Book Review - To Secure the Blessings of Liberty
This article is an electronic version of an article originally published in Cultic Studies Journal, 1986, Volume 3, Number 2, pages 251-257. Please keep in mind that the pagination of this electronic reprint differs from that of the bound volume. This fact could affect how you enter bibliographic information in papers that you may write.
Book Reviews - To Secure the Blessings of Liberty: American Constitutional Law and the New Religious Movements*
By William C. Shepherd. The Crossroad Publishing Company. New York-1985. 155 pages. Paperback. $9.95.
Reviewed by Herbert L. Rosedale, Fsq,
This is a volume of contradictions which presents an essentially one-sided view of the contentious legal issues involving the “new religious movements." Written by a recently deceased professor of religion at the University of Montana who spent a year at the Center for the Study of New Religious Movements at Berkeley, To Secure the Blessings of Liberty approaches the study of "new religions” as a conflict between the constitutional rights of individuals and .strongly held majoritarian values.” In doing this, Professor Shepherd not only comes down squarely behind the “new religions,” but in doing so acknowledges his indebtedness to such sources as psychiatrist Coleman and civil liberties lawyer Jeremiah Guanan, both of whom have staunchly defended “new religious” groups like Scientology and the Unification Church.
To begin, a portion of Blessings was clearly written long before the rest. In fact, a substantial part appears four years ago in the Journal of the American Academy of Religion and the last section was completed by the author’s widow.
An apparent example of this unfortunate timing appears in the discussion of the constitutional cases involving “new religions.” At one point the author cites and relies on a 1978 article to assert that no court has ever, after an evidentiary hearing, found that any religious organization has subjected its adherents to mind control, coercive persuasion, or brainwashing (p. 53). In a later chapter, however, while discussing the decision of the Minnesota Supreme Court in Peterson v. Sorlien (p. 106), the author criticizes the court, noting that in this case it found that the conduct of new religious groups may well have impaired the plaintiffs volitional capacity. The easy explanation of this inconsistency is that Peterson was decided after the 1978 article, and, undoubtedly, when the earlier chapters of this book were written, the Peterson decision was not available either to Professor Shepherd or to the author of the article on which he relies.
Such problems aside, far more vexatious are the philosophical contradictions I find in this book. The author begins by presenting excellent historical analyses of the First Amendment of the enactment and interpretation of Reconstruction era civil rights laws, and of the development of judicial construction of those laws which thrust the court into an activist role involved in protecting individual rights. It is clear that Professor Shepherd approves of this activism. By stark contrast, his analysis of recent cases involving “new religions” presents every adherent of a “new religion” involved in a court case as an individual who is being persecuted because he deviates from strongly held majority beliefs. In each of these cases the author vehemently champions a doctrine of judicial abstention, regardless of any claim that the individual rights of the adherent may have been violated by the group. Indeed, the structure of Blessings is such that the reader is continually led down a golden path of “closely reasoned” arguments only to find at the end that the phrasing of the initial question can have led to no other answer.
I do not think it necessary or desirable here to deal with the author's careful and well written historical analysis of federal civil rights legislation, or with his exposition of the intricate legal arguments culminating in the vindication of the applicability of federal legislation to individuals' claims that their constitutional rights have been violated. (Although I wonder what Professor Shepherd's response would have been to the historical arguments of the current states' rights movement, which run counter to his civil rights sentiments.) But the reader must be alerted that the author has not followed his own admonition to seek a balanced analysis of correct information (p. 42; my emphases) when dealing with the highly emotional and controversial area of “new religions.” I am distressed to find that what Professor Shepherd espouses and asserts is often neither balanced nor correct.
An example which will strike home to many readers is the assertion that the "Anti-cult contingent is highly organized and well funded” (p.42). Cult education and family support groups are in fact quite poor and not well organized. I also note with dismay that Professor Shepherd all too easily implies that “forcible and coercive deprogramming” is hardly different from counseling or communication, which may be considered, in effect deprogramming that is voluntarily sought. Although he drops the qualifying adjectives “coercive” and “forcible” when talking about the latter situation, he substitutes descriptions which have a similar import.
One is impressed similarly, and strikingly, when the author sets out to demolish Professor Richard Delgado's argument about deprogramming. Professor Shepherd first supports the concept that joining a group is an affirmative waiver of the claim that there has been deception or coercion in the initial conversion process. But then, the author disparages the very same argument when it is presented in a case like Peterson, or in legislation aimed to assist deprogrammers or facilitate the granting of conservatorships. Professor Shepherd is also critical of Douglas Aronin's model conservatorship law, which was carefully constructed to protect the rights of the subject, because Mr. Aronin is allegedly biased against new religious groups and, therefore, stacks the deck against them.
Indeed, the author's own analysis of judicial decisions included much passion and zeal. Let me elucidate an instance about which I have personal knowledge. Referring to a supposedly heinous example of violent deprogramming, Professor Shepherd cites “One notorious case where a $2 million suit was brought because the alleged victim was held incommunicado for fifteen days.” The author describes this alleged victim as a doctor, the graduate of a prestigious medical school. Well, the case was only notorious because the attorney for the plaintiff, a source cited with approbation in the book, issued a press release at the time that he filed his complaint Moreover, a complaint is a complaint, not an adjudication of fact, only an assertion of a claim. The “notorious” case was settled, and not a penny of damages- was paid to the plaintiff despite the $2 million claimed. (It might as well have been $200 million.) The victim was not held incommunicado for fifteen days, and the facts were such that, had the me gone forward, the plaintiff would most probably have lost it, but at very substantial cost to the defense. Similarly, Professor Shepherd reiterates the stylized and routine language in complaints dealing with deprogramming and its alleged violence as if these assertions were proven facts.
Again, Professor Shepherd does not clearly advise the reader of the procedural significance of the fact that when a legal challenge is made to the legal sufficiency of a complaint, all of the allegations in the complaint are taken as true, even though at a trial they may be disputed or disproved, and even though the witness asserting the alleged facts may not be believed by the court. Many of the cases described in this book's chapter on deprogramming do not deal with factual determinations made in such trial situations where, for example, the credibility of a witness can be assessed through cross examination. The cases cited deal, rather, with legal decisions made on motions challenging the legal sufficiency of complaints by defendants -- parents or deprogrammers, for example -- who did not have the financial resources to go through extended pretrial and motion practice, much less the expense of the trial itself. Because of such constraints, these defendants try to abbreviate the process, thus minimizing their legal fees, by challenging the proceedings solely on technical and legal grounds, rather then through pretrial discovery or during an actual trial. Undoubtedly, this course of action would not be advised or adopted if defendants had legal and financial resources equal to those of the plaintiff or his supporters. The result is that a complaint can be cited as if it were, ipso facto, true, when it may not be.
While Professor Shepherd sometimes does recognize this distinction by inserting a sentence indicating that the legal survival of a complaint was really only a success in stating a cause of action, the thrust of his overall argument tends to disguise such qualifications by immersing them in a massive exhortation to uphold the rights of new religious movements against “majoritarian prejudices.”
Another contradiction arises in the author's analysis of whether techniques of coercive persuasion deprive the subject of free choice. He first asserts that mind control issues are matters of fact and subject to proof (p. 33). But then he concludes, simplistically, that claims of mind control are negated by the existence of conflicting psychological views, and that in such instances conflicting expert testimony leaves a court powerless to determine the issue unfavorably to the "new religions.” Such a conclusion is absolutely unwarranted. In other litigated controversies involving expert opinion, the courts cannot and do not simply withdraw from making determinations because there is disagreement Indeed, it is the resolution of such disputes through the application of the fact-finding process that is the basis of adjudication.
I also take umbrage at the use of the paradigm of family structure to characterize conflicts with constitutional dimensions. One cannot view conflicts between an individual's constitutional rights and the claims made on behalf of the “new religious movements” simply as disputes between children and parents who are attempting to impose traditional values on their bright but wayward offspring. Cult victims are not hippies or flower children who are persecuted because they wear their hair long or shave their heads or dress in distinctive clothes. They are not downtrodden victims of majoritarian persecution or impoverished souls lacking the influence and ability to defend their rights without aid from some sensitive, benevolent group dedicated to the preservation of civil liberties. All too often, it is the “new religion,” under the guise of religious discipline, which initiates physical brutality or emotional abuse, not the parent.
The entire history of the First and Fourteenth Amendments belies the author's assertion that “constitutionally the happy slaves” rights are what must be protected even if, as a consequence, society must put up with a lot of spiritual poison” (p. 34). American society made a determination over a hundred years ago to reject such an argument when considering the abolition of slavery. It is absolutely irrelevant whether a sociologist or psychologist taking a poll finds many "happy slaves” clamoring for protection of their constitutional right continue in their condition. (Consider, in this regard, apartheid and religious bigotry, and whether these are the kinds of “spiritual poison" we ought to put up with if espoused by a “new religion.") Still less would one consider a Poll of slave-owners on the subject Indeed, the List time that such a doctrine of judicial abstention arose was in response to desegregation cases when, under the guise of individual and states' rights, the courts were urged to withdraw, and not to disturb domestic tranquility. Similar arguments are heard today about the applicability of the Bill of Rights to the several states.
These arguments were urged and rejected a generation ago in the attempt to preserve protected individual “libertarian" rights in the face of a challenge by “majoritarian social values” related to child factory labor. We all remember, if we are old enough, the pictures of small smiling children working in sweat shops. We also recall the establishment of social programs, the vindication of the rights of minorities, and the affirmation of women's rights in the face of "libertarian” claims that activist judges and “broad constructionists" who represented certain selected social policies were imposing their views and curtailing individual freedoms.
It serves no purpose to conclude simplistically that whenever a person asserts a religious motivation for behavior, but finds that the behavior is curbed, that society has done him wrong and that the First Amendment has been violated. Society is a compact among people; behavior is not, and cannot be viewed, as an uninhibited expression of individual desire. The impersonal effects of actions on other persons' rights must be considered. Religious behavior, according to Professor Shepherd, can only be curbed when there is a “dire emergency warranting its restriction” (p. 53).
While one may not quarrel with that position in the abstract, the fact is that even when presented with so dramatic a situation as Jonestown, the author equivocates. His conclusion is that perhaps (my emphasis) if the government knew for a certainty in advance what was going to happen at Jonestown it might have a right to intervene to prevent the slaughter. (It is in the face of such an analysis that one understands the analogy that “anti-cultists” draw between popular attitudes toward certain activities of some “new religions” and the equivocation and inactivity of many people in the face of totalitarian-led holocausts.) One wonders what the author's approach would be when evaluating alleged infringement of religiously motivated conduct when activist courts intervene to restrain and inhibit the abuse of women and children, or the corporal punishment meted out to minors without their consent, or the withholding of appropriate medical care. Are the courts also imposing in these cases strongly held majoritarian values at the expense of individual equality and liberty?
One reads this entire book without finding any discussion of the rights of individuals who have been stripped of volitional control without their informed consent. One looks in vain for any recognition of the need for redress when rights are violated by a coercive totalitarian group motivated by strong religious goals. One looks in vain for any recognition of the basic underlying rights of privacy, integrity, and freedom of thought which are judicially recognized as precedent to all other individual rights, and without which other individual rights have neither legal nor ethical meaning.
The book, although thoughtful, well written, and well considered when looking through the glass of historical perspective, changes radically when it deals with the “new religious movements.” Here, the author simply accepts uncritically the “horror stories” about the activities of deprogrammers who, in his view, are always crassly motivated and relentlessly seeking to take advantage of distraught parents. Similarly, the complaints of ex-members are always seen by Professor Shepherd as blasphemous bigotry. And yet the author accepts the view that all current members of “new religious movements” speak freely, without rancor, prejudice, bias, or fear, and that their hired advocates and experts are entitled to the presumption that they are acting evenhandedly and with professional objectivity, a presumption not extended to those who take the contrary view.
It has been very difficult to find unbiased, objective material in the area of “new religions,” and this continues to be so, especially when those who defend the .new religions' seek to shelve the First Amendment and discourage views critical of the "new religions” by discouraging dialogue, discussion, and tolerance of widely diverse opinions. The publication of this book by the American Academy of Religion, with funding from the National Endowment for the Humanities and additional financial contributions from the Crossroads Publishing Company and the Society for the Scientific Study of Religion, makes me despair of an adequate opportunity to rebut it. Yet I believe that discussion and disagreement will continue. It is only through a commitment to this process, through the dissemination of contrary information and the maintenance of a critical perspective, that more evenhanded views will emerge.
The dichotomy in Professor Shepherd's approach is not unique to him. Many of us have run across it in dealing with professional “libertarians.” Indeed, the same bias was recently pointed out by a reviewer of Professor Laurence Tribe's latest work on constitutional law. To be sure, contradictions within analyses of broad constitutional issues are not in and of themselves suspect They may represent well-thought-out pragmatic approaches to difficult questions. But what is perplexing in Professor Shepherd’s work is the apparently simplistic thought and a refusal to recognize the inconsistencies and contradictions that result. One reviewer champions To Secure the Blessings of liberty as a reasoned exposition of the conflict between individual liberties and repressive judicial restraint. Yet after reading the book, one is not persuaded that a diminishing number of deprogramming cases can represent the tremendous threat to religious freedom that he sees. True, Professor Shepherd refers briefly to other kinds of litigation involving the “new religions," but seems to place them all, whatever the distinctions among them, in that all-embracing category which reflects a conflict between commitment to freedom of religion and the prejudiced imposition of ever-present strongly held majoritarian values (like life, liberty, and the pursuit of happiness).
One heard this appeal to freedom again in the aftermath of the Reverend Moon's conviction and jailing for conspiracy and tax evasion. Nevertheless, there is hope in the courts. In cases decided by the Supreme Court since the publication of To Secure the Blessings, the Court rejected the Alamo Foundation's attempt to insulate itself from such a strongly held majoritarian value as the applicability of the minimum wage legislation; the Court indicated that the doctrine of state accommodation to religious beliefs cannot be so expanded as to insulate all religiously motivated conduct from judicial scrutiny.
The preservation of individual rights, and our commitment to their preservation, is too important to sacrifice in a campaign orchestrated on behalf of a narrow interest which invokes totalistic religious commitments as above the rule of law and respect for the rights of others. Before concluding that an individual must be free to act without restriction -- in order to preserve our commitment to liberty, and regardless of the resultant conflict with society's interest -- one must carefully examine the nature of the conduct for which protection is claimed and its effect on the rights of others. Certainly, the scales of justice should not be cast aside, especially without first removing the lady's blindfold.
* This review first appeared in the Cult Observer (a periodical published by the American Family Foundation, publishers of the Cultic Studies Journal), Vol 3, Nos. 1 & 2, January/February 1986, pp. 24-27
1. R. Delgado (1977), Religious totalism: Gentle and ungentle persuasion under the First Amendment. Southern California Law Review, 51, 1-98.
2. D. Aronin (1982), Cults, deprogramming, and guardianship: A model legislative proposal. Columbia Journal of Law and Social Problems, 17, 163- 286.
Herbert L. Rosedale, a partner in the New York City law firm of Parker, Chapin, Flattau, and Klimpl, has been observing the activities of cultic groups for over a decade. He is a member of the Advisory Board of the American Family Foundation (which publishes the Cultic Studies Journal) and has provided pro bono consultation to individuals and families harmed by cult involvements.
Cultic Studies Journal, Vol. 3, No. 2, 1986