Posted by Eugene Volokh:
A Great Judicial Opinion:
I was just rereading one of my favorite court opinions -- Justice
Jackson�s dissent in [1]United States v. Ballard, 322 U.S. 78 (1944)
-- and I enjoyed it so much that I thought I�d blog it. Here�s the
background, from the majority:
Respondents were ... convicted for using ... the mails to defraud
... by organizing and promoting the I Am movement through the use
of the mails. The charge was that certain designated corporations
were formed, literature distributed and sold, funds solicited, and
memberships in the I Am movement sought �by means of false and
fraudulent representations, pretenses and promises.� The false
representations charged ... covered respondents� alleged religious
doctrines or beliefs.... The following are representative:
�that Guy W. Ballard, now deceased, alias Saint Germain, Jesus,
George Washington, and Godfre Ray King, had been selected and
thereby designated by the alleged �ascertained masters,� Saint
Germain, as a divine messenger; and that the words of �ascended
masters� and the words of the alleged divine entity, Saint Germain,
would be transmitted to mankind through the medium of the said Guy
W. Ballard;
�that Guy W. Ballard, during his lifetime, and Edna W. Ballard, and
Donald Ballard, by reason of their alleged high spiritual
attainments and righteous conduct, had been selected as divine
messengers through which the words of the alleged �ascended
masters,� including the alleged Saint Germain, would be
communicated to mankind under the teachings commonly known as the
�I Am� movement;
�that Guy W. Ballard, during his lifetime, and Edna W. Ballard and
Donald Ballard had, by reason of supernatural attainments, the
power to heal persons of ailments and diseases and to make well
persons afflicted with any diseases, injuries, or ailments, and did
falsely represent to persons intended to be defrauded that the
three designated persons had the ability and power to cure persons
of those diseases normally classified as curable and also of
diseases which are ordinarily classified by the medical profession
as being incurable diseases; and did further represent that the
three designated persons had in fact cured either by the activity
of one, either, or all of said persons, hundreds of persons
afflicted with diseases and ailments.� ...
[T]he indictment ... alleged: �At the time of making all of the
afore-alleged representations ..., ... the defendants ... well knew
that [the] representations were false ... and were made with the
intention on the part of the defendants ... to obtain from persons
intended to be defrauded by the defendants, money, property, and
other things of value ....� ...
The majority reasoned, I think quite correctly, that a court couldn�t
inquire in such a fraud case whether the defendants� religious beliefs
were true, but it could inquire into whether they were sincerely
believed. This is still the legal rule, and it may well be correct.
Among other things, courts would have to decide the sincerity of
religious belief in at least some situations, for instance when people
are claiming some religious or conscientious exemptions (say, to the
draft), whether those exceptions are constitutionally mandated or
statutorily provided.
Still, I think that Justice Jackson�s dissent, whether you agree with
it, is a model of clear, concrete, plainspeaking eloquence. Anyone
who�s interested in how to use facts and everyday experiences in
crafting an argument (not an argument that won any other adherents on
the Court, but I think still an excellent one) should read it:
([2]Continue reading this post.)
I should say the defendants have done just that for which they are
indicted. If I might agree to their conviction without creating a
precedent, I cheerfully would do so. I can see in their teachings
nothing but humbug, untainted by any trace of truth. But that does
not dispose of the constitutional question whether
misrepresentation of religious experience or belief is
prosecutable; it rather emphasizes the danger of such
prosecutions....
In the first place, as a matter of either practice or philosophy I
do not see how we can separate an issue as to what is believed from
considerations as to what is believable. The most convincing proof
that one believes his statements is to show that they have been
true in his experience. Likewise, that one knowingly falsified is
best proved by showing that what he said happened never did happen.
How can the Government prove these persons knew something to be
false which it cannot prove to be false? If we try religious
sincerity severed from religious verity, we isolate the dispute
from the very considerations which in common experience provide its
most reliable answer.
In the second place, any inquiry into intellectual honesty in
religion raises profound psychological problems. William James, who
wrote on these matters as a scientist, reminds us that it is not
theology and ceremonies which keep religion going. Its vitality is
in the religious experiences of many people. �If you ask what these
experiences are, they are conversations with the unseen, voices and
visions, responses to prayer, changes of heart, deliverances from
fear, inflowings of help, assurances of support, whenever certain
persons set their own internal attitude in certain appropriate
ways.�
If religious liberty includes, as it must, the right to communicate
such experiences to others, it seems to me an impossible task for
juries to separate fancied ones from real ones, dreams from
happenings, and hallucinations from true clairvoyance. Such
experiences, like some tones and colors, have existence for one,
but none at all for another. They cannot be verified to the minds
of those whose field of consciousness does not include religious
insight. When one comes to trial which turns on any aspect of
religious belief or representation, unbelievers among his judges
are likely not to understand and are almost certain not to believe
him.
And then I do not know what degree of skepticism or disbelief in a
religious representation amounts to actionable fraud. James points
out that �Faith means belief in something concerning which doubt is
theoretically possible.� Belief in what one may demonstrate to the
senses is not faith. All schools of religious thought make enormous
assumptions, generally on the basis of revelations authenticated by
some sign or miracle. The appeal in such matters is to a very
different plane of credulity than is invoked by representations of
secular fact in commerce.
Some who profess belief in the Bible read literally what others
read as allegory or metaphor, as they read Aesop�s fables.
Religious symbolism is even used by some with the same mental
reservations one has in teaching of Santa Claus or Uncle Sam or
Easter bunnies or dispassionate judges. It is hard in matters so
mystical to say how literally one is bound to believe the doctrine
he teaches and even more difficult to say how far it is reliance
upon a teacher�s literal belief which induces followers to give him
money....
If the members of the [�I Am�] sect get comfort from the celestial
guidance of their �Saint Germain,� however doubtful it seems to me,
it is hard to say that they do not get what they pay for. Scores of
sects flourish in this country by teaching what to me are queer
notions. It is plain that there is wide variety in American
religious taste. The Ballards are not alone in catering to it with
a pretty dubious product.
The chief wrong which false prophets do to their following is not
financial. The collections aggregate a tempting total, but
individual payments are not ruinous. I doubt if the vigilance of
the law is equal to making money stick by over-credulous people.
But the real harm is on the mental and spiritual plane. There are
those who hunger and thirst after higher values which they feel
wanting in their humdrum lives. They live in mental confusion or
moral anarchy and seek vaguely for truth and beauty and moral
support. When they are deluded and then disillusioned, cynicism and
confusion follow.
The wrong of these things, as I see it, is not in the money the
victims part with half so much as in the mental and spiritual
poison they get. But that is precisely the thing the Constitution
put beyond the reach of the prosecutor, for the price of freedom of
religion or of speech or of the press is that we must put up with,
and even pay for, a good deal of rubbish.
Prosecutions of this character easily could degenerate into
religious persecution. I do not doubt that religious leaders may be
convicted of fraud for making false representations on matters
other than faith or experience, as for example if one represents
that funds are being used to construct a church when in fact they
are being used for personal purposes. But that is not this case,
which reaches into wholly dangerous ground.
When does less than full belief in a professed credo become
actionable fraud if one is soliciting gifts or legacies? Such
inquiries may discomfort orthodox as well as unconventional
religious teachers, for even the most regular of them are sometimes
accused of taking their orthodoxy with a grain of salt. I would
dismiss the indictment and have done with this business of
judicially examining other people�s faiths.
([3]Hide the above text.)
References
1.
%E2http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=322&invol=78%E2
2. file://localhost/var/www/powerblogs/volokh/posts/1114542746.html
3. file://localhost/var/www/powerblogs/volokh/posts/1114542746.html
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