EQUAL PROTECTION FOR UNPOPULAR SECTS


LEO PFEFFER

This Colloquium is entitled “Alternative Religions” but that tenn has not
been defined. I assume, and this paper is based upon that assumption. that
“alternative religions” are associations that are popularly called cults. Cult,
however, is not a legal term, and for a definition we therefore must look to
other disciplines.
In their introduction to Religious Movements in Contemporary America. 1
sociologists Zaretsky and Leone suggest twenty-six indicia of cultism, including
the following: “Most of the churches are offshoots of nineteenth-century
American Protestantism. Some are imported religions and all of these are generically
related to groups brought into the United States during the nineteenth
century.” 2 “Many of the groups have developed from each other through
doctrinal and social schisms.” 3 “Within recent history these groups have
faced persecution from society and attempted to resolve their problems in
court.” 4 Other telltale indicia are that the groups are organized around
charismatic individuals and that they often have rigid standards of membership
and a clear set of rules which, if violated, lead to expulsion. They claim not to
be just another competing religion and feel that they alone have constant contact
with the Divine. 5
These claims and doctrines, however ,are hardly restricted to cults. They
are much the same as those of established and respected faiths. Christianity
and Islam developed from the Hebrew religion through “doctrinal and social
schisms. ” And did not the Hebrews and the Christians assert that only through
their respective priests could there be contact with the Divine?
Other sociologists have their own definitions of cults. Indeed, some avoid
that term. Zaretsky and Leone speak rather of “marginal churches”; G other
sociologists, anthropologists, social psychologists, and, of course, religionists,
have their own definitions of the term “cults.” The noncommitted lay observer
might, perhaps somewhat flippantly, suggest his own definition of cult:
If you believe in it, it is a religion or perhaps the religion; and if you do not
1. RELIGIOUS MOVEMENTS IN CONTEMPORARY AMERICA (1. Znrctsky & M. Leone
eds. 1974).
2. Id. at xxiii.
3.Id.
4. Id. at xxiv.
5. Id. at xxiii·xxx.
6.Id.
9
10 REVIEW OF LA W AND SOCIAL CHANGE [Vol. IX:9
care one way or another about it, it is a sect; but if you fear and hate it, it is a
cult. Whatever the terminology may be in other disciplines, in law, I suggest,
a cult is a religion for the purposes not only of the first amendment’s ban on
laws respecting an establishment or prohibiting the free exercise of religion, 7
but also of the Constitution’s prohibition on religious tests for public office. 8
In reality, every new faith group challenging existing faiths is condemned
and fought by the established faiths. Hebrews, Christians, Protestants, Quakers, Mormons, Jehovah’s Witnesses, Black Muslims, Hare Krishnas, the Unification
Church, the Church of Scientology, Worldwide Church of God, and
others, have all experienced such resistance. In most cases, cults rise, shine,
and disappear.!J A few survive, and in due time become accepted as good standing
members of the family of faiths. Thereafter they, too, often join in
seeking to suppress new cultic challengers.
In 1906, 1916, 1926, and 1936, the United States Census Bureau under~
took censuses of religious bodies,lO but the practice was thereafter discontinued.
An attempt to revive it (in large part at the urging of demographers and
religious bodies) was made in 1960, but met with strong opposition from libertarians,
with the result that the idea was dropped and has not been tried
again. 11 The 1936 census (the last that we have) indicated that some 240
separate religious groups existed in the United States. 12 We have no way of
knowing for sure whether the number has increased or decreased since that
time, but it is a fair assumption that the number of sects or cults active in the
United States today is in the many hundreds.
The reason for this multiplicity of sects or cults is to be found in the
American tradition of tolerance in respect to religious differences. From time
to time the number of far-out sects seems to surge. While most Americans
accept this calmly and perhaps with some amusement, occasionally this surge
brings fear to many parents, often parents who maintain few if any ties with
their own nominal religion. Politically ambitious prosecutors sometimes take
this as an opportunity to make hay, and we have instances of prosecutorial
action such as those now experienced by the Unification Church, the World~
wide Church of God, and the Scientologists.
It has long been recognized that multiplicity of sects is an essential ingredient of religious freedom. Voltaire said, “If there were one religion in England,
its despotism would be terrible; if there were only two, they would destroy
each other; but there are thirty, and therefore they live in peace and
7. U.S. CaNST. amend. I.
8. U.S. CaNsT. art. VI, cl. 3.
9. A prominent example was the I Am movement, considered by the Supreme Court in
United States v. Ballard, 322 U.S. 78 (1944).
10. 3 A.P. STOKES, CHURCH AND STATE IN THE UNITED STATES 611 (1950).
11. C. FOSTER, A QUESTION ON RELIGION (1961); L. Pfeffer, Is It Ihe Government’S
Business?, 74 CHRISTIAN CENTURY 1281 (1957).
12. See STOKES, supra note 10.
1980-1981] EQUAL PROTECTION
happiness.” 13 To this Madison added, “Security for civil rights must be the
same as that for religious rights; it consists in the one case in the multiplicity
of interests and in the other in the multiplicity of sects.” 14 Madison, it
should be remembered. was the principal draftsman of the Bill of Rights.
My view in respect to the subject of this conference can be simply put.
The purpose of the first amendment’s guarantee of freedom of religion was and
is the protection of unpopular creeds and faiths. It needs no constitution to
assure security for the Episcopalians, Methodists, Presbyterians. or other
well-established and long-accepted religions. The heart of the first amendment
would be mortally wounded if the religions we now call cults were excluded
from the zone of its protection because of their disfavor in the eyes of government
officials or of the majority of Americans.
Nor, in my opinion, is the free exercise clause the sole protection accorded
by the first amendment to cults. The establishment clause of the first
amendment likewise protects them against punitive action by government officials
hostile to their religious beliefs and practices, and it likewise forbids
preferential treatment of favored faiths.
Under present interpretations of the first amendment free exercise clause,
government, state or federal, can restrict the expression or exercise of religion
only by showing (1) that there is a countervailing governmental interest of
such importance as to be deemed compelling, and (2) that there is no alternative
for the implementation of this interest other than a limitation on the free
exercise of religion. Thus, while the Supreme Court has upheld compulsory
smallpox vaccinations over a claim of religious opposition,’::; in Wisconsin v.
Yoder,16 it has held that the free exercise clause gives parents acting on religious
grounds the right to remove their children from schools at an age earlier
than that sanctioned by the truancy laws, and in Sherbert v. Verner,17 it has
held that a state may not constitutionally deny unemployment compensation to
a person who refuses to accept employment which would require him to work
on his sabbath.
In interpreting the religion clauses of the first amendment, the courts have
accorded a considerably broader mantle of protection to religion and churches
in the exercise of their mission than that accorded to individuals and bodies,
not only in the commercial or business area, but also in respect to first
amendment rights as applied to nonreligious bodies. It is doubtful that the
same results would have been reached in Yoder and Sherbert if the objections
were based respectively on dissatisfaction with school teaching or with the
capitalist system of workers and bosses.
13. F. RUFFINI, RELIGIOUS LIBERTY 199 (1912).
14. Hunt, James Madisoln and Religious Liberty, 1 AMER. HISTORICAL ASS’N ANN’l
REPT. 165, 170 (1901).
15. Jacobson v. Massachusetts. 197 U.S. 11 (1905).
16. 406 U.S. 205 (1972).
17. 374 U.S. 398 (1963).
12 REVIEW OF LAW AND SOCIAL CHANGE [Vol. lX:9
The Supreme Court, for example, has forbidden governmental and even
judicial intervention into the internal affairs of churches to a far greater extent
than it has in nonreligious associations.1s To take another example, the Supreme
Court held in NLRB v. Catholic Bishop of Chicago, 19 that government
may regulate labor relations in secular schools, public or private, but not in
church-operated schools. This is so even though government may regulate
labor relations where the press is concerned, notwithstanding a claim that freedom
of the press would be infringed thereby. 20 Courts and legal scholars
have often referred· to the “preferred position” of first amendment rights in
our constitutional scheme of things and of these rights, freedom of religion is,
I suggest, the one most preferred.
Illustrative of the broad license accorded to persons to act in furtherance
of their religious beliefs is the Supreme Court’s decision in United States v.
Ballard. 21 That case involved a prosecution for mail fraud against several
individuals who had organized the “I Am” movement. Specifically, the defendants
were charged with falsely representing their divine mission and divine
powers to effect cures of physical ailments. In holding that the defendants
could not constitutionally be prosecuted, the Supreme Court said:
[W]e do not agree that the truth or verity of respondents’ religious
doctrines or beliefs should have been submitted to the jury. Whatever
this particular indictment might require, the First Amendment precludes
such a course, as the United States seems to concede. “The
law knows no heresy, and is committed to the support of no dogma,
the establishment of no sect. ” . . . The First Amendment has a dual
aspect. It not only “forestalls compulsion by law of the acceptance of
any creed or the practice of any form of worship” but also
“safeguards the free exercise of the chosen form of religion.” …
The Fathers of the Constitution were not unaware of the varied and
extreme views of religious sects, of the violence of disagreement
among them, and of the lack of anyone religious creed on which all
men would agree. They fashioned a charter of government which envisaged
the widest possible toleration of conflicting views. Man’s relation
to his God was made no concern of the state. He was granted
the right to worship as he pleased and to answer to no man for the
verity of his religious views. The religious views espoused by respondents
might seem incredible, if not preposterous, to most people.
But if those doctrines are subject to trial before a jury charged with
18. Compare Kedroff v. St. Nicholas Cathedral, 344 U.S. 94 (1952) and Presbyterian
Church v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440 (1969) willi
Steele v. Louisville and Nashville R.R. Co., 323 U.S. 192 (1944); and Smith v. Allwright. 321
U.S. 649 (1944).
19. 440 U.S. 490 (1979); see also Caulfield v. Hirsch, 95 L.R.R.M.3164 (E.D. Pa. 1977),
cert. denied, 436 U.S. 957 (1978).
20. Associated Press v. NLRB, 301 U.S. 103 (1937).
21. 322 U.S. 78 (1944).
1980-1981] EQUAL PROTECTION
finding their truth or falsity, then the same can be done with the
religious beliefs of any sect. When the triers of fact undertake that
task, they enter a forbidden domain. The First Amendment does not
select anyone group or anyone type of religion for preferred treatment.
22
13
Of particular significance to the subject of this conference is the Supreme
Court’s decision in United States v. Seeger. 23 That case construed a provision
in the Universal Military Training and Service Act limiting exemption from
military service to persons possessing a belief in a “Supreme Being.” Seeger,
in applying for exemption, admitted his “skepticism or disbelief in the existence
of God,” but avowed a “belief in and devotion to goodness and virtue
for their own sakes, and a religious faith in a purely ethical creed,” and cited
Plato, Aristotle, and Spinoza in support of such a belief.:.!-l Jakobson, another
applicant, stated a belief in Godness “horizontally •… through Mankind and
the World,” rather than “vertically, towards Godness directly.” 25 A third
applicant, Peter, avowed a commitment to religion which he defined as “the
supreme expression of human nature; . . . man thinking his highest. feeling his
deepest, and living his best.” 26
The Court held that all three applicants were entitled to exemption since
all had the requisite “religious training and belief” in relation to a “Supreme
Being.” 27 By using the term “Supreme Being” rather than “God.” the
Court said, Congress intended something much broader than the traditional
person-deity. As for the term “religious belief,” the Court said that such a
belief is one that “is sincere and meaningful [and] occupies a place in the life
of its possessor parallel to that filled by the orthodox belief in God of one who
clearly qualifies for the exemption.” 28
It is true that both Seeger and Welsh v. United States 29 technically were
decided as questions of statutory interpretation rather than as issues under the
free exercise clause. It is clear, nevertheless, that the Court resorted to this
interpretation in order to avoid declaring the challenged statute unconstitutional.
This was candidly admitted by Justice Douglas, concurring in Seeger.
who noted that “we have gone to extremes to construe an act of Congress to
save it from demise on constitutional grounds.” 30 Moreover, this is equally
22. [d. at 86-87 (citations omitted).
23. 380 U.S. 163 (1965).
24. [d. at 166.
25. [d. at 168.
26. [d. at 169.
21. [d. at 165-66.
28. [d. at 166. See also Welsh v. United States, 398 U.S. 333 (1910), involving an applicant
for exemption who, in responding affinnatively to the question on his applicution fonn
asking whether his objection to participation in war was based on “religious training and belief,”
first struck out the word “religious,” and later stated that his beliefs had been fonned
“by readings in the fields of history and sociology.” [d. at 341. The Supreme Court held that
he was qualified for exemption.
29. 398 U.S. 333 (1910).
30. United States v. Seeger, 380 U.S. 163, 188 (1965).
14 REVIEW OF LAW AND SOCIAL CHANGE [Vol. lX:9
true of the Court’s basing its affirmance in Catholic Bishop on the ground that
Congress did not intend to include parochial school teachers in the National
Labor Relations Act. 31
I have suggested that the free exercise clause is not the sole protection
accorded to cults by the first amendment. The establishment clause likewise
protects cultists against punitive action by government officials hostile to their
religious beliefs and practices. The clause forbids preferential treatment of favored
faiths and punitive treatment of those disfavored. In an oft-quoted paragraph
in the case of Everson v. Board of Education. 32 the Supreme Court said:
The “establishment of religion” clause of the First Amendment
means at least this: Neither a state nor the Federal Government can
set up a church. Neither can pass laws which aid one religion. aid all
religions, or prefer one religion over another. Neither can force nor
influence a person to go to or to remain away from church against
his will or force him to profess a belief . . . in any religion. No
person can be punished for entertaining or professing religious beliefs
. . . for church attendance or non-attendance. No tax in any
amount, large or small, can be levied to support any religious activities
or institutions, whatever they may be called, or whatever fonn
they may adopt to teach or practice religion. Neither a state nor the
Federal Government can, openly or secretly, participate in the affairs
of any religious organizations or groups and vice versa. In the words
of Jefferson, the clause against establishment of religion by law was
intended to erect “a wall of separation between church and State.” 33
Later decisions of the Supreme Court have defined the establishment
clause in somewhat different wording but not with different intent. In numerous
cases within the past decade the Court has stated that in order to pass
constitutional muster, a statute must have a secular legislative purpose, must
have a principal or primary effect that neither advances nor inhibits religion,
and must not foster excessive entanglement with religion. 34 (While these definitions
speak in terms of legislation, they are of course equally applicable to
executive action in enforcing facially neutral legislation.) Under these tests,
laws that are enacted or government executive actions that are taken for the
purpose of inhibiting cults, or that have a primary inhibitive effect upon them,
or require for their enforcement entanglement with religion, violate the establishment clause no less than the free exercise clause.
There is one aspect of anti-cult action that concerns me deeply because,
paradoxically, it is probably entirely constitutional. I am referring to the use
against cults or their members of laws concededly valid but entirely unrelated
31. NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 504-07 (1979).
32. 330 U.S. I (1947).
33. ld. at 15-16 (emphasis added).
34. E.g., Lemon v. Kurtzman, 403 U.S. 602 (1971); Meek v. Pittenger. 421 U.S. 349
(1975).
1980-1981] EQUAL PROTECTION 15
in their origin to cults or cult members. Invocation of tax laws is the most
frequent example, but it is far from the only instance of such use. In California,
for example, an attempt was made to invoke against the Worldwide
Church of God an entirely valid and neutral statute relating to corporations.35
Earlier, Jehovah’s Witnesses were frequent targets of such devices,3G but they,
too, were not alone. The draft law was invoked against Cassius Clay when he
became Muhammad Ali,37 the Unification Church has been in the courts challenging
a facially neutral zoning ordinance allegedly invoked against it,38 and
in this conference Professor Delgado proposes the invocation of the thirteenth
amendment against cults,39 although nothing could have been further from the
minds of those who drafted and enacted that amendment.
I conclude with a caveat that almost need not be stated. No first amendment
right, whether of religion, or nonestablishment. or speech. or press, or
assembly, is completely immune from governmental restriction. The amendment
does not forbid governmental action to prohibit child labor even where
religion mandates it,40 nor to compel innoculation 41 or blood transfusions,42
nor to prevent Jonestown-type incidents or punish those responsible for them.
In short, there are, and will continue to be, many instances of governmental
interference with the activities of religious groups. All I suggest in this paper
is that no greater interference is allowable with respect to cults than is permissible
with respect to long-standing and respected religions.
35. Worldwide Church of God v. Superior Court of State of California. L.A. No. 31091
(Cal. Sup. Ct. Mar. 22, 1979), cerl. denied, 444 U.S. 883 (1979).
36. See, e.g., Cantwell v. Connecticut, 310 U.S. 296 (l9-l0).
37. Clay v. United States, 397 F.2d 901 (5th Cir. 1968). vacated sub. nom. Giordano v.
United States, 394 U.S. 310 (1969).
38. Corporation of Presiding Bishop v. City of Porterville, 90 Cal. App. :!d 656.203 P.2d
823, appeal dismissed, 338 U.S. 805 (1949) (dismissed for want of a substantial federal question).
39. Delgado, Religious Totalism as Slavery. at 51 infra.
40. Prince v. Massachusetts, 321 U.S. 158 (1958).
41. Jacobson v. Massachusetts, 197 U.S. I I (1905); State C.t’ reI. Dunham v. Board of
Educ., 154 Ohio St. 469, 96 N.E.2d 413, cerr. denied, 344 U.S. 824 (1952).
42. People ex reI. Wallace v. Labrenz, 411 Ill. 618. H» N.E.2d 769. cert. denied, 344
U.S. 824 (1952).

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