the garage sale later that morning.
At the Sunday morning worship service the next day, several young people gave testimonials about the spiritual events of the preceding day. At the conclusion of the service, the youth, including Laura and her brother, prayed at the altar. During these prayers, Laura’s brother became “slain in the spirit,” collapsing to the floor where church members continued to pray into the early afternoon.
Later that afternoon, Laura returned to church for another youth activity and the Sunday evening worship service. During the evening service, Laura collapsed. After her collapse, several church members took Laura to a classroom where they “laid hands” on her and prayed. According to Laura, church members forcibly held her arms crossed over her chest, despite her demands to be freed. According to those present, Laura clenched her fists, gritted her teeth, foamed at the mouth, made guttural noises, cried, yelled, kicked, sweated, and hallucinated. The parties sharply dispute whether these actions were the cause or the result of her physical restraint.
Church members, moreover, disagreed about whether Laura’s actions were a ploy for attention or the result of spiritual activity. Laura stated during the episode that Satan or demons were trying to get her. After the episode, Laura also allegedly began telling other church members about a “vision.” Yet, her collapse and subsequent reaction to being restrained may also have been the result of fatigue and hypoglycemia. Laura had not eaten anything substantive that day and had missed sleep because of the spiritual activities that weekend. Whatever the cause, Laura was eventually released after she calmed down and complied with requests to say the name “Jesus.”
On Monday and Tuesday, Laura continued to participate in church-related activities without any problems, raising money for Vacation Bible School and preparing for youth drama productions. Her parents returned from their trip on Tuesday afternoon.
On Wednesday evening, Laura attended the weekly youth service presided by Rod Linzay. According to Linzay, Laura began to act in a manner similar to the Sunday evening episode. Laura testified that she curled up into a fetal position because she wanted to be left alone. Church members, however, took her unusual posture as a sign of distress. At some point, Laura collapsed and writhed on the floor. Again, there is conflicting evidence about whether Laura’s actions were the cause or result of being physically restrained by church members and about the duration and force of the restraint. According to Laura, the youth, under the direction of Linzay and his wife, Holly, held her down. Laura testified, moreover, that she was held in a “spread eagle” position with several youth members holding down her arms and legs. The church’s senior pastor, Lloyd McCutchen, was summoned to the youth hall where he played a tape of pacifying music, placed his hand on Laura’s forehead, and prayed. During the incident, Laura suffered carpet burns, a scrape on her back, and bruises on her wrists and shoulders. Laura’s parents were subsequently called to the church. After collecting their daughter, the Schuberts took her out for a meal and then home. Laura did not mention her scrapes and bruises to her parents that night.
Eventually, Schubert sued for (among other things) false imprisonment and assault, claiming that she was involuntarily restrained, and that this caused a wide range of emotional distress damages: "angry outbursts, weight loss, sleeplessness, nightmares, hallucinations, self-mutilation, fear of abandonment, and agoraphobia. Despite the psychiatric counseling, Laura became increasingly depressed and suicidal, eventually dropping out of her senior year of high school and abandoning her former plan to attend Bible College and pursue missionary work. Finally, in November 1996, Laura was diagnosed as suffering from post-traumatic stress disorder, which the doctors associated with her physical restraint at the church in June 1996. One of the expert witnesses at trial testified that Laura would 'require extensive time to recover trust in authorities, spiritual leaders, and her life-long religious faith.' Ultimately, Laura was classified as disabled by the Social Security Administration and began drawing a monthly disability check."
The jury found that Schubert was indeed falsely imprisoned and assaulted -- i.e., that she didn't consent to the exorcism -- and awarded Schubert $300,000. But now the Texas Supreme Court has reversed, on the grounds that emotional distress liability (as opposed to liability for physical injuries as such, which were apparently very slight, and for which Schubert apparently didn't claim any damages) was constitutionally impermissible in this particular case:
[Schubert's] case at trial was not significantly different from what she would have presented under her claim of intentional infliction of emotional distress, a claim the court of appeals agreed should be dismissed. We have previously said that adjudication of this type of claim “would necessarily require an inquiry into the truth or falsity of religious beliefs that is forbidden by the Constitution.” This type of intangible, psychological injury, without more, cannot ordinarily serve as a basis for a tort claim against a church or its members for its religious practices.
[The lead] dissent asserts, however, that a court should use an instruction to separate the “damages only for the mental anguish the plaintiff would have suffered had the tort been committed by a secular actor in a secular setting.” However, even Laura’s psychological expert, Dr. Arthur Swen Helge, admitted that he could not separate the damages resulting from Laura’s physical restraint and the psychological trauma resulting from the discussion of demons at the church.... Even if a jury could parse the emotional damages attributable solely to secular activity, which is doubtful, ... we [have] emphasized that even though the elements of a common law tort may be defined by secular principles without regard to religion, it does not necessarily follow that application of those principles to impose civil tort liability would not run afoul of protections the constitution affords to a church’s right to construe and administer church doctrine. In this case, although Laura’s secular injury claims might theoretically be tried without mentioning religion, the imposition of tort liability for engaging in religious activity to which the church members adhere would have an unconstitutional “chilling effect” by compelling the church to abandon core principles of its religious beliefs. According to Pentecostal religious doctrine, whenever a person is believed to be under “spiritual influence,” the church “lays hands” on the person and anoints oil to combat “evil forces.” ...
[A dissent maintains] that we “can and should decide cases like this according to neutral principles of tort law ... [i]f a plaintiff’s case can be made without relying on religious doctrine.” But ... Laura’s claims also involve church beliefs on demonic possession and how discussions about demons at the church affected Laura emotionally and psychologically.... The Schuberts alleged that [the physical] restraint caused Laura’s emotional injuries. However, because the religious practice of “laying hands” and church beliefs about demons are so closely intertwined with Laura’s tort claim, assessing emotional damages against Pleasant Glade for engaging in these religious practices would unconstitutionally burden the church’s right to free exercise and embroil this Court in an assessment of the propriety of those religious beliefs....
We do not mean to imply that “under the cloak of religion, persons may, with impunity,” commit intentional torts upon their religious adherents.... But religious practices that might offend the rights or sensibilities of a non-believer outside the church are entitled to greater latitude when applied to an adherent within the church. Particularly, when the adherent’s claim, as here, involves only intangible, emotional damages allegedly caused by a sincerely held religious belief, courts must carefully scrutinize the circumstances so as not to become entangled in a religious dispute. And while we can imagine circumstances under which an adherent might have a claim for compensable emotional damages as a consequence of religiously motivated conduct, this is not such a case.
The “laying of hands” and the presence of demons are part of the church’s belief system and accepted as such by its adherents. These practices are not normally dangerous or unusual and apparently arise in the church with some regularity. They are thus to be expected and are accepted by those in the church. That a particular member may find the practice emotionally disturbing and non-consensual when applied to her does not transform the dispute into a secular matter. “Courts are not arbiters of religious interpretation,” and the First Amendment does not cease to apply when parishioners disagree over church doctrine or practices because “it is not within the judicial function and judicial competence to inquire whether the petitioner or his fellow worker more correctly perceived the commands of their common faith.” Because determining the circumstances of Laura’s emotional injuries would, by its very nature, draw the Court into forbidden religious terrain, we conclude that Laura has failed to state a cognizable, secular claim in this case.
Here's my thinking on the matter: Though I appreciate the majority's concerns in this case, the primary dissent seems to have the better view.
The plaintiff alleges -- and the jury apparently believed her -- that she was held down against her will. That's false imprisonment and assault. She also alleges that this physical restraint led to emotional distress damages. This is not a case such as many of the ones the majority cites, in which the emotional distress stemmed from religious speech, or shunning by the community, or other such conduct that is and should be substantively constitutionally protected. Rather, the case involves nonconsensual (or so the jury found) physical touching, conduct that no constitutional guarantee protects.
This leaves, of course, the question of what damages should be allowed. The primary dissent acknowledges that a plaintiff shouldn't be able to recover from damages that stem from the religious character of the experience. That's right, I think -- for instance, her fear of demons or disenchantment with the church or religion generally can't form the basis of liability without having the jury decide quintessentially theological questions.
But the dissent reasonably argues, I think, that the solution is to "extract[] the religious from the secular," not just dismiss the claim outright; and it argues that such extraction was possible in this case:
[W]hile the Court points to Dr. Helge’s testimony as proof that Schubert’s religious and secular damages are inextricably intertwined, another expert, Dr. Millie Astin, specifically stated that she could separate the two. And Schubert testified that while she was being restrained she was afraid she "was being injured" and that she "might die" -- trauma clearly associated with the act of restraint itself. Although segregating the religious from the secular may sometimes be difficult, it can and should be done.
The dissent's suggestion that "A jury could ... be instructed to award damages only for the mental anguish the plaintiff would have suffered had the tort been committed by a secular actor in a secular setting" strikes me as not exactly right, for some of the reasons mentioned in this post. But instructing a jury that it could award damages only for the mental anguish that stemmed from the restraint as such, as opposed to the religious character of the restraint, sounds like it would work fairly well (recognizing that damages calculations are never an exact science). The church could then stress that the secular actors here were the plaintiff's friends, who the plaintiff must have realized were trying to help her (even if misguidedly). The plaintiff could stress that despite this there was a good deal of pain, that the plaintiff feared that her leg was breaking, and that in any event unwanted restraint -- even by friends -- is a frightening experience that can cause long-term psychological problems. And a jury could, I think, focus on that and set aside other aspects of the damages, such as plaintiff's needing "extensive time to recover trust in ... spiritual leaders, and her life-long religious faith."
Of course, there would be the risk of jury error, and of jurors' awarding damages based on supposed spiritual harms. But there is such risk in any situations involving religious institutions or religious leaders as defendants, for instance simple sexual abuse cases or fraud cases. It seems to me that the risk of such error shouldn't justify denying normally available secular psychological distress damages to someone who was harmed by nonconsensual false imprisonment and battery.
Texas may not be required to recognize assault / battery or IIED as torts. But if the state does, there is a strong argument that if it carves out an exemption for any emotional distress or unconsented physical touching that results from religious activity, it is favoring religion over nonreligion.
Beyond the legal issues, though, on a policy level, this is an outrage. If ocnsenting adults want to lock themselves in a padded room and have hallucinatory "exorcisms", that's their right. But brutally battering a minor is child abuse, not legitimate religious practice. They should all be in jail.
A sentence like this could only be: (a) true; or (b) written by Evelyn Waugh.
This is why exorcisms really should be left to the Roman Catholics.
I mean, would the movie ("The Exorcist") have been as suspenseful if the family had called in, say, a couple Methodist ministers?
On the legal matter, IANAL: My cousin is married to a Christian Science practitioner, and I know that the State of Michigan has been able to compel certain medical treatments for their underage children. And their adult daughter who is attending a public university is required to have medical insurance and so forth. It seems that this is far more "intrusive" upon one's freedom of religious practice than a court telling members of a different faith that they are not allowed to forcibly detain people they consider possessed.
And this even IF there is an imminent garage sale!~
So what the hell does this mean? You can physically touch anyone you want in anyway you want, regardless of consent, as long as you claim it was part of your beliefs? Or is it just inside of the church itself? Or do I have to be a member of the church to be legally assaulted?
This seems ridiculous to me. There should be no religious exception to the idea that you don't pin down anyone who is telling you to leave them alone.
I'm sorry, but this seems ridiculous. If someone tells you "stop touching me" then you do it or its assault - end of farking story.
I agree with the Texas Supreme Court. People in this country have a right to believe in whatever cockamamey religion they wish to believe in. So long as there was no physical harm, then it's not right to complain of emotional harm when the point of the church was to inflict emotional harm to "demons" inhabiting the individual.
This was a 17 year old. Even if we assume she consented (and it appears to me that she did not consent and explicitly withdrew any implied consent), is her consent even valid?
I agree 100%.
When you are a member of a church, you consent to their beliefs, and you can't whine and cry about it later, even for money damages.
The court didn't say that they were immune from damages. They said that they were not immune from physical damages. This means the Aztec can't rip people's hearts out. And if this family had claimed physical damages (rug burns, etc.) the church would be liable. In this case, they claimed only emotional damages and the court reasonably concluded that it is impossible to separate the religious effect (hah) from the secular effect.
Your point is rational and imminently reasonable, but the point is that we're dealing with the irrational. Our nation protects people who choose to believe in the irrational, and this ruling affirms that protection.
Thus, I can say from experience: these people drink way too much kool-aid. At college, exorcisms were a weekly event. In my church they were less common, but you could still count on a really good exorcism 2 or 3 times a year.
That does not include the routime casting out of demons that is almost continually occurring. (from such things as television sets, furniture, automobiles, video games, etc)
The question I have is this: Does anyone think the Texas Supremes would have made the same decision if the only difference was that it was a fringe Muslim group instead of a fringe Christian group?
The "Religion Clause" has two parts, establishment and free exercise. I think you're overlooking the latter.
How would the Court have ruled if this was a group of atheist, hard determinists, not carrying out an exorcism, per se, but perhaps a drug intervention. In doing so, they pin the girl down and freak her out, but they sincerely believed their actions were valid, because how else could they have acted in a certain case. Do they lose because they were acting on the lack of any belief.
What if the atheists instead go to court and claim that they are Pastafarian worshipers of the FSM, and the intervention was revealed to them in a plate of lasagna?
Lets be fair here. You take your child-rapes with the Catholics, rapes and honor-killings with the Muslims, exorcisms with your Catholics and fringe Protestants, incest with your Mormons, and child-neglect deaths with your Christian Scientists and similar faith-healer groups.
Not so fast for the Jews. We can blame them for making genital mutilation popular. The Muslims managed to make the barbaric practice even worse, with respect to their women.
The group of atheists would have to demonstrate that their beliefs were genuine and freely adhered to. That would be hard to do since you describe them as being atheists. The government does not, so far as I know, allow sham beliefs to claim the protection of the first amendment. They would then have to show that a drug intervention is a religious act.
After all, some of us insist that even baptism be voluntary. :-)
The church members have religious beliefs that the jury may consider weird or bizarre. Since there was no physical damage, the church is being punished for its religious beliefs.
Should be bar studying: You aren't claiming that child sexual molestation is part of Catholic doctrine, are you?
If the decision is based on the "healer's" belief and religious practice, then is the "victim's" belief relevant?
No, they were being punished (before the Texas Supreme Court's outrageous decision) for inflicting severe foreseeable emotional torment on a teenage girl as a result of a brutal assault.
By the way, you can't draw this sort of a hard distinction between physical and emotional harm. One of the classically foreseeable results of a brutal assault is emotional harm, and the tort system has rightly allowed damages on this basis for centuries.
A likely and foreseeable result of their doctrine.
The Muslim countries in which you do find it all have strong African immigrant and cultural ties, e.g. Egypt, via Sudan; Yemen via Somalia. In most countries with Muslim majorities, not only is the practice shunned, it is illegal. Suggest that a Turkish or Indonesian Muslim--hell, even a Saudi from other than the Yemeni border areas--mutilate his daughter and see how far it goes....
I don't see any reason why individuals who cause real, demonstrable harm, should be immunized from non-economic damages. If anything treating torts done under the color of religion differently than torts committed for a secular purpose strikes me as the 1st amendment violation.
But surely we wouldn't say, I take it, that a person's or institution's minority religious faith gives them immunity from damages liability, right? And if I am right on this, then why would the institution's minority religious faith give them immunity from emotional distress caused by their allegedly nonconsensual false imprisonment and assault of the plaintiff?
Unless the desire to leave the church is yet another sign of demonic possession which therefore justifies even further intervention and physical restraint.
My contention is that "the free exercise thereof" refers back to "an establishment of religion" (i.e., an official church). So the Clause prevents the federal government from establishing a national church and from interfering with the operation of already-established state churches. Individual religious freedom just isn't in it.
(And seems to me that that logic applies quite well in this case.)
No matter who you are, no matter how pink or green your gods may be, my rules also bind you.
So, yes, she should be able to sue. If there's a religious justification or shelter here, it's a factual issue. Let her describe her treatment, and then let the church and members describe the setting, their beliefs, and the P's actions. And, if her claim against the church then sounds like sour grapes, or if it seems that she caused the situation as much as anyone, she'll lose.
Try and see the church member's point of view. On Sunday, after spending all Friday night battling demons, after her brother , Laura collapses. Thinking she was possessed (which, from their skewed perspective is perfectly reasonable) they take her into another room to help her. They hold her down. She insists that they let go, well, isn't that what a demon WOULD say? They don't, whereupon she begins to shake and FOAM AT THE MOUTH. A rather extreme reaction it seems to me. However, were I a church member, I would simply see the demon fighting back.
Viewed from my personal beliefs, I think these people are deluded. But Laura is (or was at the time) apparently a believer. The church members reacted in a way consistent with those deeply held religious beliefs and as such should be protected by the 2nd Amendment.
Lastly, a social security disability pension? Wow. I just can't express how wrong I think that is. It's been 12 years, you weren't (as far as I can tell) sexually assaulted. Get over it.
Are you going to back that up with anything? Or just state it as fact?
And while we're at it, what doctrine are you talking about?
The right to keep and bear demons?
The child did not withdraw consent. She was POSSESSED. Thus, it was the devil (or a lesser daemon) speaking. Clearly, this entity (tm) had no authority (apparent or otherwise) to revoke consent.
duh...
...sigh...
1st Amendment
The “laying of hands” and the presence of demons are part of the church’s belief system and accepted as such by its adherents. These practices are not normally dangerous or unusual and apparently arise in the church with some regularity. They are thus to be expected and are accepted by those in the church. That a particular member may find the practice emotionally disturbing and non-consensual when applied to her does not transform the dispute into a secular matter.
I suspect it would be different if Satan had been granted legal guardianship by a family court. But IANAL.
Professor, they should not be immune from all damages but without a contemporaneous physical injury, damages for pure emotional distress are just too open for the jury to express its disgust with sincere but unusual religious beliefs.
I don't know the current state of Ohio law but Ohio used to require contemporaneous physical injury before you could get any damages for emotional distress. That seems about right.
Bob from Ohio: There was contemporaneous physical injury (scrapes and the like) -- just not very severe injury. But lots of assaults, false imprisonment, and the like cause emotional damage with little purely physical injury (in the sense of tissue damage). False imprisonment has long been seen as actionable, including because of the emotional injury it causes, even though it may cause zero physical injury.
Many rapes, when accomplished by threat rather than direct force, may cause relatively little tissue damage but a great deal of emotional distress stemming from physical injury. This is even more true for child sexual abuse. Wouldn't your theory mean no emotional distress damages awarded against religious officials who molest children?
By way of analogy, if a person is walking along the street and someone grabs him, sweeps his legs, and then pins him to the ground, then he obviously can sue his attacker for the physical and emotional distress. However, should he be allowed to sue if his opponent did the same thing in a wrestling match? (I have seen sporting events cause a great deal of physical and emotional distress.)
She's 17. There's no consent.
Seriously, it's one thing to say that parents can inculcate their religious beliefs in their children (though it is worth noting that hardcore atheist advocates like Richard Dawkins make serious challenges to even those sorts of practices). But it's quite another to say that parents can consent on their children's behalf (especially an IMPLIED consent contradicted by the child's own wishes) for strangers to brutally batter their child in the name of religion.
This falls squarely within the type of thing that truly consenting adults can do in privacy if they want to. But when it's done to a minor, it's child abuse. And when it's done to anyone who doesn't consent, it's a tort.
Also, I might add one other thing here. Obviously, the JURY found that there was no consent. Why isn't THEIR call on this issue the final word, whether some people on this thread think she consented or not?
They weren't strangers, they were known to her and her family. She wasn't brutally battered, she was held down.
Sure these people are looney toons, but let's keep this in perspective. It wasn't a brutal beating. It was simply holding her down while they prayed over her. And she added to the mysticism by foaming at the mouth.
I think it would be very dangerous to our freedoms if government could dictate what practices are permitted and what is not, beyond physically harming people.
In most states, the lack of such continual consent in sexual relations qualifies as rape (e.g. the partners can withdraw consent even after penetration). I don't see why that isn't the case here.
Same here. Exorcism has a long history, and exorcism procedures are ordinary church procedures. By showing up, Laura was consenting to the church's ordinary activities. There is no issue of non-consent here.
A claim that some sort of special consent should be required for exorcism activities above and and beyond the consent ordinarily implied by showing up necessarily hinges on an assumption that there is something unusual, abnormal, wrong, or harmful about exorcism, so that an ordinary person wouldn't expect it and shouldn't have been expected to have given implied consent to it. This is a claim the state cannot make consistently with the First Amendment. If Laura or her family don't want the possibility of being involved in an exorcism when they show up in church, they are free to find a church that doesn't do it.
The claim that exorcism activities inflict emotional distress is nothing more than a claim that the religious claims underpinning the practice of exorcism are wrong and that exorcism should not be an ordinary, commonly practiced church activity. The state has no business involving itself in such claims. One would have to claim, for example, that are no such things as demons and that a church's claim that a person's distress is caused by them is false. For a secular court to make such a finding agreeing with such a claim would fundamentally violate the First Amenment.
Religion is an emotional matter. Religious experiences and practices are often extatic and passionate. Religion does not have to be reasonable or Appolonian. To permit people to sue for emotional distress over ordinary, common extatic experience practices is tantamout to outlawing the practices.
There is nothing whatsoever to suggest that Lara's experience was anything other than ordinary. Carpet burns and minor bruises are par for the course for religions that regularly practice rolling around on the carpet (as the phrase "holy rollers" connotes, such practices are ordinary fare in certain religious circles). Having a demon exorcised should be expected to be an emotional experience fraught with emotional consequences. There's simply nothing out of the ordinary here. To permit suing an exorcist on grounds that an ordinary, run-of-the mill exorcism with ordinary, run-of-the-mill physical and emotional consequences inflicted emotional stress would have the same effect on religion as the effect on abortion would be if people who showed up for an abortion but had subsequent regrets were permitted to sue for false imprisonment, assault, emotional distress, etc. (Once again, this country has a veritable army of experts who would be willing to testify that abortion causes psychological trauma if such torts were permitted.)
What seems to be happening here is that people who simply don't like religion in general, and extatic religions that have personal, emotional experiences in particular, are simply imposing their personal views of these practices. Nothing out of the ordinary happened here in this ordinary, run-of-the-mill exorcism. There's no reason to freak out or get uptight about it. If people who don't like religion were permitted to impose the force of the law against religious practitioners whenever people found religious practices to be emotionally troubling, there would be no First Amendment.
We routinely accept sports injuries much more serious than minor burns and scrapes. We routinely accept that children will be restrained in uncomfortable circumstances, such as having to lie on the bottom of a tackle pile. Moreover, coaches routinely get children who feel they have had enough to do a little more. And we praise them for this and say it builds character rather than suing them over it.
Imagine if there a group of people who thought that sports should be banned as harmful to children, and this group, although unable to enact its views into law, was able every now and then to persuade an occassional jury to award large damages when a coach got a child who felt uneasy about continuing to participate to go on, and the child was subequently injured. Now imagine that the child had no physical injuries other than minor burns and scrapes, but simply found the restraint of being held against his will when being tackled emotionally traumatizing, and sued for false imprisonment and emotional distress rather than for physical injury.
I don't see the difference between the exorcism case and either the sports or the abortion case. In all three cases perceiving the existence of actionable injury is necessarily dependent upon a belief that the underlying activity (exorcism, contact sports, abortion) is harmful and should be discouraged by society. If we don't think the underlying activity is harmful, we're perfectly willing to brush off claims of emotional distress, accept theories of implied consent, treat the situation as an ordinary and foreseeable consequences of showing up for the activity involved, and think that the injuries involved aren't really very serious.
In the instant context, she was unable to unambiguously withdraw consent because of the belief that she as possessed. Given the beliefs she already consented to act by, those present were not convinced that *she* was withdrawing consent.
Since you used rape as an analogy, let's go with that. Suppose someone consented to a rape fantasy. During the middle of the fantasy, they say, "No. Stop." more or less as the "script" called for. The other person now has to decide, are they withdrawing consent or are they continuing the shared fantasy?
This is a risk a person accepts if they choose to participate in a rape fantasy. They can't then claim damages for a rape that doesn't stop as quickly as they might like.
Similarly, a person that accepts a "religious possession fantasy" cannot then claim psychic damages if the exorcism doesn't stop as quickly as they might like because the participants think she is "playing along" by acting possessed.
(Note that I'm not 100% sure I agree with this argument or that it applies completely to the facts of this case.)
A rape fantasy should normally include a "safe word" that will stop the scene. That way she can say 'no, stop' and the scene goes on, but if she says 'banana,' it's over.
Maybe churches should do the same thing.
The abortion patient didn't specifically consent to each step of the procedure, but she did consent to a procedure that she knew involved a certain level of bodily touching. If you get an abortion, these things, or things roughly as intrusive are done every time, and she asked for the procedure anyway, so she consented to them.
It would be different if the abortion clinic had, this one time, done something which is a lot more intrusive than a typical abortion. I have a hard time thinking of a good analogy, but let's say their equipment stopped working and she had to be transported to a clinic 200 miles away. The clinic would not be allowed to restrain her against her will in order to take her there, because while there's some possibility that an abortion might require such a thing, it's an atypical enough procedure that consent to abortion in general wouldn't imply consenting to it.
Most people who go to this church don't get forcibly exorcised, so consent to church practices in general doesn't imply consent to specific church practices that happen rarely and are more intrusive than the ones that happen most of the time.
ReaderY, you mistake the initial act of consent with consent to continue the process. For instance:
I make no such claim about the harmfulness or beneficence of any of those activities. Every human being ought to be able to judge for herself. An integral part of being able to make that judgment is the right to withdraw consent at any point in time.
BTW ReaderY, that's twice today you've managed to inject abortion into an irrelevant discussion (if anyone is keeping count).
Actually, I made it up out of the whole cloth just to disconcert those who insisted on the 'militia' interpretation of the Second Amendment. Agreeing sweetly with them and adding "it's just like the Religion Clause really only protects the right of states to have established churches" could produce some interesting sputtering.
I suppose it's outlived its usefulness but it is still a pretty good argument by itself. It gives the Religion Clause a neat and concise purpose, preserving state-established churches from being overridden by a federally-established one, and it's grammatically sounder than the 'book' interpretation, which picks the word "religion" out of "an establishment of religion" as the object of "thereof," where arguably the phrase is a term-of-art meaning 'an official church' and ought to be taken as a whole. Or at least, that's the argument I've made.
There's also the point that the Founding Fathers would have been well aware of past excesses in religious practice and therefore unlikely to give blanket immunity to religious exercise.
But, as you say, there's no contemporary evidence for my interpretation, so it's probably best looked at as an amusing exercise in exegesis.
Sports proceed under generally applicable rules of consent. I have published a couple of law review articles about the relationship between such rules and tort liability, but the basic principle is that sports activities fall under assumption of risk law and consent to physical contact within a sport is subject to the same rules as consent as a defense to a tort generally.
This case, on the other hand, is about creating a special religious privilege to abuse children. I think that's prohibited by the establishment clause; in any event, it's bad policy.
WRONG. Forcibly holding a woman down who wants to escape is akin to rape. This was a horrible brutalization. Outside the religious context, a man who did this would get 10 years in prison for assault with intent to rape.
And they were strangers in the sense that they were not intimate associates of the girl whom she might allow to touch her.
I am not sure this is true, but I will say something very controversial here. Under Employment Division v. Smith, the free exercise of religion does not extend to the physical-- as opposed to mental-- actions of religious groups upon their adherents absent consent. Think about this-- any neutral, generally applicable battery law can constitutionally apply to religious groups. Thus, absent a consent, the government can prohibit a religious group from laying a hand on you.
And I think this is, in fact, the only sensible rule. Yes, it means that idiots who believe in exorcisms might have to practice their witchcraft on adults and not children, and get consent forms from everyone before they go. That is not a big deal. The First Amendment protects freedom of conscience-- it doesn't protect the right to brutalize a child in the name of religious belief any more than it protects the right to ingest peyote.
There's nothing whatsoever to suggest that a victim of an assault with intent to commit rape was anything other than ordinary. Carpet burns and minor bruises are par for the course for oafs that regularly attempt to coerce their dates to engage in sex while rolling around on the carpet.
Except you would never say that-- and I would never want you too.
This was the physical equivalent of assault with intent to commit rape. I don't care if Jesus himself came down and personally blessed it, it was a despicable crime that ruined a teenage girl's life. And I am shocked at how insensitive people can be in going out of their way to defend idiotic beliefs.
I don't know if any of you have been forcibly held down for a period of time when you desperately want to get away but it can be a horrible experience, especially because not being able to move induces panic. Are you really saying that if you were at a local charity you frequently volunteer at and a bunch of your co-philanthropists jumped you and held you down screaming about you being possessed for a long time while you struggled wouldn't be very traumatic or that it shouldn't be legally deterred?
Or what if the religious group had kidnapped a young parishioner because they feared she was about to have pre-marital sex, get an abortion or just worship false gods? It seems impossible to reconcile this verdict with allowing damages in cases like the above.
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Moreover, like it or not courts must assume religious theories aren't reasonable beliefs for the purposes of exigent circumstances type exceptions to the law. I mean it's a generally established rule that most laws have an implicit exception for self-defense but not matter how genuienly I believe that a Wiccan girl cursing me will cause my imminent demise we can't let people get away with shooting the person doing the cursing in that situation.
More broadly we would generally accept some kinds of abduction to avert an imminent danger of torture. If I see a little boy about to be taken into the rectory of a priest I just discovered is molesting children I should remove those kids from him and deliver them to safety even if they are unwilling to go and this would otherwise count as abduction. Provided my belief was reasonable this would likely provide a valid affirmative defense from kidnapping charges. But believing that a terminally ill atheist child is in imminent danger of the far worse harm of eternal hellfire shouldn't get me off the hook for abducting them for forced baptism
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This having been said people should be allowed to practice their religion so long as it doesn't cross the line into overt child abuse. In particular a church should be able to hold it's members down and perform exorcisms on them so long as those members were reasonably made aware they were consenting to this by remaining in the church. Preferably they would have some kind of little form people could sign when they joined.
There was no sexual connotation here. And in Laura's religion, demonic possession and exorcism were not unusual. Church members would have expected the demon they were attempting to cast out to fight them.
Had the church members actually assaulted her (which is to say beat her) as part of the process, then absolutely they should be held liable, criminally as well as civilly. But that (as the facts were presented) is not what happened. They believed she was possessed and the physically restrained her and prayed over her. They didn’t hold her under water, beat her, or burn her at the stake; All of which cannot be sheltered under 1st amendment protections any more than shouting fire in a crowded theater can. There was no physical attack other than the restraint itself.
As extreme as their actions seem to an outsider such as myself, they were not to the participants, including Laura, who at 17 surely had seen and heard of such things before.
So holding this girl with "a sexual connotation" = 10 years in prison, but holding down this girl and CAUSING THE SAME INJURIES with "a religious connotation" = First Amendment protected activity?
They brutally assaulted her. For your information, being held down against her will is one of the worst experiences a 17 year old girl can have. The restraint IS a physical attack; indeed, it is one of the WORST physical attacks imaginable. I would not wish it on anyone.
This is all a bunch of excuse making. Let me put it this way-- I would imagine if MUSLIMS did something like this to a 17 year old girl, a lot of these same commenters would immediately and vociferously condemn Islam.
If I restrain you against your will to prevent you from doing something that you have the right to do, that may be a crime, but it doesn't rise to the level of attempted rape. Your attempts to equivicate rape with what this young woman experienced only denigrates the horror that rape and attempted rape really are.
Whatever fears being restrained created in this woman, I sincerely doubt the sexual assault was one of them.
While I'm sure that the young woman's experience was frightening, I just can't see that it rises to the level of brutal.
And if this is one of the worst physical attacks you can imagine, then your imagination is sadly lacking and I have to assume that your web activity is limited to Hello Kitty and Ziggy. I recommend that you find some of the sites that deal with the horrors of Somalia, Sudan, and Zimbabwe, and then tell me that the young woman's experience represents 'brutality' and is the functional equivalent of rape.
You persist in applying your beliefs to their actions. The church members reacted in a way that is entirely in keeping with their beliefs, and with the victims. Had they attempted to starve the demon out or beat the deamon out I would be right there with you demanding criminal prosecution.
If the church kidnapped a non-member they thought was possessed, that would be a crime.
But she was a memebr of the church, I have to assume she believed in demonic possession and exorcism. Had it been her brother, or mother, or father I assume she would have prayed over them while they were being held down until the pastor or whomever was satisfied the demon was cast out.
Why should she sue when the same was done to her. So yes, I believe that in this case the restraint of the young woman, which did not actually cause the injuries, but did contribute to them, is a constitutionally protected religious practice.
If the same thing happened today, they would react exactly the same way, the way their religious beliefs tell them they should.
Let's think for a minute about sheer scope of common religious activities that involve physical action -- ordination (laying on of hands), communion, baptism, circumcision, kosher slaughter (banned in several European countries), bowing or kneeling, and so on.
Can the government really ban each and every one of these? To suggest that it can is to realize how inconsistent an extreme reading of Smith is with constitutional language which expressly protects the physical "exercise" of religion rather than mere disembodied belief.
A clue that this reading is not correct is found in Church of the Lukumie Bablo Aye, where the Supreme Court held that the City of Hileah cannot prohibit a traditional church practice simply by declaring it to be barbaric or a form of cruelty. Government cannot be motivated by animosity towards traditional religious practices or a belief that such practices are harmful. Declaring that an exorcism inflicted "emotional distress" based on testimony that it has this effect is no different from declaring animal sacrifices to be a barbarism based on similar testimony.
If Smith were interpreted that think we get to the crux of it. "Exercise" is a physical realization: if a church is permitted only abstract belief and government can prohibit every conceivable exercise -- prohibit ordination, baptism, communion,
How can we explain people who are quick to call exorcisms "abuse" and call for their being banned but aren't willing to say the same thing about "football" despite the documentedly greater risk of more serious injuries (not to mention the psychic harm of being regarded as a loser)?
I honestly can't explain how a person who calls exorcism "barbaric" but doesn't call for outlawing "football" can have, or deserve, any self-respect. Such a person cannot possibly be acting out any actual interest for the well-being of the children involved. It's one thing simply to be a hypocrite. It's another thing to claim activities one finds disagreeable batter and brutalize children when one is perfectly willing to tolerate very similar activities when done by people whose ideological beliefs one finds agreeable. Either such people sincerely believe that such conduct is actually abuse and simply don't care that children are being routinely abused by their friends because they use accusations of abuse as nothing more than a tactic to get at their enemies, or such people don't believe for a minute that such conduct is really abuse but simply say so because it's a way to get at their enemies. In either case people are using children, and serious accusations about other people, as mere instruments for their own ends with no respect for their dignity or well-being. This is abuse, and I need to call apade a spade here anc call it what it is.
If you didn't believe in the Church's beliefs and practices, or weren't at least be willing to abide by them while at church activities, why would you be the sort of regular church-goer that Laura was?
It's not as if they took a stranger off the street. Suggesting the two cases are comparable is highly inappropriate.
Do you believe that a detention is false imprisonment? Why are you willing to permit school officials to hold a child against her will but not church officials? She was there, after all, with her parents' permissions. Normally church officals act in a quasi-parental role and are entitled to discipline children. If you're willing to trust school officials with this responsibility, why do you object to latitude for church officials? If the parents didn't trust the church officials to act in the child's best interests including taking religious beliefs into consideration, they could find another church.
The fact that there was neither physical injury nor any intent to cause the child harm is, in my view, decisive.
The situation is similar to that in Police v. City of Newark, 170 F.3d 359 (3d Cir. 1999), where Justice Alito, then a circuit judge, wrote an opinion striking down a Newark, NJ police regulation requiring a Muslims to shave but permitting exeptions to the shaving requirement for medical grounds. When a law provides exemptions for secular reasons but refuses to make one for religious belief without substantial justification, it does not have the neutrality and general applicability required by Smith to pass First Amendment muster. ("Because the Department makes exemptions from its policy for secular reasons and has not offered any substantial justification for refusing to provide similar treatment for officers who are required to wear beards for religious reasons, we conclude that the Department's policy violates the First Amendment.")
The situation here is similar. Like the do-not-shave regulation in Police, the do-not-restrain-a-child admits numerous exemptions, express and common-law, for a wide variety of people in various loco parentis or quasi loco parentis roles who are caring for children and acting out of a sincere belief that they are acting in the child's best interest, and where no serious physical injury occurs. Exemptions exist for school officials giving children detentions, medical exams by doctors, football tackles, and much, much more. In many cases parental consent is not required, and in all such cases an initial consent by the parent cannot be withdrawn after-the-fact unless the adult did something that goes substantantially beyond what an ordinary person in the role typically does.
There are simply too many widely-accepted exceptions here, far more than existed for the regulation struck down in Police v. City of Newark, for a claim that there the rule has any genuine neutrality or general application to hold any water.
Children may find being tackled or detained or exorcised traumatic, but this exorcism wasn't substantially different from an ordinary, run-of-the-mill exorcism, nor cause restraint, embarassment, or injuries different from an ordinary detention, medical exam, or tackle. There was no physical injury beyond what is typical in physical child's play and no lasting or serious injury of any kind.
There is no substantial justification for providing exemptions for all the other people who run various kinds of youth programs, but not for those who run religious youth programs.
Smith simply does not apply here.
See Police v. City of Newark, 170 F.3d 359 (3d Cir. 1999),
Indeed, many of the "justifications" provided on this website are substantially similar to anti-religius declarations the Supreme Court declared to be mere anti-religious prejudice in Church of the Leukumi Bablo Aye v. City of Hileah, FL. People are entitled to believe exorcism is barbaric and child abuse just as they are entitled to believe animal sacrifice is barbaric and a form of animal cruelty. But using this kind of harsh, dire condemnation language of the pyschic harms allegedly done by these activities does not help build a rational-justication for different treatment. The Supreme court noted in Lakumi Bablo Aye that opponents of animal sacrifice were harshly condemning slaughtering animals for sacrifice as cruelty to animals while accepting the physically very similar practice of slaughtering animals for food by the same methods, and regarded this hypocracy as evidence that what was really going on was represing religion, not furthering animal welfare.
So here. What the exorcist did was physically no different from what happens when a child is given a detention, or subjected to a medical exam, or tackled in a football game. There is simply no rational secular justification for the kind of harsh condemnation as "child abuse" exorcism has recieved in this forum, just as there was no legitimate secular foundation for the animal abuse claims made about sacrifice by the City of Hialeah.
I wasn't exactly suggesting they were comparable; I was asking if both cases were permitted. If we acknowledge the sincere religious belief of the "healers", what exactly are their limits as to whom they may apply their religious belief?
I didn't clearly see in the the court ruling, that the behavior was permissible, BUT ONLY IF APPLIED TO ATTENDEES OR MEMBERS OF THEIR OWN CHURCH. The part in all caps is what I'm asking. Common sense says of course it should only be attendees or members of the church, but does a law or court ruling clearly say so?
Lukumie involved a law that barred animal sacrifice. It was clearly a prohibition on religious activities.
However, a general cruelty-to-animals statute can certainly be applied to a church.
Similarly, yes, the government can prohibit ANY unconsented physical battery by a church on its members-- so long as the law is generally applied.
But she was a memebr of the church, I have to assume she believed in demonic possession and exorcism. Had it been her brother, or mother, or father I assume she would have prayed over them while they were being held down until the pastor or whomever was satisfied the demon was cast out.
Churches don't own their members. Their members can withdraw from the Church at any time, including while being held down.
Again, if you want to avoid this problem, I would suggest that churches: (1) don't do this to minors, and (2) get express carefully worded written consents.
But unconsented brutal battery of a minor (and a 17 year old girl being held down against one's will IS brutal-- stop minimizing it!) is simply not protected by the free exercise of religion.
The problem here is your claim the state of Texas has a generally applicable, neutral rule prohibiting child battery. It has no such rule.
In Lukumi Bablo Aye, the city of Hialeah characterized slaughtering animals for religious purposes as cruelty, but permitted similar slaughter for food. It didn't object to animal slaughter in the slightest. Only objected to animal slaughter for bad purposes and considered religion a bad purpose. The Free Exercise Clause protects against an approach. So long as the Hialeah permitted slaughter for food, it could not claim to have a generally applicable anti-slaughter statute. Simply labeling the religious practice "cruelty" doesn't cut the mustard; the state has to show that it takes label seriously where secular purposes are concerned.
Same here. Texas permits activities resulting in mild restraints and minor scrapes for numerous secular purposes. Football is legal in the state of Texas. Football is perhaps a paradigmatic example of a secular context in which these very same allegedly "cruel", "battery" activities are perfectly permitted and accepted by the State of Texas.
Unless the State of Texas is actually willing to enforce an anti-battery law neutrally - no contact sports, no corporal punishment, etc. etc. - or unless it has "substantial justification" for prefering its secular exemptions to religious ones -- the Free Exercise Clause protects against any efforts to selectively enforce it against religios practices. Since Police v. City of Newark found preferring a medical-necessity exemption to a religious exemption to be lacking in substantial justification, the bar here is very high -- a case where such a preference would be upheld would have to be something more serious than medical necessity.
Numerous practices regualarly accepted and perfectly legal in Texas -- football comes to mind -- regularly involve force, restraint, contact, and injuries significantly more serious than what was present in this case. If Texas is willing to tolerate the sort of force regular imposed in football and claim that this level of force is not child cruelty, its claim to have a neutral, generally applicable law against it can't be taken seriously. If a state is not justified to consider medical necessity more important than freedom of religion as Police v. City of Newark held, considering football more important surely isn't going to cut the mustard either.
Just as occured in Lukumi Bablo Aye, when conduct that occurs in a religious context is characterized as "brutal" but identical conduct that occurs in a secular context is accepted, claims of "brutality" reflect nothing more than anti-religious prejudice.
A claim that animal sacrifice could be prohibited under an actual general animal cruely statute makes for an interesting hypothetical, but in practice such a law is not going to happen. A general, neutral statute would have to prohibit animal slaughter for secular purposes -- for food, euthanasia, everything. No state would be willing to enact such a law.
Same here. No state would be willing to enact a law prohibiting contact sports and the many other situations where children are confined and subject to force. No jury is going to find an amusement park operater liable for $300,000 because a child's plea to be let out of an operating ferris wheel or roller coaster was ignored (if you haven' been to an amusement park lately, such pleas happen all the time. Keeping the kid restrained until the roller coaster stops may be medically necessary, but remember medical necessity isn't sufficient justification for treating religion differently. Doctors regularly restrian children during medical procedures -- but once again, medical necessity doesn't justify treating religion differently. Police v. City of Newark's implications are that powerful.
For numerous circumstances in life, for numerous people who deal with children -- doctors, teachers, coaches, amusement park operators, parents -- restraint for what is believed to be the child's best interests happens sometimes, others sometimes disagree, but we don't call these things battery or cruelty. To selectively call tackling or blocking that causes no physical injury "child abuse" merely because the tackling or blocking happens to take place in a religious practice rather a secular recreational activity is simply to express anti-religious prejudice.
Sure it does. Its common law of torts is such a rule.
Same here. Texas permits activities resulting in mild restraints and minor scrapes for numerous secular purposes. Football is legal in the state of Texas. Football is perhaps a paradigmatic example of a secular context in which these very same allegedly "cruel", "battery" activities are perfectly permitted and accepted by the State of Texas.
Bad analogy, because you are at the wrong level of generality. An analogy to Lukumi would be if Texas permitted all sports except sports engaged in by religious organizations. Texas does not do that. Rather, it permits all sports and medical procedures and prohibits non-sports non-medical procedure batteries. The ban on non-sports non-medical procedure batteries is generally applicable, whether a batterer batters a woman for fun or because the batterer hallucinates the existence of a devil. In contrast, the only thing that Hialeah went after was religious killing of animals.
Generally applicable does not mean no exceptions. It means the exceptions can't be drawn in a way that target religious groups. Texas' battery law is generally applicable.
For numerous circumstances in life, for numerous people who deal with children -- doctors, teachers, coaches, amusement park operators, parents -- restraint for what is believed to be the child's best interests happens sometimes, others sometimes disagree, but we don't call these things battery or cruelty.
Actually, you are wrong. Doctors receive consent by proxy, and a doctor who operates without consent, absent exigent circumstances, is liable for battery. Teachers are authorized to batter only in limited circumstances. Exceed statutory authorization and they are liable for battery. Same with amusement park operators beyond scope of consent. Parents are quite often held liable for injuring their child with unreasonable force.
What you really want to do is immunize abusive practices by fundamentalist Christians. That's not general applicability, but a get out of jail free card for abuse in the name of Jesus.
Moreover, there are really far, far more exceptions than we've been discussing. Restraining a child against its will is regularly permitted, even required, in countless other situations, from riding in a motor vehicle or amusement park ride to school detentions, and many more. Children who don't want to be there are restrained in school buses all the time, and children decide they've had enough at the top of amusement park rides are regularly restrained and their pleas ignored until the rides are over. The exceptions are so numerous there's far, far less generality than there was in Police v. City of Newark, so much less generality that it's not even close.
Once again, you are characterizing religious practices as "abusive" when you are perfectly willing to accept conduct with physically similar results when done in a wide variety of secular contexts. Your willingness to accept this wide variety of secular contexts belies your claim that you actually believe that restraining a child temporarily in a way that leaves results similar to minor rug burns is actually abusive. You are perfectly willing to accept this conduct and outcome in a wide variety of secular contexts. You don't consider it abusive in these contexts. You consider it justified. You only consider it unjustifed and abusive in a non-general set of contexts that selectively includes religious contexts. For this reason, your unwillingness to accept this conduct in religious contexts has nothing whatsoever to do with the conduct and outcome itself. It has everything to do with your opinion about religion.
I think a better analogy would be a doctor dealing with a patient undergoing a delirium/psychosis episode who gave express permission when sane. In this analogy, we can see that it would be inappropriate for the state to impose a safeword rule on doctors dealing with psychotic episodes, because such a rule would depend on an assumption that psychosis is something that the "patient" can voluntarily snap out of at any time and that medical theories claiming it to be a real phenomenon are false.
There is no need for the state to involve itself in deciding whether demonic possession is real phenomenon like psychosis or a fantasy game like a rape fantasy. By initially participating in the exorcism, Laura necessarily bought into the set of concepts of individuality that go along with the entire business of exorcisms and theories of demonic possession, including agreement with the basic concept that she wasn't wholly herself and was turning to the pastor for help in a manner analogous to the relationship between a patient with psychotic episodes and a doctor. The pastor was entitled to rely on this.
To decide the question would violate the First Amendment.
A fundamental problem with a broad reading of the Smith case is that under such a reading, a state could easily outlaw the signature practices of all the world's major religions, including all the religions well-known to the Framers. It could enact a general ban circumcision as e.g. "male genital mutilation." It could enact a general ban on alcohol that could apply to communion wine. It could enact a general ban on segregated seating and outlaw the practices of traditional Islam, Orthodox Jews, and some Christian communities. It could pass a general sex discrimination law outlawing gender differences in religious rituals. It could enact a general marriage law requiring all marriage ceremonies to follow a state-approved script.
Given the broad constructions that even conservative judges have generally given to specifically enumerated textual individual rights, iIt is difficult for me to conceive that the framers of the Free Exercise Clause of the First Amendment could have intended, or previous courts would have permitted construing the Free Exercise clause to be essentially as narrow as the prohibition on regulating intrastate commerce, a law that simply has the effect of increasing the employment opportunities for lawyers by permitting the state to prohibit virtually any religious practice it wants merely by doing a little bit of lawyering to package and characterize laws as "general" prohibitions by including a prohibition on something else along with the prohibition on the religious practice. To give Smith its broadest construction and Lukumi Bablo Aye its narrowest would result in an interpretation where only laws specificly targetting religion would be covered by the First Amendment, and a little bit of lawyering could easily prevent such an oddity from ever arising.
Police v. City of Newark approaches the issue by taking the opposite tack, giving Smith its narrowest possible construction and Lukumi Bablo Aye its broadest. Under Police, a "general" law is defined so narrowly that it is becomes at risk of becoming an endangered species, an oddity so rare that one may rarely find it in daily life. Under Police, so long as looks permits some exception -- virtually any exception -- a level of scrutiny that looks awfully like the old strict scrutiny comes into play. And virtually all laws have exceptions.
Police's "substantial justification" requirement for laws that are only imperfectly general does give Smith some scope. Anything the state could do under the old strict scrutiny reegime it can do under Smith, because whenever the state had a compelling state interest under the old regime it will have substantial justification under Smith. There won't be any human sacrifice cases just because killing is permitted in self-defense. Moreover, laws that truly brook no exceptions are becoming all too common. The recent case of the person with the life sentence for transposing two digits in an address and delaying moving, the cases where children have been expelled from school for having pocket or dinner knives, all suggest that laws that permit no exceptions are a real possibility.
I think Smith was wrongly decided, and I think Police is an improvement over a broad reading of Smith. But if the Supreme Court adopts the Police approach, I would truly hope that the culture wars don't lead to situations where people opposed to religious practices start pulling existing exceptions just so they won't have to grant one to religion. That would be a truly perverse result. It would be a truly sad (and fortunately, an unlikely one) if the State of Texas banned football, or required a timeout to sign a separate informed consent form before every play or change of possession, just so that it could prohibit an exorcist from tackling a demonically possessed child in a church.
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