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.