Free Exorcise Clause? Whether Exorcism Can Survive America's 'New Neutrality'
Northwestern University School of Law
April 20, 2009
Northwestern University Law Review, Forthcoming
In Pleasant Glade Assembly of God v. Schubert, 264 S.W.3d 1 (Tex. 2008), the Texas Supreme Court relied on the First Amendment's Free Exercise Clause to decline jurisdiction over a church member's civil case against the congregants that conducted an exorcism on her. The dispute arose when, on two separate occasions, the church pastor and numerous congregants subjected Schubert to the “laying on of hands” practice. While judicial abstention from religious questions is a well-established doctrine supported by Supreme Court precedent, religious actors can be held liable for physical harms, placing certain acts outside of the purview of First Amendment protection. Due to the highly physical and involuntary nature of exorcism, one's intuition might be that the practice would fit into this category. Furthering this notion is the "new neutrality" proffered by the Supreme Court in Employment Division v. Smith, 494 U.S. 872 (1990), which mandates that generally-applicable state laws (such as false imprisonment) be applied whether motivation for the act was religious or not. This Note addresses the underlying factors that drove the Texas Supreme Court to protect exorcism. These include the Court's implicit belief that exorcism is worth protecting, the unique flexibility judges have to formulate common law torts, and the role of consent. Finally, this Note suggests a manner in which the majority could have better formulated its ruling by drawing a clear line where liability would accrue, limiting punitive damages, and relying on the Texas Religious Freedom Restoration Act instead of the First Amendment. While the outcome in Pleasant Glade has proved controversial, this modified holding can be used in an appropriate manner by future courts to protect religious freedoms, as well as the public safety.
Number of Pages in PDF File: 43
Keywords: first amendment, free exercise, free exercise clause, exorcism, exorcise, employment division v. smith, pleasant glade, pleasant glade v. schubert, false imprisonmentAccepted Paper Series
Date posted: April 24, 2009
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