Cults and the Law

Religion and American Law

An Encyclopedia

Edited by Paul Finkelman, 2000

Cults and the Law

Michael Belknap, California Western School of Law, Cathy Shipe, Esq. San Diego


Cults and the Law

Religious cults pose many difficult problems for the legal system, often involving the con­stitutionality of government efforts to regulate proselytizing and recruiting by such religious groups and to control the conduct of their members. But cults have also generated litiga­tion that raises difficult issues of tax, tort, and criminal law. Sometimes they have gone to court to defend themselves against official per­secution or to challenge the tactics used by parents and “deprogrammers” to “rescue” re­cruits from their organizations. In other cases cults have been the aggressors, using litiga­tion as a weapon to attack those they consider their enemies.

Not a Legal Concept

Whether modern cults are, as they often claim, oppressed “new religious movements” or simply effective means by which charis­matic leaders accrue power and wealth, there is no doubt that they have met vigorous resis­tance when they attempted to claim for them­selves the same rights as more traditional religions. The Holy Spirit Association for the Unification of World Christianity (the Unification Church), led by Rev. Sun Myung Moon, offers a case in point. This organiza­tion has fought in court over such issues as whether fecets of its aggressive political and economic agendas are bona fide religious practices and whether its foreign members can legitimately seek permanent residence in the United States in order to continue their prose­lytizing. Victimized by an allegedly discrimi­natory Minnesota statute that subjected only religious groups such as theirs to certain re­porting requirements that received more than 50 percent of their contributions from non- members, the “Moonies” had to go to the Supreme Court to get that law struck down as a violation of the Establishment Clause in Larson v. Valente (1981).

The legal problems and approach to liti­gation of the Unification Chur^ are not nec­essarily representative. Generalizing about cults and the law is extremely difficult, in large part because “cult” is not a legal con­cept. Indeed, it is not even a word with a clear definition. The term has often been employed pejoratively by members of mainstream reli­gions to stigmatize new groups or ones that merely hold views strikingly different from their own. Thus one treatise on cult law de­votes much of its attention to Christian Science. Sociologists have tried to achieve greater precision by identifying common fea­tures of groups that give rise to similar social problems, but their efforts have yielded a plethora of definitions, none of them particu­larly helpful to lawyers and judges. For those whose concern is the law, the term “cult” is most usefully applied to organizations that exhibit certain distinctive and problematic qualities giving rise to legal questions not nor­mally associated with mainstream religious groups. These include (1) the swearing of total allegiance to an all-powerful leader; (2) the leadership’s discouraging or forbidding of ra­tional thought (3) the use of deceptive re­cruitment techniques; and (4) the tendency of the group to discourage independence and to goad adherents into submission, thus produc­ing a state of total dependence on the organi­zation. There is, however; no legal definition of the word “cult.”

Nor does the law distinguish between cults and legitimate religious groups. Indeed, any attempt to do so would violate the First Amendment. In United States v. Ballard (1944) the Supreme Court took the position that the First Amendment’s religious clauses forbid government from inquiring into the truth or falsiity of religous beliefs. At most a court may seek to determine whether some­one’s views are sincerely held—and then prob­ably only if that individual is seeking some benefit from the government, such as a tax ex­emption or classification as a conscientious objeCTor. Whether or not a cult’s creed is ac­ceptable, logical, consistent, or even compre­hensible, it enjoys the protection of the Free Exercise Clause. Indeed, government may not even distinguish between groups that believe in a supreme being and those that do not. As long as an organization’s dogma occupies in the life of its adherents a place parallel to that filled by God in more conventional religions— the Supreme Court has intimated—its mem­bers’ beliefs and practices are protected by the First Amendment.

Because that amendment prohibits the federal government from Hicringitithing be­tween legitimate and ille^timate religions, the Internal Revenue Service (IRS) has little choice but to grant even unpopular cults lackit^ any commitment to traditional spiritual values the benefit of the income tax exemption Congress has conferred on religious groups. Under at least one provision of the Internal Revenue Code, “any organization claiming to be a church” is a church. The IRS has identified fourteen criteria to help determine whether an organization qualifies as a church, one of them being whether it has a ‘distinct religious history.” The courts, however have applied these guidelines only haphazardly, and the IRS, bound by the code itself, has avoided evaluating the legitimacy of organizations claiming to be religious in nature.

Instead the IRS has concentrated on de­termining whether groups that seek tax- exempt status satisfy the criteria set forth in section 501(c)(3) of the Internal Revenue Code. That provision requires (1) that an or­ganization operate exclusively for religious purposes, (2) that no part of its revenue inure to the benefit of any private individual, (3) that no substantial portion of its activities involve the use of propaganda or attempts to influence legislation, and (4) that it not par­ticipate in any political campaign. In addi­tion, courts have imposed a requirement that a group claiming to be an exempt religious organization serve a valid public purpose and confer a public benefit. Tlie IRS revoked the tax-exempt status of the Church by Mail and the Church of Scientology because they failed to comply with the requirements of section 501(c)(3); in 1993, however; it later restored the Scientologists’ status. In addi­tion, under legislation enacted by Congress in 1976, religious groups that engage in com­mercial enterprises, such as manufacturing, must pay taxes on their “unrelated business income.”

Cults and Laws of General Applicability

Cults enjoy even less immunity from criminal statutes than from the tax laws. The Free Exercise Clause forbids punishing anyone for reli^ous beliefs. The Supreme Court has held, however; that the clause does not relieve a person of the obligation to comply with valid and neutral laws of general applicability that regulate or prohibit conduct in which the reli­gion requires the person to engage or that com­mands the person to do something which the religion forbids. Thus, in Employment Division, Department of Human Resources u Smith (1990), the Supreme Coun affirmed the right of a state to enforce its drug laws against members of a Native American church who used peyote in religious ceremonies. It adopted a position already staked out by lower courts. In United States v. Kuch (D.C., 1968), for ex­ample, the U.S. District Court for the District of Columbia had held that it was not a vio­lation of the Free Exercise Clause to punish a self-styled “ordained minister of the Neo-American Church” for possessing and dis­tributing LSD and marijuana—even though members of that “church” professed to con­sider psychedelic substances the “true Host” and to believe that it was “the Religious duty of all members” to ingest the substances regu­larly under the guidance of a religious leader called a “Boo Hoo.” In Randall v. Wyrick (Mo., 1977) a federal district court in Missouri upheld the drug-possession conviction of the leader of the Aquarian Brotherhood Church, despite his insistence that the use of hashish, marijuana, and cocaine was considered sacra­ment by that religion. The court took the posi­tion that freedom of belief was entirely protected but that freedom of religious actions was limited by the state’s interest in protecting the public from the dangers posed by drugs. Although government can punish drug use and other dangerous conduct that some claim is re­quired by their religion, prohibiting conduct because it is religious does—at least in the ab­sence of a compelling governmental interest— violate the Free Exercise Clause. For that reason, in Church of Lukumi Babalu Aye, Inc. and Ernesto Pichardo V. Gty of Hialeah (199i) the Supreme Court struck down municipal or­dinances banning the ritual sacrifice of animals practiced by followers of the Santeria faith. As long as government does not engage in this sort of targeting of religion and only legislates in general terms, however it may constitutionally punish religiously motivated behavior; whether this be the snake handling practiced by some southern sects, such as the Holiness Church, or the polygamy once expected of Mormons.

Cults and First Amendment Protections

Although the First Amendment does not shield criminal conduct, it does protea the distribu­tion of literature by cultists and probably their efforts to recruit and indoctrinate new mem­bers. In Lovell v. Griffin (1938) the Supreme Court held that a city had violated the amend­ment’s guarantees of freedom of expression by requiring a Jehovah’s Witness who wanted to hand out religious material to obtain permisson from an official, who had complete dis­cretion about whether to grant or withhold the required authorization. In Murdoch v. Pennsylvania (1943) the Court held unconstitutional the punishment of Jehovah’s Witnesses for selling religious books without first paying a municipal license tax. Prince u Massachusetts (1944) sanctions the application of child labor laws to prevent minors from hawking relgious literature, and Heffnn v. International Society for Krishna Consciousness (1981) holds that government may impose reasonable time, place, and manner restrictions on literature dis­tribution and the solicitation of funds by reli­gious groups when these activities take place in areas that have been opened up for the ex­change of ideas, such as state has grounds. Such restrictions may not, however; discriminate against some views and in favor of others. In another Hare Krishna case, the Court de­clared that it was permissible to forbid the repetitive solicitation of money within airport terminals. Lee v. International Society for Krishna Consciousness, Inc. (1992) also held, however, that the Constitution protects both the coUecdoa of money on public sidewalks outside airport terminals and the distribution of literature within them. In Larson u. Valente (1981) the Supreme Court took the position that a state law which imposed registration and reporting requirements on some religious groups that solicited money from nonmembers but not on others violated the Establishment Gause.

It is doubtful that the justices would tol­erate much interference with cults’ recruiting and indoctrination. Beginning with Cantwell V. Connecticut (1940) the Court invalidated a number of statutes (hat obstructed the dis­semination of religious views on the ground (hat these laws interfered with freedom of ex­pression. Groups commonly identified as cults often go beyond merely preaching their message to potential converts, however; they often engage in an extreme form of indoctri­nation which critics view as thought manipu­lation and compare to the “brainwashing” that the Chinese practiced on Americas pris­oners during the Korean War. Unlike the evangelism of conventional churches, con­tends law professor Richard Delgado, cult re­cruiting is deceptive; potential members never give informed consent to affiliation with the organization, because they are not provided with complete information about the group until their will is no longer free. The decep­tion to which cults resort justifies government intervention to protect the targets of their re­cruiting efforts, Delgado maintains. Such in­tervention would not violate the Free Exercise Clause, he insists, because that con­stitutional provision was designed to protect self-determination in religious matters and because the use of deception and coercion to impart belief is the antithesis of self-determination. Although Delgado is the lead­ing legal expert on cults—and many people find his argument persuasive—there is little case authority to support his position.

Cults and Other Legal Questions

There is a similar shortage of judicial opinions about other legal questions enkindled by cult practices, and especially about issues related to deprogramming. Parents, convinced that their children have been “brainwashedinto joining deviant religious groups, have increas­ingly resorted to legal and extralegal means to wrest their offspring from the control of such organizations so that they can be ‘depro­grammed.” Generally carried out by profes­sional deprogrammers (or “exit counselors”), the goal of that process is to restore freedom of thought; once this has been accomplished, it is assumed, the youthful recruit will no longer wish to be affiliated with a cult.

Because deprogramming is practiced on a person who is at least initially an unwilling participant, the first step is to obtain physical control of the subject. The legal way to ac­complish this is by securing a conservatorship order from a court. In some states a relative may be able to obtain one of these during an ex parte proceeding in which the cult member does not even participate. If the deprogram­ming works, by the time a full hearing is held both parties are in complete agreement, and there is nothing to litigate. This procedure smacks of judicially sanctioned kidnapping, and both a state court of appeals in Katz v. Superior Court (Calif., 1977) and a federal court of appeals in Taylor v. Cilmartin (10th Cu. 1982) have ruled against the use of state conservatorship laws for deprogramming pur­poses. But those are narrow decisions which focus on the language of the particular statutes In question and fall to address the fundamental issues posed by this approach (o deprogramming.

Rather than seeking conservatorship, some parents resort to extralegal methods. The cult member is coaxed, tricked, or physi­cally coerced into leaving the group and going with a deprogrammer to an isolated location where he or she Is confined while deprogram­ming is carried out. Those who resort to this method often commit both the crime of kid­napping and the tort of false imprisonment. Yet prosecutors have proved reluctant to file charges in such cases, and ^en they do, pub­lic sympathy for the parents has frequently made it impossible to persuade grand juries to indict or trial juries to convict. Tort suits are also rate. If the deprogramming works, the former cult member does not want to litigate. Unsuccessfully deprogrammed cult members have sued for both false imprisonment and the intentional infliction of emotional distress, but judges sympathetic to parents and deprogrammers have often dismissed such actions. Even when successful, suits of this type have yielded only modest damage awards, victims of de-programming have also sued under two fed­eral civil rights statutes, 42 U.S.C., sections 1983 and 1985{3). There are, however seri­ous doubts about whether either of these laws can constitutionally be applied to depro­gramming, and such actions have also proved unsuccessful.

Former members have enjoyed greater success when suing the cult to which they once belonged. Some of these cases have re­sulted in the award of substantial damages. Yet the degree to which cult “brainwashing” is actionable is a question the courts have not fully resolved. Generally, where indoctrina­tion is preceded by deceit regarding the nature of the organization or by other fraud, the vic­tim may sue in tort because of the lack of in­formed consent. On the other hand, in Weiss u. Patrick (D.R.I. 1978} and Ward v. Conner (4th Cin 1981) federal courts took the posi­tion that if someone’s association with a cult is knowing and voluntary at the outset, the group will not be liable for damages because of the means it subsequently employs to pro­cure the person’s loyalty.

Besides having to establish that one has a legal claim, a former member who sues a cult faces serious constitutional obstacles. If the complaint is based on the defendant’s pro­tected religous activity, it will fail. In Paul v. Watchtower Bible and Tract Society (9th Cin 1987), for example, a woman sued for defamation, fraud, and outrageous conduct after being subjected to ‘shunning” (a proce­dure under which loyal Jehovah’s Witnesses are instructed to ignore former members of that organization). The federal court which de­cided the case held that shunning is protected by the First Amendment and that requiring the church to pay damages would “restist the Jehovah’s Witnesses’ free exercise of religion.” On the other hand, a cult cannot avoid liabil­ity merely by claiming that its activity is religous in nature, and thus some courts have up­held damages based on harassment of former members.

Suits involving cults often raise difficult legal issues. So do governmental actions de­signed to control cult conduct. Some of the ac­tivities of deviant religious groups—such as the stockpiling of military weapons by the Church Universal and Triumphant and the Branch Davidians—are extremely dangerous. Other cult behavior—such as the aggressive panhandling in which Hare Krishnas engage— is merely annoying to persons who do not share their views. Tlie proselytizii^ of Jehovah’s ^imesses is as clearly protected by the First Amendment as is that of Baptists, but the recruiting and indoctrination techniques utilized by some cults raise legitimate con­cerns that those of mainstream religious groups do not. On the other hand, so does de­programming, which, however nobly moti­vated, is often accomplished through methods that are illegal. This is an area of the law where even a definition of the most basic con­cept is elusive and where there are few easy answers and many hard questions.

Michal Belknap Cathy Shipe


Aronin, Douglas, ‘Cults, Deprogramming, and Guardianship: A Model Legislative Proposal,” 17 Columbia Journal of Law and Social Problems 163-286 (1982). Bacus, Andrew P., “The Adjudication of Religious Beliefs in Section 1985(3) Deprogramming Litigation,” 11 Oklahoma City University Law Review 413-436(1986).

Blum, Andrew. “Church’s Litany of Lawyers,” National Law Journal, 1, 36-38 Oune 14,1993).

Broadus, Joseph E., “Use of the ‘Choice of Evils’ Defense in Religious Deprogramming Cases Offends Free Exercise WhOe Ignorii^ the Right to Be Free from Compelled Treatment,” 1 George Mason University Civil Rights Law Journal 171-205 (1990).

Delgado, Richard, “Cults and Conversion: The Case for Informed Consent,” 16 Georgia Law Review 533-574 (1982). Heins, Marjorie, “‘Other People’s Faiths’: The Scientology Litigation and the



Jusdciabilicy of Religious Fraud,” 9 Hastings Constitutional Law Quarterly 153-197(1981).

Moore, Joey Petei^ “Piercing the Religious Veil of the So-CaUed Cults,” 7 Pepperdine Law Review 685-710 (1980).

Moiken, Paul J., “Church Discipline and Civil Tort Claims: Should Ecclesiastical Tribunals Be Immune?” 28 Idaho Law Review 93-16S (1991-1992).

“Note: Cults, Deprogrammers, and the Necessity Defense,” 80 Michigan Law Rewew 271-311 (1981).

Rubenstein, I. H. A Treatise on the Law on Cults, 2nd ed. (Chicago: Ordain, 1981).

Rudin, Marcia R., “The Cult Phenomenon: Fad or Fact?” 9 New York Review of Law and Social Change 17-32 (1980-1981).

ShalleA Weody Gerzog, “Churches aad Their Enviable Tax Status,” 51 University of Pittsburgh Law Review 345-364 (1990).

Whalen, Charles M., “‘Church’ in the

Internal Revenue Code: The Definitional Problems,” 45 Fordham Law Review 885-928 (1977).

“Who Represents the Church?” National Law Journal 36 (June 14,1993).

Cases Qted

Cantwell v. Connecticut, 310 U.S. 296 (1940).

Church of Lukumi Babalu Aye, Inc. and Ernesto Pichardo v. City ofHialeah, 508 U.S. 520 (1993).

Employment Division, Department of

Human Resources v. Smith, 494 U.S. 872 (1990).

Heffron w International Society for Krishna Consciousness, 452 U.S. 640 (1981).

Katz V. Superior Court, 73 Cal. App. 3d 952, 141 Cal. RptL 234 (1977).

Larsen p. Valente, 456 U.S. 228 (1982).

Lee V. International Society for Krishna Consciousness, Inc., SOS U.S. 830 (1992).

Lovett u Griffin, 303 U.S. 444 (1938).

Murdoch v. Pennsylvania, 319 U.S. 105 (1943).

Paul V. Watchtower Bible and Tract Society, 819 R 2d 875 (9th Or. 1987).

Prince u Massachusetts, 321 U.S. 158 (1944).

Randall v. Wyrick, 441 F. Supp. 312 (W.D. Mo. 1977).

Taylor u Gilmartin, 686 F. 2d 1346 (10th Gr.

1982). cert, denied, 459 U.S. 147 (1983). United States v. Kuch, 288 F. Supp. 439

(D.D.C. 1968).

United States v. Ballard, 322 U.S. 78 (1944). Ward v. Conner, 657 F. 2d 45 {4th Cir. 1981). Weiss V. Patrick, 453 F. Supp. 717 (D.R. I.