Stopping religious lunatics is difficult under American law—and should be.

Even before David Koresh led his adherents to their horrific deaths in Waco, I heard Christians at my church ask sharply, “Why didn’t someone stop that lunatic sooner?”

Following the bombing of the World Trade Center in New York, allegedly perpetrated by an Islamic fundamentalist sect, mainstream religious believers asked, “Why do such groups go unchecked? Why don’t we just stop cults?”

Ironically, far less menacing individuals have been imprisoned for their activities as religious leaders. Jim Bakker, for example, is serving a lengthy prison sentence for fraud and conspiracy. Our courts punish such offenders—who, despite their crimes, do some good in their Christian work. Yet the same courts do little or nothing to crack down on psychotic and sociopathic religious leaders who eventually bring about horrendous suffering.

If we can put Jim Bakker behind bars, why can’t we stop hostile and potentially violent religious groups? Why not stop religious groups who reportedly abuse and control the minds of their adherents? Why tolerate leaders who may repeat the heinous crimes of Jim Jones or Charles Manson?

These are all good questions. But other questions also demand answers: Where do we draw the line declaring certain religious groups illegal? What should we require them to do? Disband? Stop practicing their beliefs? Stop believing their beliefs? And which religious groups should be targeted? Only violent fringe cults? Or should we include peaceful polygamist communities? Finally, whom should we appoint to monitor, judge, and police problem religious groups? Religious leaders? Government officials?

So we are left with a problem: Is there a way to stop Koreshlike lunatics under the law, yet maintain religious freedom for all?

Sort of. The answer lies partly in understanding how we analyze free religious exercise in our legal system.

Neutrality toward religion

In the American legal system, the free-exercise provision of the First Amendment to the Constitution provides a commitment to neutrality in religion. The First Amendment states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.…”

Many believe the Supreme Court has been inconsistent in applying the First Amendment to religious groups and individuals. However, almost all justices have historically agreed that theology and doctrine are matters of opinion and should be invisible to any court or legislature. In 1871 the Court articulated this view in Watson v. Jones: “The law knows no heresy and is committed to the support of no dogma.”

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This means that no legal claims or causes of action exist, civil or criminal, for thinking crazy thoughts about God. Even if every other American citizen disagrees with a person’s religious beliefs, that party has an unqualified legal right to be theologically wrong. Freedom of belief is absolutely protected from government interference.

Restricting religious practice

If no court or legislature may prevent or punish religious beliefs, what about religious practices? Do people have unqualified immunity from governmental authorities, no matter how negligent or criminal their behavior, so long as they act with religious sincerity?

Clearly not. Absolute protection ends with belief. Religious believers may have the freedom to hand out literature on public streets. But they may not legally blast their message over a loudspeaker at three o’clock in the morning in a hospital zone. Although the Supreme Court has held that certain religions may sacrifice animals, no one may lawfully sacrifice humans.

Government may indeed restrict religious behavior if a legislature narrowly drafts laws for the purpose of achieving a compelling government interest. Government may, in some cases, also restrict religious behavior if the interests of certain religious practitioners are outweighed by the interests of those who will suffer if their practices continue. Thus, those practicing religion in America do not have blanket immunity under the First Amendment.

Stopping the lunatics

If courts and legislatures may restrict certain religious practices, why don’t they stop violent religious cults? The key word is stop. That word presupposes police action taken before any damage is actually done. Here are three reasons why stopping any religious practice is difficult under the law.

1. Freedom of religion. Stopping a religious practice in America is difficult because we prize our freedom to worship as we choose almost as highly as we prize our actual religions. On the whole, any attempt by government to scrutinize religion, including religions we recognize as cults, is suspect.

2. Due process. Even if a private party or government official can leap the high hurdle of proving that a religious practice should be stopped because of competing public interests, the procedural mechanisms for stopping another party’s acts are cumbersome. This is because we Americans have another prized constitutional doctrine—due process. Due process is essentially the fundamental right of everyone to receive notice and an opportunity to respond when another party accuses him or her of wrongdoing.

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There are few procedural means of preventing others from acting. In the civil arena, a party can obtain an injunction, a court order restraining a party from a certain act or compelling the party to act in a certain way. In criminal cases, the government can arrest someone. Injunctions and arrests must be based on circumstances that would lead a person of reasonable caution to believe that irreparable harm will be done, or that a crime is being committed, which can only be stopped by judicial or police action. Mere suspicion is not enough to support either an injunction or arrest.

Moreover, the burden of proof is especially heavy on the party seeking a civil injunction. Why? Because injunctions and arrests deprive a person of freedoms before they have an opportunity to argue their side in court. Due process rights are intended to ensure against depriving us of our constitutional freedoms, including religious freedom.

3. “We” may become “them.” It is difficult to stop religious persons or groups from behaving in certain ways because “we,” who sometimes wish that the government would restrict the behavior of certain religious groups, may someday become “them,” the prospective subjects of scrutiny and regulation.

Consider again the question, “Why don’t we just stop these cults?” This question implies three sets of actors. First, the “we” who consider ourselves noncultists and who complain about the activities of a fringe group. Second, the cultists—the “them,” the ones to be stopped. Finally, the “somebody,” presumably the governmental authorities who are to stop the cultists.

Yet we believe the government is the worst arbiter of religious subject matter. The government neither understands nor should inquire into theological issues. If we ask the government to act against another religious group, what is to stop the government from acting against us in the future? After all, the government is constitutionally required to be blind to distinctions among religions.

Almost all Christian denominations have some aspects that would fit into the many vague definitions of cults. Dissenters outside a given denomination may want to demand that the government investigate aspects of that denomination. It is for this very reason that we create such safeguards in our legal system as due process and governmental neutrality toward religion.

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Upon reflection, most Americans would have it no other way. Many of the same believers I hear clamoring about the need to “stop” cults are the same people I hear complaining about government intrusion into their own religion. Most Christians who expect the government to stop other religious groups would cry “First Amendment” at the top of their lungs if their church became the target of government scrutiny. The premium we Americans place on religious freedom and due process, and our fundamental distrust of the government’s ability to critique religion make the regulation of religious behavior difficult if not impossible.

Think before you speak

Religious believers of all kinds must consider how they would want the courts to act toward them if they were the subject of governmental scrutiny. Before Christians blurt out a question such as “Why doesn’t someone stop these cults?” they should consider a few other questions:

How would they react if federal agents were in their church parking lot on Sunday morning taking down license-plate numbers? How would they feel if undercover agents were sent into church worship services, wired with electronic devices to tape the service and confessionals? How would they respond if they found that a member of their congregation was a federal agent who had joined to gather information about the church?

Outrageous? Such governmental scrutiny does occur. All of the above happened to an Evangelical Lutheran Church of America congregation, a Presbyterian church, and a Roman Catholic parish in Arizona because of those churches’ participation in the Sanctuary movement, an interdenominational movement to give politically endangered, but illegal, aliens food and shelter through the local church. Certain of the Arizona churches sued the U.S. government for a declaration that the covert acts of the government were wrong and were a violation of constitutional rights. The churches won after taking their case to the Ninth Circuit Court of Appeals.

Abusive and undue governmental scrutiny or regulation could happen to any religious group.

Thus far in our history we have chosen by our laws to avoid extensive scrutiny of religion by the government. Other nations, such as the former Soviet Union or Albania, have opted for a more restrictive policy toward religion. By choosing our system, we Americans sometimes experience the tragedies of religious lunatics gone amuck. That, however, is the price we have chosen to pay for our religious freedoms—for our deliberate choice to grant one another the right to be wrong.

Loren Wilkinson is the writer/editor of Earthkeeping in the ’90s (Eerdmans) and the coauthor, with his wife, Mary Ruth Wilkinson, of Caring for Creation in Your Own Backyard (Servant). He teaches at Regent College in Vancouver, British Columbia, Canada.

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