Court: Exorcism is protected by law - Faith- msnbc.com

[Christopher Lund]

Responding to Professor Finkelman, I don't want a religious exception to
the neutral operation of tort law -- if tort law operates neutrally,
great, I have no problem with it.  But it seems there is a lot of jury
discretion with torts like IIED, both with respect to liability and
damages, and that discretion can result in neutral principles of tort
law being applied non-neutrally.  If I'm remembering correctly, there
were large tort judgments that nearly bankrupted groups like the
Scientologists and Hare Krishnas, when plaintiff alleged theories of
religious brainwashing and the jury had to pass upon questions like the
outrageousness of the defendants' evangelism -- a question close to just
asking the jury about the propriety of the defendants' religion (which
was significantly out of the mainstream).

I'd like to think that the solution is what Professor Hamilton says
--"keep the beliefs out of it; jury can't rule on them."  But I'm having
trouble making this work.  The district court here did keep the beliefs
out; the dissent says the jury "heard almost nothing about religion
during the trial due to the trial court's diligent attempt to circumvent
First Amendment problems and to honor the court of appeals' mandamus
ruling that neither side introduce religion as a reason for Laura's
restraint."  (Dissent at 9.)  But you can see the issue.  If we don't
talk about religion, Laura's restraint may be truly inexplicable.  For
intentional torts, if a church is going to raise a defense regarding
consent (or an honest mistake about consent), it needs to explain the
religious context and why it thought what it thought.  But then we're
back into the thicket. 

Despite how this thread has developed, my first sympathies were with the
plaintiff here.  But I'm wondering if it will really work just to apply
tort law and think that the jury will be able to remain neutral on all
the religious issues.  By the way, what would you do with Westbrook v.
Penley, 231 S.W.3d 389 (Tex. 2007), where the plaintiff brought IIED and
other claims against the church, minister, and elders for choosing to
shun her for an extramarital relationship?  

Best,
Chris

Christopher C. Lund
Assistant Professor of Law
Mississippi College School of Law
151 E. Griffith St.
Jackson, MS  39201
(601) 925-7141 (office)
(601) 925-7113 (fax)
>>> <hamilton02 at aol.com> 06/28/08 3:02 PM >>>
I think the theory should be standard  tort law as applied to any child
abuse claim. Keep the beliefs out of it; jury can't rule on them. But it
can as it did here make factfindings regarding whether the child was
deprived of the appropriate standard of care.

Marci 
------Original Message------
From: Christopher Lund
Sender: 
To: hamilton02 at aol.com
To: religionlaw at lists.ucla.edu
Sent: Jun 28, 2008 1:51 PM
Subject: Re: Court: Exorcism is protected by law - Faith- msnbc.com

I read the opinions -- there are several different views in the
dissents.  How do you think these cases should be decided?  Can she
recover for just the physical injuries?  Physical and emotional ones?  
Do we just apply the regular tort concepts of false imprisonment and
battery and IIED?   Isn't there a danger that, in doing so, the jury
will pass on religious issues?

Opinions available here everybody:
Opinion of the Court:
http://www.supreme.courts.state.tx.us/historical/2008/jun/050916.pdf
Primary Dissent:
http://www.supreme.courts.state.tx.us/historical/2008/jun/050916d1.pdf
Dissent 2: 
http://www.supreme.courts.state.tx.us/historical/2008/jun/050916d2.pdf
Dissent 3: 
http://www.supreme.courts.state.tx.us/historical/2008/jun/050916d3.pdf

Christopher C. Lund
Assistant Professor of Law
Mississippi College School of Law
151 E. Griffith St.
Jackson, MS  39201
(601) 925-7141 (office)
(601) 925-7113 (fax)
>>> <hamilton02 at aol.com> 06/28/08 8:26 AM >>>
This decision is plainly wrongly decided.  I sincerely hope a cert petn
is being filed.  
When coupled with the cavalier return of the child victims of the FLDS,
the Texas Sup Ct has established Texas as a refuge for those who abuse
children in the name of religion.

Marci 

Marci A Hamilton
Paul R Verkuil Chair in Public Law
Benjamin N Cardozo School of Law
Yeshiva University
------Original Message------
From: Joel Sogol
Sender: religionlaw-bounces at lists.ucla.edu
To: Religionlaw
ReplyTo: Law & Religion issues for Law Academics
Sent: Jun 28, 2008 8:46 AM
Subject: Court: Exorcism is protected by law - Faith- msnbc.com

http://www.msnbc.msn.com/id/25423465/


_______________________________________________
To post, send message to Religionlaw at lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as
private.  Anyone can subscribe to the list and read messages that are
posted; people can read the Web archives; and list members can (rightly
or wrongly) forward the messages to others.


Sent from my Verizon Wireless BlackBerry
_______________________________________________
To post, send message to Religionlaw at lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as
private.  Anyone can subscribe to the list and read messages that are
posted; people can read the Web archives; and list members can (rightly
or wrongly) forward the messages to others.



Sent from my Verizon Wireless BlackBerry