Religious Practices as Legally and Constitutionally Protected Against Regulations Aimed at Preventing "Addiction"
I'm serializing my forthcoming Emory Law Journal article titled Addiction to Constitutionally Protected Activity: Speech, Press, and Religion. In my first post, I argued that calls to regulate social media platforms and video games on the theory that they are "addictive" could equally plausibly be made with regard to various religious practices, which seem to share some of the supposedly "addictive" properties. But I follow this with an explanation that such regulations of religious practices would be unconstitutional. Here's the explanation as to adults; in the next post, I'll talk about how it also applies to attempts aimed at shielding children:
[* * *]
Yet I take it that our legal system wouldn't allow the government to regulate such religious practices in order to prevent people from making such unwise decisions. To be sure, religious institutions can be barred from engaging in physical abuse or physical coercion.[33] They can also be barred from outright lies about specific and secularly determinable factual assertions (e.g., about where donations would be going, or about whether the speaker had witnesses a divine visitation or healed someone through prayer).[34]
But the law can't prevent trying to play on people's emotions through religious leaders' sincerely believed theological claims about Heaven and Hell, or through the leaders' reliance on followers' desire for community acceptance or fear of excommunication. That is true of tort liability as well as of legislation.[35]
And that is true in spite of the fact that some religious groups, belief systems, and practices may be genuinely psychologically harmful—or, as critics of various religions have argued for millennia, may be tools that some religious leaders use to cynically milk parishioners for money. Religion can damage or destroy some people even as it helps or rescues others. (My argument doesn't rest on the theory that religion is uniformly good or even good on balance, and I personally am not religious.) Yet secular legal rules generally aren't allowed to protect people from supposedly manipulative or even addictive religious practices.
That is so, I think, for several closely related reasons.
[1.] Many religious people appear to derive emotional reward from their religious beliefs. For instance, barring large donations to religious institutions, for fear that they are the result of emotional or mental pressure, would perhaps help some people but deny an emotionally important option to other people.
[2.] Religious practice is constitutionally protected. Even under Employment Division v. Smith,[36] attempts to target religious practice because it's religious—and thus especially likely to involve psychological pressure and "addiction"—would be presumptively unconstitutional. American governments are thus generally not allowed to restrict people's religious choices on the grounds that they think those choices might be bad for them. And that remains so even if the restrictions are aimed at protecting others' ability to choose, unimpaired by psychological pressure or addiction.
[3.] People often value their own religiously motivated decisions very differently than other people might value those decisions. If we see someone giving all his money to a church, we may feel sympathy for what to us may seem like a foolish decision. What if the person ends up needing that money for living expenses, or medical bills? Even if the church promises to provide for that, isn't it sad to see someone become dependent on the church's mercy, which may in any event be withdrawn if the person moves away from his religious beliefs?
Or if the person is near the end of his life, isn't it sad to see the person unable to leave his money to his children? If something similar happened to us—if, for instance, we were psychologically manipulated into giving away our own money—we would feel very upset at the loss.
But of course the donor might take a very different view. He may think that his donation will give him eternal salvation, which he may see as infinitely more valuable than any value the money might have to him (or even to his family). And even setting aside such unknowable benefits in a future life, his belief that he will be saved—or just his belief that he is following God's will—may give him great joy and peace in his present life. One feature of American religious freedom is that secular authorities generally don't make fundamentally theological judgments about the spiritual or psychological value of perceived salvation.[37]
Likewise, we may think that isolating oneself from friends and family—perhaps permanently severing most of the relationships that, to us, make life meaningful—is a very bad choice and perhaps even the sign of mental illness.[38] Yet for millennia, some religions have honored and encouraged retreat into monasticism[39] or even hermitry,[40] as a means of focusing on what they think is their much more important relationship with the divine.[41] Such isolating, relationship-severing choices—and religious institutions' promotion of such choices—are themselves protected by religious freedom.
[4.] To be sure, in some situations the harm to the religious observer may be so sharp and immediate—or the mechanisms of control may be seen as so obviously improper—that the law may indeed intercede. Courts have, for instance, denied religious exemptions from generally applicable bans on the handling of poisonous snakes or drinking poison,[42] even under the Sherbert/Yoder approach which often called for such exemptions in less perilous situations (an approach that seems poised to return[43]). Presumably that reflected the view that protecting people's lives justifies a restriction on people's religious practices, even if people may think they get more expected spiritual benefit from snake-handling than the expected temporal cost. Likewise, religious donations may be set aside based on a finding of outright mental incompetence,[44] and religious organizations may be sued for luring members in through outright fraud.[45]
But for such practices to be prohibited, there must surely be something more than some general claim of "addiction" to religious beliefs, or assertions of emotional harm or modest financial loss. More than that is required to interfere with willing people's exercise of First Amendment religious freedom rights, even when the goal is to protect those who are in some sense being manipulated through cunning psychological pressure.
Thus, to borrow an argument made as to social media addiction, say that a legislature tried to regulate certain religious practices on the grounds that the practices' "addictive design itself interferes with users' liberty—their freedom of thought when subjected to an unwanted and persistent compulsion, and their bodily autonomy when addictive design contributes to mental illness."[46] That cannot be constitutional, I think: The law can't limit the liberty of those who want to embrace psychologically powerful religious practices (even when some nonbelievers view them as "manipulation"[47]) in order to protect the liberty of those who might find themselves "addict[ed]" as a result of those practices.
[* * *]
[33] See, e.g., Paul v. Watchtower Bible & Tract Soc. of New York, Inc., 819 F.2d 875, 883 (9th Cir. 1987) ("The harms suffered by Paul as a result of her shunning by the Jehovah's Witnesses are clearly not of the type that would justify the imposition of tort liability for religious conduct. No physical assault or battery occurred.").
[34] See, e.g., United States v. Ballard, 322 U.S. 78 (1944); In re The Bible Speaks, 869 F.2d 628 (1st Cir. 1989).
[35] Cf., e.g., Marks v. Estate of Hartgerink, 528 N.W.2d 539, 544-45 (Iowa 1995) (rejecting liability for wrongful excommunication); Korean Presbyterian Church v. Lee, 880 P.2d 565, 569-70 (Wash. Ct. App. 1994) (same); Paul v. Watchtower Bible & Tract Soc. of New York, Inc., 819 F.2d 875, 883 (9th Cir. 1987) (rejecting liability for shunning of a member who had left the church).
[36] 494 U.S. 872 (1990).
[37] See, e.g., Michael W. McConnell, Why Protect Religious Freedom?, 123 Yale L.J. 770, 781 (2013) ("In the liberal tradition, the government's role is not to make theological judgments but to protect the right of the people to pursue their own understanding of the truth, within the limits of the common good.").
[38] Cf. Religious Addiction, supra note 9 ("[t]he symptoms of religious addiction include . . . neglecting personal and family commitments"; "[t]he effects of religious addiction include . . . isolation and strained relationships").
[39] Christianity, Buddhism, Hinduism, and Sufism have encouraged monasticism. See, e.g., Mayeul de Dreuille, From East to West: A History of Monasticism (1999); Stephen J. Davis, Differences, in Monasticism: A Very Short Introduction 13 (2018) (surveying differences among monastic traditions in Buddhism, Jainism, and Christianity); David Cook, Mysticism in Sufi Islam, in Oxford Research Encyclopedia of Religion 1, 2–3 (2015); The Ties That Bind: Emotional and Social Bonds between Parents and Children, in Children and Family in Late Antique Egyptian Monasticism 160, 160 (2020) ("Monastic rules, handbooks, and literary texts testified to the distractions and even the dangers of maintaining familial attachments")
[40] Catholic Canon Law continues to recognize hermitry: "In addition to institutes of consecrated life [in a religious order], the Church recognizes the eremitic or anchoritic life by which the Christian faithful devote their life to the praise of God and the salvation of the world through a stricter withdrawal from the world, the silence of solitude, and assiduous prayer and penance." Canon 603 § 1. See also, e.g., Bethan Bell, A Hermit's Christmas: Simplicity, Solitude and Silence, BBC, Dec. 23, 2016, https://www.bbc.com/news/uk-england-37431760.
[41] To be sure, not all monastic lifestyles cause for complete isolation from family, and few successful religions encourage all their members to become monks or nuns: Indeed, a religion that did that would likely not survive into the next generation. But many religions do indeed valorize such behavior, which does involve some considerable degree of isolation, and which may appeal to those members of the religion that have suitable temperaments and attitudes.
[42] See State ex rel. Swann v. Pack, 527 S.W.2d 99 (Tenn. 1975); Hill v. State, 38 Ala. App. 404 (1956); State v. Massey, 229 N.C. 734 (1949).
[43] Fulton v. City of Philadelphia, 593 U.S. 522, 543 (2021) (Barrett, J., concurring); id. at 544 (Alito, J., concurring in the judgment).
[44] See, e.g., Tallahassee Bank & Trust Company v. Brooks, 200 So. 2d 251 (Fla. Ct. App. 1967).
[45] See, e.g., Molko v. Holy Spirit Ass'n, 46 Cal. 3d 1092, 1108 (1988).
[46] Lawrence, supra note 12, at 349; see also Matthew B. Lawrence, Addiction and Liberty, 108 Cornell L. Rev. 259, 324–25 (2023).
[47] See Lawrence, supra note 46, at 325.