LAW AND RELIGION: LAW AND NEW RELIGIOUS MOVEMENTS

New religious movements (NRMs), sometimes referred to pejoratively as "cults" or "sects," have tested the boundaries of social control in many societies in the West since they developed several decades ago, first in the United States, and then in other countries. Indigenous NRMs, have also developed in non-Western countries such as China, where the Falun Gong emerged some years ago, much to the consternation of the Chinese government. Legal solutions have often been sought to the perceived need to exert social control over NRMs. This need for control is often promoted in Western countries by participants in what sociologists refer to as the "anticult movement" (ACM), made up of disaffected former members, parents of participants, leaders of a few traditional religious groups, political leaders, and even, on occasion, journalists. In both Western and non-Western countries, political, legal, and judicial officials at every level have occasionally combined in efforts, often supported by the media, to exert control over NRMs. Thus the law, in some societies, has become a major instrument of social control over NRMs, encouraging the courts to affirm community norms and values as well as political ideology to the disadvantage of NRMs and other minority faiths.

Legal actions against NRMs in various societies have used preexisting laws, creative extensions of existing laws and legal procedures, and even new legislation. The application of law to NRMs in different countries and regions of the world has varied considerably. These major applications of law as an instrument of social control over NRMs will be examined, as will efforts by NRMs to make use of the law to challenge their detractors.

Conservatorships and NRMs

When NRMs first came to the attention of the general public and policymakers in the United States, they were not viewed as a social problem. That changed quickly when it became clear that many NRMs in the U.S. and other Western societies were high-demand religions—that is, religions requiring extensive commitment and lifestyle changes in the lives of their members. Young, relatively affluent members of society were dropping out of school, becoming missionaries, or fund-raising on the streets of the United States and elsewhere. Parents of some recruits in the United States sought help from government officials, but that was not easily obtained, given that the First Amendment of the United States Constitution guarantees religious freedom, and because most participants in NRMs were of legal age. This impasse led some parents to self-help solutions, such as kidnapping and "deprogramming," sometimes combined with legal efforts to exert control. In countries without First Amendment protections and with a more paternalistic approach toward citizens, direct state intervention often replaced such self-help methods.

The first use of the legal system against NRMs in the United States was to seek temporary guardianships or conservatorships. This gave parents legal control over their children and the assistance of law enforcement in the effort to secure physical custody over, and even to deprogram, the young convert. Conservatorship laws are pervasive in the United States, but their main focus is to allow adult children to assume responsibility for elderly parents who can no longer fend for themselves. Use of conservatorship laws against participants in NRMs began in the mid-1970s, and it was successful for several years, with the courts conveniently forgetting that the subjects of the laws were not elderly people, but young people who had joined a religious group of which their parents did not approve. The courts being asked by a parent to grant a conservatorship sometimes made a problematic assumption that young people who had chosen to participate in a newer religious group were, by so doing, demonstrating a lack of mental competence akin to that sometimes seen in elderly people suffering from dementia.

Such uses of the law were dealt a severe blow in the United States in 1976. In Katz v. Superior Court, the California Supreme Court overruled a lower-court decision allowing parents of several adult members of the Unification Church to apprehend the members by court order for purposes of deprogramming them. This case occurred in California, but it became persuasive precedent in other parts of the country, and the use of conservatorship laws for purposes of deprogramming waned. Efforts were made in a number of American states to change conservatorship laws to apply to young adults joining NRMs, but none of these efforts was ultimately successful, although some came close.

Brainwashing Claims in Legal Actions

Claims that participants in NRMs had been brainwashed surfaced early in the United States as a part of efforts to exert social control over NRMs. Such claims were initially considered almost prima facie evidence that a conservatorship was needed. While such claims ultimately failed in legal contests over conservatorship, they were found to be quite useful for a time in civil actions against unpopular religious groups by former members and their parents. While there is no sanctioned legal action that can be based on a claim of brainwashing, these claims were used to underpin a number of other traditional civil legal actions, such as fraud, deception, and intentional infliction of emotional distress.

For a number of years, judges and juries in the United States often accepted such claims and sometimes awarded large monetary damages. Eventually, legal claims based on brainwashing were disallowed, this time by decisions in federal courts. The major decision was Fishman v. United States (1990, N.D. California), a criminal case involving a former member of the Church of Scientology who was charged with mail fraud. He claimed an insanity defense and said he was brainwashed by Scientology into committing criminal acts. His defense was not allowed, on the grounds that brainwashing was not a concept generally accepted within relevant scientific disciplines. A federal civil case had also disallowed a claim of brainwashing two years earlier in a case involving a suit by a former practitioner of Transcendental Meditation (Kropinski v. World Plan Executive Council, D.C. Circuit, 1988). After these decisions, brainwashing-based actions became less prevalent in the United States.

Legal theories based on brainwashing were more successful as a defense in the United States when used, not by former NRM members, but by those who had kidnapped them for purposes of deprogramming and had then been sued for false imprisonment or even charged with criminal kidnapping. Deprogrammers would use a "necessity" or "choice of evils" defense, claiming that, because the NRM or "cult" member had been brainwashed and was under mind control, the deprogrammer had committed the lesser of two evils. Such defenses, which were usually allowed, permitted the defendant to introduce evidence concerning the beliefs and lifestyle of the NRM in question, something that was usually not permitted under the First Amendment of the United States Constitution. However, such cases have become increasingly rare, as incidents of deprogramming and, indeed, sentiments against NRMs have declined in recent years.

At the same time, legal claims based on brainwashing have been gaining credence outside the United States in a number of countries where NRMs are viewed by some as a major social problem. Such theories have become an important cultural export from the United States, where they first came to prominence during the decades-long battle against communism, but then were transformed for application against NRMs. Countries where the concept of brainwashing has achieved some legal currency include some in western Europe, in Catholic regions such as South America, and in countries that were affiliated with the former Soviet Union. Early in the twenty-first century, claims of brainwashing continued to justify hundreds of deprogrammings in Japan, especially of members of the Unification Church, sometimes by Protestant ministers. The term brainwashing has even surfaced in China, as part of efforts by the state to exert control over the spread of Falun Gong.

In some other countries claims of brainwashing have been used to undergird new legislation designed to make it harder for NRMs to secure new converts. In France, for example, new legislation was passed in 1990 making "mental manipulation" a crime. In Russia, a 1997 revision of a liberal new law concerning religions attempted to prevent NRMs from coming into the country. Often, as in Russia, such new laws have the backing of traditional churches.

Legal Concerns Deriving from the Presence of Children in NRMs

Another major arena of legal action against NRMs involved children. As the NRMs in Western countries matured, families were often formed, and children were born into the groups—a development that had significant "domesticating" effects on the NRMs. The presence of children also eventually led to two major, and sometimes related, types of legal problems. First, custody battles erupted when one member of a couple in the group decided to divorce the partner or leave the group with their children. A second problem arose when the state entered the picture to varying degrees, exerting control over how the children were cared for and schooled. Indeed, the state was often obligated to intervene if certain types of accusations were made, and sometimes graphic accusations of child abuse, including sexual abuse, were made in the heat of a custody battle.

Custody of children is always a major issue when couples divorce. The issue becomes even more salient when one member of a couple is of a different faith, particularly a member of a "high demand" religion that has strict expectations about how to rear children. Courts in most modern societies are supposed to make custody decisions based on the criterion of "best interest of the child," which is a very flexible guideline allowing much discretion on the part of the judge or other authorities of the state. Often custody decisions are made that favor the party who is not a member of an NRM or other controversial religious group. The court may exercise its judgment in a manner that illustrates the normative function of courts of making decisions that reflect the basic values of a society. The view of what is, and is not, an acceptable religion is often used to justify custody decisions by the courts.

When custody battles become rancorous, claims of various kinds of child abuse may surface, and these may be communicated via the media or directly to state authorities who may choose, or be obligated, to act on them. In many modern Western societies since the 1980s, a plethora of laws designed to protect children have been enacted. These laws have had the overall effect of increasingly redefining children as the property of the state, as opposed to being the property of their parents. These new laws have made it easier to attack NRMs for not treating children as the society expects. Four major areas of law come into play concerning some NRMs: schooling, corporal punishment, health care, and the possible sexual abuse of children.

Home schooling is legal in some Western countries if carried out with reasonable supervision of the state authorities to ensure that the child is being given at least a minimal education level. However, in some societies, such as France and Germany, home schooling is not legal to the degree it is in the United States and elsewhere. The very attempt to school children at home may be viewed by state authorities and the general public as a form of child abuse.

Some religious groups also practice corporal punishment with children, such as spanking them for misbehavior. Spanking can be, and has been, quickly translated by the media into "beating" the children, which is thought to be child abuse by most citizens and policymakers. Such claims have arisen in custody disputes involving NRMs in a number of countries. Some episodes of extreme physical punishment have occurred in a few religious groups, and those have been seized by the media, leaving an impression that all or most unconventional religious groups beat their children and, therefore, commit child abuse.

Health-care needs of NRM children are also of concern for authorities of the state. These concerns have been made more prominent in recent decades by controversies over the refusal of blood transfusions by Jehovah's Witnesses and the rejection of standard health care in favor of "spiritual healing" by Christian Scientists. The experience of these groups, and their treatment by the media and the courts, have established important precedents for the way that health concerns relating to children in NRMs are dealt with. A common stereotype regarding NRMs is that they do not use traditional medical care, but rely only on prayer or similar methods when children become ill. Although this stereotype is generally false, its prevalence has supported state intervention into the health and well-being of NRM children.

The most significant accusation that can be and has been raised against some NRMs is that of child sex abuse. Such accusations, which have become more prevalent in child-custody disputes involving ordinary members of society, change the entire dynamic of a divorce action. When they are made in a situation involving a controversial NRM, as they have been by some in the anticult movement or in child-custody disputes, then the impact is even greater and can lead to immediate state intervention in the NRM in a number of countries around the world. Large numbers of children of NRM members have been seized in raids by state authorities in Argentina, Australia, France, and the United States, and there have been interventions involving smaller numbers of children in other countries. In all of these instances, the children have eventually been returned to their parents and the charges dropped. In Australia, damages were even eventually paid to one group that had seen nearly 150 of its children seized in predawn raids to rescue them from what the media called a "sex cult."

Other Legal Issues Raised with NRMs

There are many other legal issues concerning NRMs that have been raised around the world. Communal NRMs have sometimes run afoul of zoning regulations that limit the number of unmarried adults who can live in a residence. Solicitation laws have been enforced in various countries in an attempt to stop NRMs from raising money. The Unification Church has won many such battles in the United States, but in other countries the legal precedents are not so helpful for NRMs. Even in the United States, the Hare Krishnas (members of the International Society for Krishna Consciousness) have found limits placed on their solicitation of funds in airports and other public settings. Laws requiring contribution to social security and health schemes have been applied to communal NRMs in some countries, as have minimum wage statutes, thereby undercutting some of the benefits of communal living. Immigration laws have been used to limit the ingress of members of some NRMs to various countries, including the United States and the former Soviet Union.

One of the most complicated legal situations involving an NRM may be that of the Bhagwan Shree Rajneesh group that settled in Antelope, Oregon, in the 1980s. The Rajneesh group bought up the entire town and controlled all that occurred there. Only members or invited guests could be present in the town. This had many ramifications, as the group ran the local schools and police force and was serving as the local government for the town. The state of Oregon, working closely with federal government agencies and the courts, managed to exert control over the situation after numerous legal battles. Oregon successfully claimed that to assist the town in any way, including sending state revenues to fund operation of the schools and law enforcement, would violate the Establishment Clause of the United States and Oregon constitutions. The Rajneesh group ceased operations in Oregon, although not without a violent backlash. For instance, some leaders of the group devised a plan to poison members of the general public by placing salmonella bacteria in salad bars in several restaurants in Oregon, causing several hundred people to become ill.

Use of Law by NRMs

NRMs have sometimes been able to use the legal system in their defense, especially in countries such as the United States, which has Constitutional protection for religious freedom. Many other Western countries have statutory or constitutional provisions that allow NRMs to take legal action against those who criticize them. This includes tax officials who might have exercised their judgment so as to preclude an NRM from claiming tax exemptions available to other religious organizations. The Church of Scientology has had some success in legal battles with tax officials and other governmental agencies in a number of countries, and thus has succeeded in securing for the organization some legal privileges otherwise unobtainable. A number of NRMs and other minority religions are attempting to use the European Court of Human Rights (ECHR) to deter the exercise of legal social control over them by the over forty-member Council of Europe, which includes a growing number of countries of the former Soviet Union. Early in the twenty-first century, the record of these legal efforts was decidedly mixed, as the ECHR preferred a posture of deferring to member countries in matters having to do with religion.

Some NRMs have launched major legal attacks on their detractors in the United States and other countries, and they have also attempted to make use of the ECHR when not dealt with in a manner that seems fair to leaders of the NRM. Scientology is perhaps best known for using legal action as a way to deter detractors and promote its organization. Other NRMs have also developed legal prowess, even if only out of the necessity of defending the organization or its leaders and members in court actions. This allocation of group resources toward legal defense occurred first in claims of brainwashing for damages by former members in civil actions. But, particularly with the advent of efforts by various governments to assume authority over children of group members, some groups, such as The Family (formerly known as the Children of God), have invested heavily in developing an adequate legal defense.

Some NRMs have also launched libel and defamation actions against their detractors, a tactic that is only occasionally successful, but which also serves as a deterrent. In Hungary the Hare Krishnas (ISKCON) won a major victory against a prominent religious leader who had published a brochure defaming the group. In Russia, however, a major defamation action failed against a prominent representative of the Russian Orthodox Church who was publishing extreme accusations against a number of NRMs and other minority faiths. This case was actually used by the Russian Orthodox Church and political authorities in the successful effort to gain approval for restrictive legislation that would limit the activities of NRMs in Russia.

Of course, there are limitations on NRM use of the courts. In societies such as China, where the courts are controlled to a considerable extent by the government, it is difficult for NRM members to defend themselves in court, much less to mount legal offenses such as has been done by some groups in Western societies.

Conclusions

In many societies, particularly those dominated by one particular traditional religious organization or by a political ideology such as communism, the exercise of legal rights by NRMs has been decidedly difficult. Indeed, NRMs usually lose in legal actions whatever the societal context, as the courts exercise their normative function and make decisions in line with the basic values of a given society. It is surprising when NRMs win in court as they have sometimes done in Western countries, and it demands explanation. NRMs have sometimes successfully defended themselves against legal attacks, and some have been able to launch their own legal battles that have occasionally had a positive outcome for the organization. In such cases, the religious group has gained some legitimacy, and perhaps at least the right to be left alone.

Bibliography

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James T. Richardson (2005)

Law and Religion: Law and New Religious Movements

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