1. There has been considerable discussion about the meaning of the term “cult” and about whether it is opprobrious to use it. See, for example, the discussion among participants in a symposium on cults, collected in 9 N.Y.U. Rev. L. & Soc. Change, No. 1 (1979-1980). In this article, I shall use the term, interchangeably with others, to refer to non-establishment religious groups. No bias is intended.

2. For a more complete account of the Puritans, see Miller, P., The New England Mind: The Seventeenth Century (1935)Google Scholar.

3. On Robert Owen, see Kephart, W., Extraordinary Groups: An Examination of Unconventional Life Styles 265–89 (1987)Google Scholar; Robert, R., The New Communes: Coming Together in America 25–27 (1971)Google Scholar; see also Hawthorne, N., The Blithedale Romance (1852)Google Scholar.

4. Stein, , A Sect Apart: A History of the Legal Troubles of the Shakers, 23 Ariz. L. Rev. 735 (1981)Google Scholar; Arrington, L. and Bitton, D., The Mormon Experience: A History of the Latter-Day Saints (1979)Google Scholar.

5. Ahlstrom, S., A Religious History of the American People (1972)Google Scholar; Jackson, C., The Original Religions and American Thought: Nineteenth-Century Explorations (1981)Google Scholar; Koch, G., Religion of the American Enlightenment (1968)Google Scholar; Marx, H., Religions in America (1977)Google Scholar; Reardon, B., Religious Thought in the Nineteenth Century (1966)CrossRefGoogle Scholar; Olmstead, C., History of Religion in the United States (1960)Google Scholar; The Social Impact of New Religious Movements (Wilson, B. ed. 1981)Google Scholar; Wilson, , The Historical Study of Marginal American Religious Movements, in Religious Movements in Contemporary America, (Zaretsky, I. and Leone, M. eds. 1974)Google Scholar.

6. Discussions of the characteristics of contemporary alternative religions can be found in Galanter, M., Cults: Faith, Healing and Coercion (1989)Google Scholar; Kephart, W., Extraordinary Groups: An Examination of Unconventional Life Styles, (3d ed. 1987)Google Scholar; Smelser, N., Theory of Collective Behavior (1963)CrossRefGoogle Scholar; The New Religious Consciousness (Glock, C. and Bellah, R. eds. 1976)Google Scholar. There are numerous new religions in addition to the Unification Church and the Church of Scientology. Those that have received significant public notoriety include the international Society for Krishna Consciousness (the “Hare Krishna”), Rajneeshpuram and the People's Church. For accounts of the Hare Krishna, see Hubner, J. and Gruson, L., Monkey on a Stick: Murder, Madness and the Hare Krishna (1988)Google Scholar; Earnest, , “This is Our Life and Soul”: Hare Krishnas Find Friends in Neighbors, L.A. Times, 04 19, 1990, at 1B, col. 2Google Scholar; for Rajneeshpuram, see Fitzgerald, F., Cities on a Hill 247–381 (1986)Google Scholar); and, for the People's Church, see Naipaul, S., Journey to Nowhere: A New World Tragedy (1981)Google Scholar.

7. For a fuller description of the Unification Church, see United States v. Moon, 718 F.2d 1210 (2d Cir., 1983), cert, denied 466 U.S. 971 (1984); Barker, , Who'd Be a Moonie? A Comparative Study of Those Who Join the Unification Church in Britain, in The Social Impact of New Religious Movements (Wilson, B. ed. 1981)Google Scholar; Stoner, C. and Parke, J., All God's Children (1977)Google Scholar.

8. Molko v. Holy Spirit Ass'n, 46 Cal. 3d 1092, 762 P.2d 46, 252 Cal. Rptr. 122 (1988), cert. denied, 490 U.S. 1084.

9. Turner v. Unification Church, 473 F. Supp. 367 (D.R.I. 1978), aff'd per curiam, 602 F.2d 458 (1st Cir. 1979).

10. L. Ron Hubbard, a science fiction writer and lay psychologist, has written a number of books, including Dianetics, the Modern Science of Mental Health: A Handbook of Dianetics Procedure (2d ed. 1985).

11. Descriptions of the Church of Scientology are found in Founding Church of Scientology v. United States, 409 F.2d 1146 (D.C. Cir. 1969), cert. denied, 396 U.S. 963 (1969); United States v. Article or Device, 333 F. Supp. 357 (D.D.C. 1971); Wallis, A., The Road to Total Freedom: A Sociological Analysis of Scientology (1977)Google Scholar.

12. United States v. Articles or Device, 333 F. Supp. 357 (D.D.C. 1971); Hernandez v. Commissioner, 490 U.S. 680 (1989).

13. Christofferson v. Church of Scientology, 57 Or. App. 203, 644 P.2d 577, petition for review denied, 293 Or. 456, 650 P.2d 928 (Or. Sup. a. 1982), cert. denied, 459 U.S. 1206 (1983); Van Schaick v. Church of Scientology, 535 F. Supp. 1125 (D. Mass. 1982).

14. Driel, Van and Richardson, , Print Media and New Religious Movements: A Longitudinal Study (1986)Google Scholar. See also Bromley, D. and Richardson, J., The Brainwashing/Deprogramming Controversy (1983)Google Scholar.

15. On reactions of the courts to the Shakers, see Ball v. Hand, 5 W.L.J. 238, at 244 (Super. Ct., Cincinnati, Ohio 1848) (court granted custody of children to maternal grandmother, because father would “plant them in the cold, ascetic bosoms” of the Shakers); Stein, , A Sect Apart: A History of the Legal Troubles of the Shakers, 23 Ariz. L. Rev. 735 (1981)Google Scholar. On the courts' reactions to Mormon polygamy, see Reynolds v. United States, 98 U.S. 145 (1879); Davis v. Beason, 133 U.S. 333 (1890); Norgren, J. and Nanda, S., American Cultural Pluralism and Law 71–82 (1988)Google Scholar.

16. Parents of cult members are a significant source of criticism of the new religions. Parents have sometimes reacted by seizing their children and placing them in the hands of “deprogrammers” who claim to use psychological methods to “deprogram” them from the effects of the new religions. Cases in which the courts have permitted parents to seize and deprogram their children include: Peterson v. Sorlien, 299 N.W.2d 123 (Minn. 1980), cert. denied, 450 U.S. 1031 (1981); Baer v. Baer, 450 F. Supp 481 (N.D. Cal., 1978); Weiss v. Patrick, 453 F. Supp. 717 (D.R.I. 1978), aff'd mem., 588 F.2d 818 (1st Cir. 1978), cert. denied, 442 U.S. 929 (1979); Hoelander v. Patrick, Unreported No. 77 Civ. 2401 (S.D.N.Y., April 19, 1984). But see Ward v. Connor, 657 F.2d 45 (4th Cir., 1981); Cooper v. Molko, 512 F. Supp. 563 (N.D.Cal. 1981). See Note, , Cults, Deprogrammers and the Necessity Defense, 80 Mich. L. Rev. 271 (1981)Google Scholar; Recent Decisions-Torts-False Imprisonment, 30 Emory L.J. 959 (1981)Google Scholar. All these are civil actions by cult members against their parents and deprogrammers; I could find no criminal actions brought against parents. Civil actions in which deprogrammers are held not liable for seizing and deprogramming cult members include those set forth above, as well as United States v. Patrick, 532 F.2d 142 (9th Cir. 1976). For cases in which deprogrammers have been held liable, see Taylor v. Gilmartin, 686 F.2d 1346 (10th Cir. 1982), 459 U.S. 1147 (1983); Eilers v. Coy, 582 F. Supp. 1093 (D. Minn. 1984). Unlike parents, deprogrammers have been subjected to criminal actions. People v. Patrick, 541 P.2d 320 (Colo. 1975); People v. Patrick, 126 Cal. App. 3d 952, 179 Cal. Rptr. 276 (1981).

17. The cases that will be discussed in this article include Schuppin v. Unification Church, 435 F. Supp. 603 (D.Vt. 1977), aff'd per curiam, 573 F.2d 1295 (2d Cir. 1977); Turner v. Unification Church, 473 F. Supp. 367 (D.R.I. 1978), aff'd per curiam, 602 F.2d 458 (1st Cir. 1979); Christofferson v. Church of Scientology, 57 Or. App. 203, 644 P.2d 577 (1982), cert. denied, 459 U.S. 1206 (1983); Van Schaick v. Church of Scientology, 535 F. Supp. 1125 (D. Mass. 1982); Meroni v. Holy Spirit Ass'n, 119 A.D.2d 200, 506 N.Y. S.2d 174, 504 N.E.2d 698 (1986), appeal dismissed, 69 N.Y.2d 742, 504 N.E.2d 698 (1987); Molko v. Holy Spirit Ass'n, 46 Cal. 3d 1092, 762 P.2d 46, 252 Cal. Rptr. 122 (1988), cert. denied, 490 U.S. 1084 (1989); Wollersheim v. Church of Scientology, 212 Cal. App. 3d 872, 260 Cal. Rptr. 331 (1989), cert. denied, 110 S. Ct. 1937 (1990); George v. International Soc'y for Krishna Consciousness, 213 Cal. App. 3d 729, 262 Cal. Rptr. 217 (1989) (ordered not published), petition for reh'g denied, 1989 Cal. App. Lexis 996 (1989), cert. denied, 58 U.S.L.W. 3720 (May 15, 1990). In George, defendants have filed a petition for certiorari in the U.S. Supreme Court asking for a reduction in damages. International Soc'y for Krishna Consciousness v. George, 213 Cal App. 3d 802, — P.2d — 262 Cal. Rptr. 215 91989), petition for cert. filed, 58 U.S.L.W. 3634 (Feb. 28, 1990).

18. Norgren, J. and Nanda, S., American Cultural Pluralism and Law (1988)Google Scholar. In performing this mediatory function, the courts tend to support those religious sub-cultures whose behavior and values are most like those to which the dominant culture aspires, and to prohibit the activities of religious sub-cultures that run counter to the values of the dominant culture. Thus, the courts found against the Shakers and Mormons who were viewed as threatening the dominant culture's belief in the nuclear family, one by having too few wives and the other by having too many. See footnotes 4 and 15 above. The courts were more sympathetic to the Amish, noting that their belief in the nuclear family and hard work mirrors the value system of the larger culture. Wisconsin v. Yoder, 406 U.S. 205 (1972) (permitting the Amish to take their children out of public high schools). But see Johnson v. Charles City, 368 N.W.2d 74 (Iowa 1985), cert. denied, 474 U.S. 1033 (1985) (denying to Baptists exemption from public schooling). The Amish, however, were not permitted to exclude themselves from social security registration. See, e.g., United States v. Lee, 455 U.S. 252 (1982); Hostetler, , The Amish and the Law: A Religious Minority and its Legal Encounters, 41 Wash. & Lee L. Rev. 33 (1984)Google Scholar. Frequently, the disapproval by the dominant culture of a religious sub-culture is expressed indirectly in court actions that do not focus upon the activities that aroused the larger culture's distrust but upon other issues. Rajneeshpuram, for example, was criticized for its opposition to the individualistic and democratic values of its Oregon neighbors, but its leader was brought to court for immigration violations. Bhagwan Shree leaves U.S after pleading guilty to immigration charges, N.Y. Times, Nov. 13, 1985, at 6A; see also N.Y. Times, Dec. 26, 1985, at 24A; N.Y. Times, Oct. 1, 1985, at 7D. And there have been many suits for nonpayment of taxes or contesting a new religion's tax exemption. See infra note 19.

19. For example, the courts have tended to be sympathetic to parents in the deprogramming cases. See note 16 above. And, in tax cases, the courts have generally held against the Unification Church and the Church of Scientology. United States v. Moon, 718 F.2d 1210 (2d Cir. 1983), cert. denied, 466 U.S. 971 (1984) (affirming conviction for filing false income tax returns, in that returns failed to include monies given to defendant by Unification Church); Holy Spirit Ass'n v. Commissioner, 45 N.Y. Supp. 2d, 292, 55 N.Y.2d 512, 435 N.E.2d 662 (1982); Church of Scientology of California v. Commissioner, 823 F.2d 1310 (9th Cir. 1987) (affirming revocation of tax exempt status because organization's income inured to benefit of individuals). The U.S. Supreme Court has recently decided that payments for auditing are not charitable contributions for purposes of federal income tax. Hernandez v. Commissioner, 490 U.S. 680 (1989). The case reached the Supreme Court from all but one of the Circuit Courts of Appeal, where the issue was pursued in a set of virtually identical cases. The parties stipulated that Scientology is a religion and that auditing is a form of a religious observance, so deductibility would depend upon whether auditing fees constitute a voluntary contribution or payment for services. The Circuits were divided on whether denial of deductibility evinces an excessive entanglement of government with religious doctrine and observance, as well as a governmental preference for religions that obtain their funding in other ways. Four Courts of Appeal held that the payments were not deductible: Hernandez v. Commissioner, 819 F.2d 1212 (1st Cir. 1987); Miller v. IRS, 829 F.2d 500 (4th Cir. 1987); Graham v. Commissioner, 822 F.2d 844 (9th Cir. 1987); and, Lee v. Commissioner, 843 F.2d 481 (10th Cir. 1988). Three Circuits, meanwhile, held that the payments were deductible: Foley v. Commissioner, 844 F.2d 94 (2d Cir. 1988); Neher v. Commissioner, 852 F.2d 848 (6th Cir. 1988); and, Staples v. Commissioner, 821 F.2d 1324 (8th Cir. 1987). Even without the Supreme Court's ruling that auditing fees are not deductible, it may no longer be possible to obtain charitable deductions for contributions of any kind to the Church of Scientology, as the IRS has revoked the organization's tax-exempt status, finding that the Church operates for a substantial commercial purpose and that a portion of its earnings go to the personal benefit of church officials and their families. Church of Scientology of California v. Commissioner, 823 F.2d 1310 (9th Cir. 1987).

20. See especially Schuppin v. Unification Church, 435 F. Supp. 603 (D. Vt. 1977); Turner v. Unification Church, 473 F. Supp. 367 (D.R.I. 1978); Meroni v. Holy Spirit Ass'n, 119 A.D.2d 200, 504 N.E.2d 698, 506 N.Y.S. 2d 174 (1986). The courts have occasionally permitted former members to sue the organization for activities that did not involve mental coercion. Christofferson v. Church of Scientology, 57 Or. App. 203, 644 P.2d 577 (1982); Van Schaick v. Church of Scientology, 535 F. Supp. 1125 (D. Mass. 1982).

21. Molko v. Holy Spirit Ass'n, 46 Cal. 3d 1092, 762 P.2d 46, 252 Cal. Rptr. 122 (1988); Wollersheim v. Church of Scientology, 212 Cal. App. 3d 872, 260 Cal. Rptr. 331 (1989); George v. International Soc'y for Krishna Consciousness, 213 Cal. App. 3d 729, 262 Cal. Rptr. 217 (1989).

22. See notes 114-170 infra and accompanying text.

23. See notes 134-163 infra and accompanying text.

24. Schuppin v. Unification Church, 435 F. Supp. 603 (D.Vt. 1977) (parents may not bring action on behalf of adult daughter who is a member); Turner v. Unification Church, 473 F. Supp. 367 (D.R.I. 1978) (no private right of action under 13th Amendment and federal laws prohibiting involuntary servitude).

25. See notes 20-21 supra and accompanying text.

26. Turner v. Unification Church, 473 F. Supp. 367 (D.R.I. 1978).

27. Id. at 372.

28. Id. at 370-71. Plaintiff further alleges, “Due to this alleged involuntary servitude, Turner suffered grave physical, emotional and economic harm.” At 371.

29. Id. at 376. In its unwillingness to accept psychological coercion as a basis for involuntary servitude, Turner was a precursor of United States v. Kozminski, 487 U.S. 931 (1988), the recent Supreme Court opinion holding that, at least for purposes of criminal prosecutions, “involuntary servitude” means, “a condition of servitude in which the victim is forced to work for the defendant by the use or threat of physical restraint or physical injury, or by the use or threat of coercion through law or the legal process.” (emphasis added). The Kozminski opinion attempts to eliminate any opportunity for former members of new religions to sue on the basis of involuntary servitude caused by mental coercion. The opinion notes (though in dictum) that “a religious leader who obtains personal services by means of religious indoctrination” will not be subject to prosecution for involuntary servitude. Id. at 949. Nevertheless, uncertainty remains as to the liability of religions in civil actions. In Kozminski, Justice O'Connor holds that in a criminal prosecution, proof of absence of choice must be limited to physical restraint because it is the only objective evidence that choice has been denied, and the imposition of criminal penalties must be based on proof that is clear, objective, and certain. Left open is the question whether in a civil action where the standards of proof are not so rigorous, evidence of psychological coercion alone might be sufficient. See also United States v. King, 840 F.2d 1276 (6th Cir. 1988) (leaders of religious sect criminally liable for involuntary servitude because they used physical force to make children in sect perform labor).

30. Turner, 473 F. Supp. at 374.

31. Plaintiff's claim for interference with advantageous relations was dismissed on the grounds that, were Rhode Island law to recognize this tort between parents and children, it would do so only for a minor child. Id. at 378. The Court also dismissed plaintiff's quantum meruit claim, on the grounds that prior expectation by the worker of payment is an element of implied contracts. Plaintiff's complaint alleged only that the consideration she expected was that her work would help to create a better world. Id. at 378. See also Van Schaick v. Church of Scientology, 535 F. Supp. 1125 (D. Mass. 1982); and Lewis v. Holy Spirit Ass'n, 509 F. Supp. 10, (D. Mass. 1983) (holding that “no recovery can be had in quantum meruit for services rendered by reason of charitable or religious motives”). At 13. The Lewis court cited Turner for this proposition. Although it is a broader statement of the principle than the Turner court stated, it is not necessarily broader than other cases have held. Courts are hesitant to impose upon charities the potential tax and insurance burdens that might result if the services of volunteers could be characterized as the work of employees. St. John's First Lutheran Church in Milwaukee v. Stortsteen, 77 S.D. 33, 84 N.W.2d 725 (1957); Carlson v. Krantz, 172 Minn. 242, 214 N.W. 928 (1927).

32. Plaintiff raised causes of action under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., and the Racketeer influenced and Corrupt Organizations Act, 18 U.S.C.S. § 1961 et seq., as well as common law actions for breach of contract, fraud and intentional infliction of emotional distress. Van Schaick v. Church of Scientology, 535 F. Supp. 1125 (D.Mass. 1982).

33. Plaintiff brought claims for fraud and outrageous conduct (intentional infliction of emotional distress). Christofferson v. Church of Scientology, 57 Or. App. 203, 644 P.2d 577 (1982).

34. The court permitted her to sue on two counts of fraud and one of intentional infliction of emotional distress. Van Schaick v. Church of Scientology, 535 F. Supp. 1125, 1145 (D. Mass. 1982).

35. The court permitted her to proceed on her fraud claim. Christofferson, 644 P.2d at 605.

36. Van Schaick, 535 F. Supp. at 1131-32.

37. Id. at 1132.

38. Id. at 589.

39. Id. at 582 and 589.

40. Under this policy, enunciated by L. Ron Hubbard in 1968, former members, or others who have been denominated “suppressive persons” by the organization, “may be deprived of property or injured by any means by any Scientologist without any discipline of the Scientologist.” Christofferson, 644 P.2d at 590, quoting letter of L. Ron Hubbard, dated October 18, 1967. Defendants asserted that the “Fair Game” policy had been discontinued. Id, at 590. See also Wollersheim v. Church of Scientology, 212 Cal. App. 3d 872, 260 Cal. Rptr. 331 (1989) (church liable for “Fair Game” policy that systematically destroyed plaintiff's business); and, Allard v. Church of Scientology, 58 Cal. App. 3d 439, 129 Cal. Rptr. 797 (1976) (church liable for “Fair Game” policy consisting of false allegations that caused plaintiff to be convicted of a crime and imprisoned).

41. Van Schaick, 535 F. Supp. at 1132.

42. Christofferson, 644 P.2d at 592-93.

43. The Racketeer influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1964(c), permits civil claims for treble damages for persons injured by violations of RICO (i.e., by the use of business enterprises for illegal purposes). Van Schaick alleged that she, and others in her class, were injured by the illegal activities and fraudulent claims of the organization, including its sale of auditing services. The court, however, held that RICO protection does not extend to consumers, that the E-meter is not a fraudulent device under RICO provisions, and that plaintiff failed to allege any criminal acts by defendant resulting in injuries to herself. Van Schaick, 535 F. Supp. at 1135-39.

44. Plaintiff claimed that the organization breached its promise of pay and other benefits in exchange for plaintiff's work. The court held that the terms of this purported agreement were too vague to constitute an enforceable contract. Van Schaick, 535 F. Supp. at 1139-40.

45. The Fair Labor Standards Act, (FLSA), 29 U.S.C. §§ 201-206, provides minimum wage standards. The court held that the Act did not apply to plaintiff because she was not “a person whose employment contemplated compensation,” and because the claim was time barred. Van Schaick, 535 F. Supp. at 1140.

46. Plaintiff claimed that by the order to disconnect from her husband, the organization intentionally subjected her to emotional distress. The court held that this demand by the organization, similar to those made by “numerous religious, political, military and social movements over the ages,” does not “constitute the kind of extreme and outrageous action which will support a claim for intentional infliction of emotional distress.” Van Schaick, 535 F. Supp. at 1139. Plaintiff also claimed that the organization's disclosure to her attorney of the contents of her auditing files intentionally subjected her to emotional distress. The court denied this claim and the claim based on the organization's disconnect policy on the grounds that the complaint did not state sufficient facts to support either claim. Van Schaick, 535 F. Supp. at 1139.

47. Van Schaick, 535 F. Supp. at 1140-41.

48. Id., at 1141-142.

49. Christofferson, 644 P.2d at 590-93.

50. Id., at 593-97.

51. Van Schaick, 535 F. Supp. at 1139; Christofferson, 644 P.2d at 590-93; Lewis v. Holy Spirit Ass'n, 589 F. Supp. 10, 12 (D. Mass. 1983); Meroni v. Holy Spirit Ass'n, 506 N.Y.S.2d 174, 119 A.D.2d 200, 504 N.E.2d 698 (1987) Molko v. Holy Spirit Ass'n, 46 Cal. 3d 1092, 762 P.2d 46, 252 Cal. Rptr. 122 (1988).

52. Handford, , Intentional infliction of Mental Distress: Analysis of the Growth of a Tort, 8 Anglo-Amer. L. Rev. 1 (1979)CrossRefGoogle Scholar; Theis, , Intentional infliction of Emotional Distress: A Need for Limits on Liability, 27 DePaul L. Rev. 275 (1978)Google Scholar; Sabin, , Intentional infliction of Mental Distress—Seventeen Years Later, 66 Ill. Bar J. 248 (1978)Google Scholar; Agis v. Howard Johnson Co., 371 Mass. 140, 355 N.E. 2d 315 (1976). The tort of intentional infliction of emotional distress, as applied to the question of psychological coercion, contains an ambiguity that the courts have not sorted out. As originally developed, the tort focused on plaintiffs' injuries, and the purpose in permitting claims was to recognize that a person's injuries may be solely mental or emotional in nature. The tort carries with it, however, the concomitant notion that defendant's conduct toward plaintiff also may be non-physical, but proof of this aspect of the tort has produced greater difficulties for the courts than proof as to whether a plaintiff has suffered mental injury.

53. Lewis, 589 F. Supp. at 12; Van Schaick, 535 F. Supp. at 1139; Restatement (Second) of Torts, § 895 F. (1979); Prosser, W., Law of Torts, § 122 (4th ed. 1971)Google Scholar.

54. Christofferson, 644 P.2d at 590; Meroni, 506 N.Y.S.2d at 178. By defining intolerable or outrageous behavior as unusual or socially unacceptable behavior, the courts have created a relativistic standard. As society generally grows more intolerable or outrageous, as emotionally destructive behavior becomes more widespread or more acceptable to greater portions of society, there are fewer activities that will be considered tortious.

55. Van Schaick, 535 F. Supp. at 1139.

56. Christofferson, 644 P.2d at 590.

57. Schuppin, 435 F. Supp. at 609.

58. George v. International Soc'y for Krishna Consciousness, 213 Cal. App. 3d 729, 262 Cal. Rptr. 217 (1989).

59. Schuppin, 435 F. Supp. at 604.

60. Id. at 609. See also Turner, 473 F. Supp. 367, in which plaintiff, who was nineteen years old when she joined the organization, sued alleging the alienation of the affections of her parents and friends. The court dismissed the claim on the ground that under Rhode Island law only a spouse has a claim for interference with advantageous relations; the court added, as in Schuppin, that were it to recognize such a claim between parents and children, it would do so only if the child were a minor. Id. at 378. See also Orlando v. Alamo, 646 F.2d 1288 (8th Cir. 1981) (Arkansas does not recognize a parent's claim for alienation of child's affection).

61. The claims included holding Schuppin in involuntary servitude or peonage, denying her the value of her services, making her work long hours without compensation, failing to make social security contributions or to withhold payroll taxes, and seducing her into joining the organization. Schuppin, 435 F. Supp. at 604-05.

62. Id. at 60S. Tamara Schuppin stated that she wished no part in the suit.

63. Id. at 606. See also Katz v. Superior Court, 73 Cal. App. 3d 952 (1977), a case similar to the Turner case, in that plaintiff parents asked to be made guardians of their adult children on the grounds that the children, members of a new religion, had been “brainwashed.” The Katz appellate decision overturned the guardianship order of the trial court.

64. Schuppin, 435 F. Supp. at 606.

65. George, 252 Cal. Rptr. at 233-34. Plaintiff claimed that she had been falsely imprisoned and that the organization had intentionally caused her emotional distress. The court refused both claims on the grounds that plaintiff had consented. Id. at 237.

66. Id. at 235.

67. Id. at 234-35.

68. Id. at 235.

69. Like the Schuppins, Robin George's mother also sued the cult on her own behalf, claiming that defendants had intentionally inflicted severe emotional distress on her and her husband by concealing their child from them. Unlike the Schuppins, Marcia George prevailed, perhaps because Jim George had died of a heart condition exacerbated by his long struggle to find his daughter. The court held that Robin's consent to the organization's activities estopped her from suing but was not a bar to the action by her parents. Id. at 238.

70. Meroni v. Holy Spirit Ass'n, 119 A.D.2d 200, 506 N.Y.S.2d 174, 504 N.E.2d 698 (1986).

71. This quote is taken from the trial court opinion in the case. Meroni v. Holy Spirit Ass'n, 125 Misc. 2d 1061, 480 N.Y.S.2d 706, at 709 (1984) (cited herein as “Sup. Ct.”). These techniques were alleged to have included “an intensive program of heavy and protracted exercises, intense fasting from food and beverages, a program of chanting and related activities designed by the Unification Church to take control of… Meroni's mind and judgment.” Sup. Ct. at 709. The Appellate Division added:

The bill of particulars further describes the ‘intensive, heavy and protracted’ program of exercises as including long hikes and group exercises. The form of information control exercised over the decedent consisted of isolating the decedent from ‘all information about himself or others which would cause him to question the activities of the Unification Church. This would include access to printed, aural and visual media; access to any area or people outside the training camp; and limited or monitored access to friends and family through telephone calls’. The plaintiff's bill of particulars also makes reference to confessions, lectures, and highly structured work and study schedules.

Meroni, 506 N.Y.S.2d 174, at 177 (2d Dept. 1986) (cited herein as “App. Div.”).

72. Sup. Ct. at 709-10. See also Wollersheim v. Church of Scientology, 212 Cal. App. 3d 872, 260 Cal. Rptr. 331 (1989) (church held liable for aggravating plaintiff's manic-depressive condition by physical restraints, destruction of his business and other coercive tactics).

73. The differences in the recital of facts by the trial court, which would have permitted plaintiff to bring an emotional distress claim, and the Appellate Division, which did not, are revealing. The trial court quoted plaintiff's allegation that the Church willfully caused his son's suicide. Sup. Ct. at 707. The Appellate Division mentioned only that decedent's “emotional breakdown” was a result of the Church's indoctrination program, App. Div. at 177, but did not draw a connection between the Church's activities and Meroni's suicide, saying only that:

In October 1977, the plaintiff's son Charles, who was at the time a student at Columbia University, entered a training program for membership in the Holy Spirit Association for the Unification Church. Within a month the plaintiff's son left the program and eventually returned home, where he remained until January 9, 1978, when he took his own life.

74. App. Div. at 177. In contrast (although perhaps in dictum), the U.S. Supreme Court has recently stated that a victim's mental incapacity may have some bearing in deciding whether a prosecution for involuntary servitude can occur. United States v. Kozminsky, 487 U.S. 931 (1988).

75. Emphasis added. App. Div. at 178, quoting the trial court opinion, No. 769-529 (Calif. Superior Ct., San Francisco, Dept. No. 3, Oct. 20, 1983) in Molko v. Holy Spirit Ass'n. The Molko and Meroni cases have an inter-related history. The Molko trial court had held in 1983 that, “An adult who is not shown to be gravely disabled, must have the personal and individual right to decide for himself or herself whether to associate with a religious group” (emphasis supplied). Since Molko was not disabled the phrase is dictum and was inserted, we must assume, as judicial over-caution. The Meroni trial court, however, in 1984, referred to it in finding that Charles Meroni, who was, in that court's opinion, gravely disabled, had a cause of action. In March 1986, a California Court of Appeal, hearing the Molko appeal, cited not to its own trial court's opinion, but to the Meroni trial court opinion (but without explaining the use that the Meroni court made of the phrase), when it advanced the proposition that only for the gravely disabled (and, thus, not for Molko) will a court ignore the assumption of individual responsibility. Then, in September 1986, the New York Appellate Division, without reference to the use made of the phrase by the New York trial court, quoted the California trial court, and found that Charles Meroni's disability was not grave. But, in 1988, the California Supreme Court overruled its Court of Appeals and held that Molko did have a cause of action. In doing so, it referred to the Meroni trial court opinion without noting that it had been overruled in New York.

76. Sup. Ct. at 709-10.

77. App. Div. at 177.

78. Van Schaick, 535 F. Supp. at 1139. (refusing plaintiff's claim that the Church's exhortations to sever ties with her family constituted the tort of intentional infliction of emotional distress). Id. at 1141-42 (accepting plaintiff's claim that the Church's plan to harass her for leaving the organization, if proven, constitutes the tort of intentional infliction of emotional distress). See also Wollersheim v. Church of Scientology, 212 Cal. App. 3d 872, 260 Cal. Rptr. 331 (1989); and, Allard v. Church of Scientology, 58 Cal. App. 3d 439, 129 Cal. Rptr. 797 (1976).

79. Molko, 252 Cal. Rptr. 122.

80. Id. at 139.

81. Id.

82. Wollersheim, 260 Cal. Rptr. at 336-48.

83. Id. at 314-48.

84. Id. at 336-37.

85. Id. at 344.

86. Van Schaick v. Church of Scientology, 535 F. Supp. 1125 (D. Mass. 1982); Christofferson v. Church of Scientology, 57 Or. App. 203, 644 P.2d 577 (1982); Molko v. Holy Spirit Ass'n, 46 Cal. 3d 1092, 762 P.2d 46, 252 Cal. Rptr. 122 (1988).

87. Van Schaick, id. at 1141; Christofferson, id. at 593-594.

88. Molko, 252 Cal. Rptr. 122.

89. Id. at 127-28.

90. Id. at 126. The organization seems to follow the same harsh regimen at its other induction centers, as well. See the trial court opinion in Meroni v. Holy Spirit Ass'n, 125 Misc. 2d 1061, 480 N.Y.S. 2d 706 (1984) for a description of the similar routine at the organization's training center in New York.

91. Molko, 252 Cal. Rptr. at 137. Richard Delgado has argued that religious organizations ought by statute to be required to disclose to potential recruits both their identities and their indoctrination methods. Delgado, , Cults and Conversion: The Case for informed Consent, 16 Ga. L. Rev. 533 (1982)Google Scholar; Delgado, , Religious Totalism: Gentle and Ungentle Persuasion under the First Amendment, 51 S. Cal. L. Rev. 1, 73–74 (1977)Google Scholar. The court cited to the latter article (at 137) but not to the former, which contains a more thorough discussion of Delgado's proposal. His proposal differs from the holding in Molko, in that he would require disclosure of the methods that the organization intends to use, whereas the court required disclosure only of the organization's identity.

92. Molko, 252 Cal. Rptr. at 139. Later decisions recognized that Molko intended to separate fraud or other torts from brainwashing. The court in George, 262 Cal. Rptr. at 237, refused to permit plaintiff to bring a claim alleging that brainwashing was the cause of her emotional distress:

Although the Supreme Court's decision in Molko held the plaintiffs there had stated a cause of action for intentional infliction of emotional distress … the court makes it abundantly clear … that the allegations of fraud [and not of brainwashing] are an essential part of the plaintiffs' emotional distress claim.

Id

93. Molko, 252 Cal. Rptr. at 130.

94. Id. at 131-32. Compare this court's acceptance of expert testimony with the negative characterization of expert testimony in Schuppin v. Unification Church, 485 F. Supp. 603 (1977).

95. Molko, 252 Cal. Rptr. at 134-37.

96. Although the tort of false imprisonment could theoretically be accomplished by means of mental duress alone and jurisdictions differ as to whether they consider physical restraints a necessary element of the tort, courts are more likely to find that the tort has occurred when there is evidence of the threat or use of physical constraints. Compare, for example, Eilers v. Coy, 582 F. Supp. 1093 (D. Minn. 1984) (allegations that handcuffs, security men and forcible restraint were used for at least a week; court holds plaintiff has claim for false imprisonment) with Peterson v. Sorlien, 299 N.W.2d 123 (Minn. 1980) (plaintiff free to move about, not restrained; held that plaintiff had consented to defendant's actions) and Weiss v. Patrick, 453 F. Supp. 717 (D.R.I.), aff'd, 588 F.2d 818 (1st Cir. 1978), cert. denied, 442 U.S. 929 (1979) (plaintiff subjected to verbal harangues for many hours by defendants, but not physically assaulted or restrained; held no cause of action for false imprisonment). Johnson, , Recent Decisions—Torts— False Imprisonment, 30 Emory L.J. 959 (1981)Google Scholar. See also People v. Murphy, 98 Misc.2d 235, 413 N.Y. Supp. 2d 540 (1977) (Hare Krishna not guilty of criminal offense of unlawful imprisonment, as did not use physical restraints).

97. Molko, 252 Cal. Rptr. at 140.

98. Id. at 140.

99. George, 262 Cal. Rptr. at 235-37.

100. Id. at 232.

101. Id. at 236.

102. Id.

103. Id.

104. See Reich, , Brainwashing, Psychiatry and the Law, 39 Psychiatry 400, 402 (1975)Google Scholar for an evocative discussion of the law's inability to recognize the coercive power of economic and environmental constraints. For discussions of the functions served in the legal system by the ideology of individuality, see Boldt, , Restitution, Criminal Law and the Ideology of individuality, 77 J. Crim. L. & Criminology 969, 996–1014 (1986)CrossRefGoogle Scholar; and Turnbull, , The individual, Community and Society: Rights and Responsibilities from an Anthropological Perspective, 41 Wash. & Lee L. Rev. 77 (1984)Google Scholar.

105. Schuppin, 435 F. Supp. 603.

106. Id. at 604.

107. Id.

108. For an argument that the Schuppin court's decision was correct, on the grounds that the first amendment's freedom of religion clause prohibits guardianship orders except where the child did not consent to the psychological methods to which she was subjected, see Shapiro, , Of Robots, Persons, and the Protection of Religious Beliefs, 56 S. Cal. L. Rev. 1277 (1983)Google Scholar.

109. George, 262 Cal. Rptr. at 235.

110. Christofferson, 644 P.2d at 609.

111. Meroni, 506 N.Y.S.2d at 177.

112. Molko, 252 Cal. Rptr. at 143.

113. Of course, disclosure of the cult's identity will lessen the likelihood of brainwashing only if the potential convert recognizes the cult's name and knows of its reputation for coercive persuasion. Richard Delgado has suggested that cults should be required to divulge both their identities and their methods. See supra note 91.

114. “Total institutions” are organizations like boarding schools, prisons and cults, in which the behavior of members is completely regimented.

115. Compare, for example, Robbins, , Religious Movements, the State and the Law: Reconceptualizing the Cult Problem, 9 N.Y.U. Rev. L. & Soc. Change 33 (1979–1980)Google Scholar, and Anthony, , The Fact Pattern Behind the Deprogramming Controversy: An Analysis and an Alternative, 9 N.Y.U. Rev. L. & Soc. Change 73 (1979–1980)Google Scholarwith Delgado, , Religious Totalism as Slavery, 9 N.Y.U. Rev. L. & Soc. Change 51 (1979–1980)Google Scholar, and Rudin, , The Cult Phenomenon: Fad or Fact?, 9 N.Y.U. Rev. L. & Soc. Change 17 (1979–1980)Google Scholar. See also The Brainwashing/Deprogramming Controversy (Bromley, D. and Richardson, J. eds. 1983)Google Scholar.

116. The Frye test, which most courts use in determining whether scientific evidence will be admitted, does not require that scientists be unanimous in order that the courts may adopt a scientific technique or finding, but only that the discovery be “sufficiently established to have gained general acceptance in the particular field in which it belongs.” Frye v. United States, 293 F. 1013 (D.C Cir. 1923). For a discussion of the vagaries of the Frye test (how much acceptance constitutes “general acceptance”? how are “particular fields” delineated? does the Frye formulation apply to the testing method or to the results of the test?), see Gianelli, , The Admissibility of Novel Scientific Evidence: Frye v. United States a Half-Century Later, 80 Colum. L. Rev. 1197 (1980)CrossRefGoogle Scholar.

117. See, e.g., the decision by the U.S. Supreme Court in Brown v. Board of Education, 347 U.S. 483 (1954), was predicated upon the Court's finding that the provision of separate educational facilities leads to low self-esteem and poorer educational attainment among black pupils. This finding was based on social science data, but it did not have the support of all social scientists at the time. Rosen, , History and State of the Art of Applied Social Research in the Courts, in The Use/Nonuse/Misuse of Applied Social Research in the Courts (Saks, M. and Baron, C. eds. 1980)Google Scholar; Sanders, , Rankin-Widgeon, , Kalmers, and Chelser, , The Relevance of “Irrelevant” Testimony: Why Lawyers Use Social Science Experts in School Desegregation Cases, 16 Law and Soc. Rev. 403 (1981–1982)CrossRefGoogle Scholar. Brown demonstrates one aspect of the tangled relations between law and social science. Sociology sometimes influences the development of legal doctrine, but the law influences social science as well. Social scientists might have disagreed prior to the Brown decision about the results of integrated education, but few reputable social scientists disagreed about the value of integration after the decision came down.

118. Christofferson, 644 P.2d 577 (court suggests plaintiff got involved and stayed in cult because she desired to do so, not because she was coerced). But see the cases involving attempts by parents to seize their children from the cults and deprogram them, such as Peterson v. Sorlien, 299 N.W.2d 1223 (Minn. 1980) (court accepts defense contention that it is reasonable for parents to believe that indoctrination is carried out by coercive persuasion which undermines the capacity for informed consent).

119. The courts sometimes phrase issues of this sort as a line-drawing problem. The courts could, for example, argue that if the law were to recognize lesser degrees of culpability, then the courts would have to determine where to draw the line between the kinds of behavior that are legally acceptable and the kinds that are not. Would the socialization methods of family and schools be called into question? Would advertising agencies be liable? Once it is admitted that all individuals are shaped and limited by culture, the problem becomes one of distinguishing those methods and levels of inculcation that are acceptable from those that are unacceptable. The courts have, for the most part, not wanted to draw lines between different levels or kinds of mental coercion. Instead, they insist that individuals always have free choice, unless they are impeded by physical constraints.

120. Schuppin, 435 F. Supp. at 606.

121. Meroni, 506 N.Y.S.2d at 178.

122. Social (or legislative) facts form the basis for legislation or for judicial policymaking on issues of broad social concern, whereas party (or adjudication) facts are those immediately relevant only to the dispute at issue. This distinction was first drawn by ProfessorDavis, Kenneth Culp, An Approach to Problems of Evidence in the Administrative Process, 55 Harv. L. Rev. 364, 402 (1942)CrossRefGoogle Scholar. See also Davis, , Facts in Lawmaking, 80 Colum. L. Rev. 931 (1980)CrossRefGoogle Scholar. See also Davis, , ‘There is a Book Out…’: An Analysis of Judicial Absorption of Legislative Facts, 100 Harv. L. Rev. 1539 (1987)CrossRefGoogle Scholar.

123. For the argument that receiving social facts solely through judicial notice is susceptible to the dangers of bias and inaccuracy, see Perry, and Melton, , Precedential Value of Judicial Notice of Social Facts: Parham as an Example, 22 J. Fam. L. 633 (1983–1984)Google Scholar; and Davis, , ‘There is a Book Out…’: An Analysis of Judicial Absorption of Legislative Facts, 100 Harv. L. Rev. 1539 (1987)CrossRefGoogle Scholar. Social facts are difficult to present at trial, which may explain why many lawyers delay their presentation until the appellate brief. At a trial, will social science studies be read into the record? Must the jury read them? Will, as is usually (and ineffectively) the case, both sides marshall expert witnesses to recite their contradictory conclusions?

124. See articles cited at notes 122 and 123 above. See also Monahan, and Walker, , Social Authority: Obtaining, Evaluating and Establishing Social Science in Law, 134 U. Pa. L. Rev. 477 (1986)CrossRefGoogle Scholar.

125. See, e.g., Muller v. Oregon, 208 U.S. 412 (1908), upholding minimum wages and maximum hours for women workers. When the Supreme Court accepted Brandeis' proffered tabulations of wages and working conditions as a basis for its decision in that case, the Court did so both because these social facts accorded with the Court's view of current social conditions and as an implicit statement by the Court that the weight of new social realities made legal change inescapable. Similarly, the Supreme Court in Brown, 347 U.S. 483 (1954), used the authority generated by a social science compilation of data as persuasive support for its argument that law of almost 100 years standing could be changed. That the Court in Brown viewed the social science contribution as part of its legal and policy argument, rather than as facts to be adduced at trial, is demonstrated by subsequent cases, holding that the inferiority of education in segregated schools is a holding of law rather than a finding of fact. See supra note 117.

126. Molko, 252 Cal. Rptr. at 131-32.

127. Citing Lifton, R., Thought Reform and the Psychology of Totalism (1961)Google Scholar and Schein, , Coercive Persuasion (1961)Google Scholar, both of which are studies of prisoners of war during the Korean conflict; and, on the mentally coercive techniques of religious groups, Delgado, , Religious Totalism: Gentle and Ungentle Persuasion under the First Amendment, 51 S. Cal. L. Rev. 1 (1977)Google Scholar; Rudin, A. and Rudin, M., Prison or Paradise? The New Religious Cults (1980)Google Scholar; and Clark, , Destructive Cult Conversion: Theory, Research and Treatment (1979)Google Scholar.

128. Neither of the court's citations for this proposition is convincing. Peterson v. Sorlien, 299 N.W.2d 123 (Minn. 1981) is a case in which a member of a new religion sues her parents for forcible deprogramming, and the court concludes only that defendants were not unreasonable in their belief that their daughter had been brainwashed. The court also cites Meroni v. Holy Spirit Association, 125 Misc. 2d 1061 (1984), the trial court version of the case, without mentioning that the trial court has been over ruled. For the story of the continuing interplay between the Molko and Meroni cases, see supra note 75.

129. Citing Coleman, , New Religions and the Myth of Mind Control, Am. J. of Orthopsychiatry 322 (1988)Google Scholar; and Scheflin, A. and Opton, E., The Mind Over Manipulators (1983)Google Scholar.

130. Molko, 252 Cal. Rptr. at 131.

131. Id. at 130-31.

132. Both methods are simplistic applications of the Frye doctrine. See note 116 supra.

133. Molko, 252 Cal. Rptr. at 136-37.

134. See, e.g., United States v. Ballard, 322 U.S. 78 (1944); Torcaso v. Watkins, 367 U.S. 488 (1961); United States v. Seeger 380 U.S. 163 (1965); Sherbert v. Verner, 374 U.S. 398 (1963).

135. For an example of the excessive government regulation that occurs when courts abandon this analysis, see Employment Div., Dep't of Human Resources of Oregon v. Smith, 495 U.S. —, 110 S. Ct. 1595 (1990).

136. In Sherbert, 374 U.S. 398, the Supreme Court held that the issue of whether a belief system is a religion is a threshold question in determining whether first amendment protection is warranted, but the scope of that inquiry is itself limited by first amendment concerns. Thus, for example, religion was once defined, in Davis v. Beason, 133 U.S. 333, 342 (1890), as referring to the relations of persons to their Creator. But, in later cases, the Supreme Court has held that it is not necessary, in order to qualify as a religion, to evince a belief in God. See Torcaso v. Watkins, 367 U.S. 488 (1961); United States v. Moon, 718 F.2d 1210, 1227 (2d Cir. 1983). But once the court gives up the traditional definitions of what constitutes a religion, it is difficult for it to deny religious status to any group claiming it. The D.C. Circuit has held that a court may deny religious status, but only on a showing that the form of religious organization was “created for the sole purpose of cloaking secular enterprise with the legal protection of a religion.” Founding Church of Scientology v. United States, 409 F.2d 1146 (D.C. Cir.), cert. denied, 396 U.S. 963 (1969). See also Washington Ethical Soc'y v. District of Columbia, 249 F.2d 127 (D.C. Cir. 1957); Holy Spirit Ass'n v. Tax Comm'r of New York, 55 N.Y.2d 512, 435 N.E.2d 662 (1982). This inquiry is usually in two parts: first, a substantive investigation, which includes reviewing the doctrine of the organization to see whether it is a description of humanity's place in the universe; second, a functionalist inquiry into whether the organization operates by holding services, performing marriages and doing the other things that religious groups normally do. Washington Ethical Soc'y v. District of Columbia, 249 F.2d 127 (D.C. Cir. 1957) There is no universal agreement that these ought to be the tests for ascertaining whether an organization is a religion, since both tests judge new religions on how clearly they imitate established churches. Both tests are, thus, culturally biased. Nor do all commentators agree that the organization's statement that it is a religion should ever be open to question. See Heins, , Other People's Faiths: The Scientology Litigation and the Justiciability of Religious Fraud, 9 Hastings Const. L. Q. 153 (1981)Google Scholar and cases cited therein; see also Thomas v. Review Board, 450 U.S. 710 (1981); Africa v. Pennsylvania, 662 F.2 1025 (3d Cir. 1981), cert. denied, 456 U.S. 908 (1982).

137. Van Schaick, 535 F. Supp. at 1143.

138. United States v. Ballard, 322 U.S. 78 (1944); Founding Church of Scientology v. United States, 409 F.2d 1146 (D.C. Cir. 1969); Washington Ethical Soc'y v. District of Columbia, 249 F.2d 127 (D.C. Cir. 1957).

139. Van Schaick, 535 F. Supp. at 1144, citing Founding Church of Scientology. The insoluble problem for the courts, in determining whether an organization is a religion, is that it is impossible to make that determination other than by scrutinizing the organization's beliefs, activities and doctrine. Such scrutiny, however, may be constitutionally impermissible. Even if the courts do not require a belief in a divine being, but merely require that the beliefs be concerned with human nature or humanity's place in the universe, which are the standards set out in Torcaso and Seeger, the courts may be making the kind of judgments about the truth or falsity of religious beliefs that Ballard sought to preclude. On the other hand, if the courts make no investigation at all, then any organization will be able to claim first amendment protection, merely by declaring itself to be a religion. As a way out of this dilemma, Heins suggests that the court's inquiry should be limited to ascertaining whether the organization's belief system fills the same place in its adherents' lives as is filled by establishment religions in their members' lives. Heins, , Other Peoples' Faiths: The Scientology Litigation and the Justiciability of Religious Fraud, 9 Hastings Const. L. Q. 153 (1981)Google Scholar, citing Seeger. The problem with Heins' definition is that it is both too narrow (religions as diverse as Buddhism and Native American faiths could be omitted, on the grounds that they are not expected to fill the same place in their members' lives as that filled by an established Judeo-Christian organization) and too broad (in a secular world, philosophy, therapy and work do fill the same place in people's lives once occupied by religion). See also Washington Ethical Soc'y, which narrows this potentially liberal inquiry to questions of whether the organization holds services, performs marriages and does other things that established religions do. See also Johnson v. Wolf, 443 U.S. 595 (1979) which attempts to establish “neutral principles of law” on which religious inquiries may be based.

140. But see Ingber, , Religion or Ideology: A Needed Clarification of the Religion Clauses, 41 Stan. L. Rev. 233 (1989)CrossRefGoogle Scholar, who argues that it is precisely a belief in “matters of ultimate concern” that distinguishes religion from other belief systems.

141. For a discussion of the cultural bias inherent in an inquiry of this sort, see Developments—Religion and the State, 100 Harv. L. Rev. 1606, 1626–31 (1987)Google Scholar. Cultural bias (a tendency to view activities similar to those of established religions as religious and activities unlike those of established religions as secular) often colors free exercise decisions. For example, a number of writers have suggested that cases involving Native American religions are decided ethnocentrically, in that the courts are more willing to uphold those Native American religious rituals that can be described in a way that emphasizes their similarity to western religious rites, but do not protect attempts by Native Americans to animate and revere nature. Note, , Indian Religious Freedom and Governmental Development of Public Lands, 94 Yale L.J. 1477 (1985)Google Scholar; and, Note, , Indian Worship v. Government Development: A New Breed of Religion Cases, 1984 Utah L. Rev. 313Google Scholar.

142. Cantwell v. Connecticut., 310 U.S. 296 (1940); Wisconsin v. Yoder, 406 U.S. 205 (1972); Employment Div., Dep't of Human Resources of Oregon v. Smith, 495 U.S. —, 110 S. Ct. 1595 (1990). Even religious activities can be regulated, provided that there is an over-riding societal purpose in doing so, that the regulation is neutral as to the content of the religious message, and that the regulation is the least restrictive means available. Cantwell, supra; International Soc'y for Krishna Consciousness, Inc. v. Barber, 650 F. 2d 430 (2d Cir., 1981); Heffron v. International Soc'y for Krishna Consciousness Inc., 452 U.S. 640 (1981).

143. For an example of the difficulties involved in attempting to separate secular and religious activities, compare the line of cases in which the use of peyote was found to be a religious activity of Native American religions: People v. Woody, 61 Cal. 2d 716, 394 P.2d 813, 40 Cal. Rptr. 69 (1964); Peyote Way Church of God v. Smith, 742 F.2d 193 (5th Cir. 1984); Golden Eagle v. Johnson, 493 F.2d 1179 (9th Cir., 1974); Employment Div. Dep't of Human Resources v. Smith, 495 U.S. —, 108 S. Ct. 1595 (1990), with cases in which drug use by members of non-Indian religions was treated differently, United States v. Spears, 443 F.2d 895 (5th Cir. 1971), cert. denied, 404 U.S. 1020 (1972) (no religious justification for use of drugs), and Leary v. U.S., 383 F.2d 851 (5th Cir. 1967) (no religious justification for use of drugs). The historical anomaly of this particular line of cases may have been mooted by Smith (peyote case), but the underlying difficulty of separation of secular and religious activities nontheless remains in areas not explicitly addressed in the criminal context.

144. Turner v. Unification Church, 473 F. Supp. 367, 371 (D.R.I. 1978), citing United States v. Ballard, 322 U.S. 78 (1944), and United States v. Seeger, 380 U.S. 163 (1965), neither of which is on point, except in holding that the good faith of religious adherents may not be scrutinized. It has been held that the courts should abstain from interfering in the relations between a religion and its members, Rosicrucian Fellowship v. Rosicrucian Fellowship Non-Sectarian Church, 39 Cal. 2d 121, 245 P.2d 481 (1952), cert. denied, 345 U.S. 938 (1953), but it has also been held that a religious organization may be held accountable for the commission of intentional torts upon members. Bear v. Reformed Mennonite Church, 462 Pa. 330, 341 A.2d 105 (1975) (interference with business relations and alienation of affections). But see Paul v. Watchtower Bible and Tract Soc'y, 819 F.2d 875 (9th Cir. 1987) (“shunning” of former church members is constitutionally protected religious activity).

145. Turner, 473 F. Supp. at 371-72, citing cases that regulated activities of religions, such as the sale by children of religious pamphlets, Prince v. Massachusetts, 321 U.S. 158 (1944), and parading without a permit, Cox v. New Hampshire, 312 U.S. 569 (1941). These cases do not, however, hold that these activities may be regulated on the grounds set out in Turner.

146. See Heffron v. International Soc'y for Krishna Consciousness, Inc., 452 U.S. 640 (1981), involving claims of members of Krishna movement that soliciting funds from and selling trinkets to passersby, is a religious ritual, integral to their belief system. Unlike the court in Turner, which holds that soliciting is a secular activity, the U.S. Supreme Court, in the Heffron case, accepted the parties' stipulation that soliciting is a religious activity, though the court decided that it may be regulated.

147. Turner, 473 F. Supp. at 372.

148. See supra note 134.

149. Turner, 473 F. Supp. at 372.

150. See supra note 120.

151. The need to preserve life may also mark the limits of the courts' tolerance of individual free choice generally, although these cases tend to involve the lives of others, not the life of the religious adherent. On snake handling, see State of Tennessee ex rei. Swann v. Pack, 527 S.W.2d 99 (1975). On blood transfusions, see Jehovah's Witnesses in the State of Washington v. King's County Hosp., 278 F. Supp. 488 (1967); Harley v. Oliver, 404 F. Supp. 450 (W.D. Ark. 1975); Stelens v. Yake, 432 F. Supp. 834 (N.D. Ill. 1977).

152. Wisconsin v. Yoder, 406 U.S. 205 (1972); but see Reynolds v. United States, 98 U.S. 145 (1890).

153. Employment Div., Dep't of Human Resources of Oregon v. Smith, 495 U.S. —, 110 S. Ct. 1595 (1990).

154. Id. 110 S. Ct. at 1606.

155. Id.

156. United States v. Ballard, 322 U.S. 78 (1944); United States v. Seeger, 380 U.S. 163 (1965).

157. Van Schaick, 535 F. Supp. at 1141. The Van Schaick court also considered whether defendants' statements that plaintiff would receive housing and other benefits and defendants' statements inducing plaintiff to become a member of the Church would be actionable. The court decided that, if Scientology is a religion, the former statements were nevertheless actionable because they were about purely secular matters but the latter were not because they related to religious belief.

158. Christofferson, 644 P.2d at 600.

159. Id. at 602. One might note that self-improvement is a long-standing promise of establishment Protestantism. See Weber, M., Capitalism and the Rise of Religion (1963 ed.)Google Scholar. The question of the mixed secular and religious nature of auditing has arisen in tax cases, as well. See supra note 19.

160. See also George, 262 Cal. Rptr. 217, holding that the organization's statements inducing plaintiff to run away from home are not religious because they do not have a religious purpose.

161. Wollersheim v. Church of Scientology, 212 Cal. App. 3d 872, 260 Cal. Rptr. 331, 344 (1989).

162. Molko, 252 Cal. Rptr. at 134, citing Sherbert v. Verner, 374 U.S. 398 (1963); Wisconsin v. Yoder, 406 U.S. 205 (1972).

163. Molko, 252 Cal. Rptr. at 132-33, citing Wisconsin v. Yoder, 406 U.S. 205 (1972); Braunfield v. Brown, 366 U.S. 599 (1961).

164. Molko, 252 Cal. Rptr. at 135.

165. The court at 135 cited Katz v. Superior Court, 73 Cal. App. 3d 952 (1977), which overturned parental attempts to gain court assistance in wresting their adult children from a new religion. Katz, the court said, is inapposite, because plaintiffs were asking the court to agree that the religion's beliefs were false. Here, the opinion said, neither the court nor the plaintiff argued that the organization's belief were false or insincere, but merely that it would have been helpful to have been told at the outset what those beliefs were and who the organization was.

166. Molko, 252 Cal. Rptr. at 136 (citations omitted).

167. Id. at 135.

168. Turner, 473 F. Supp. at 371-72.

169. See, e.g., Tushnet, , The Constitution of Religion, 18 Conn. L. Rev. 701 (1986)Google Scholar. For a general discussion of constitutional approaches to religious discourse, see Levinson, S., Constitutional Faith (1988)Google Scholar. For an interesting, if idiosyncratic view on this question, see Lupu, , Keeping the Faith: Religion, Equality and Speech in the U.S Constitution, 18 Conn. L. Rev. 739 (1986)Google Scholar.

170. Molko, 252 Cal. Rptr. at 143-56.

171. Id. at 150.

172. Id. at 149.

173. Analogies to established churches are frequently made by the courts to demonstrate that the organization's practices are not so unusual as to give rise to the tort of intentional infliction of emotional distress. See Part I. C above. Here, while that is certainly an inference that the dissent wished us to draw, the analogy was made primarily to illustrate the purposes underlying the first amendment's proscriptions.

174. Molko, 252 Cal. Rptr. at 149.

175. Id. at 150.

176. Schuppin, 435 F. Supp. 603.

177. Meroni, 506 N.Y.S.2d 174.

178. George, 262 Cal. Rptr. at 233-35.

179. Turner, 473 F. Supp. 367.

180. Christofferson, 644 P.2d 577; Van Schaick, 535 F. Supp. 1125; George, 262 Cal. Rptr. 217.

181. Molko, 252 Cal. Rptr. 122.