IN THE

Supreme Court of the United States

October Term, 1988

HOLY SPIRIT ASSOCIATION FOR THE

UNIFICATION OF WORLD CHRISTIANITY, et al.,

Petitioners,

David Molko and Tracy Leal,

Respondents.

On Petition for Writ of Certiorari to the Supreme Court of California

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE AND BRIEF OF SOCIETY FOR THE SCIENTIFIC STUDY OF RELIGION, AMERICAN SOCIOLOGICAL ASSOCIATION, MARTIN E. MARTY, WILLIAM D'ANTONIO, ROBERT S. ELLWOOD, JEFFREY K. HADDEN, FRANKLIN LITTELL, LARRY D. SHINN, BRYAN WILSON, HENDRICKA VANDE KEMP, RICHARD GORSUCH, RALPH HOOD, BERNARD SPILKA, RICHARD KAHOE, NEWTON MALONY, MARY JO MEADOW, JAMES BECKFORD, EILEEN BARKER, DAVID BROMLEY, MARY ROSE EBAUGH, DEAN MOGE, NANCY NASON-CLARK, ROBERT WUTHNOW, WILLIAM R. GARRETT, BENTON JOHNSON, JAMES RICHARDSON, WADE CLARK ROOF, RODNEY STARK, JOSEPH FICHTER, ARTHUR L. GRIEL, EDWARD LEHMAN, JR., RICHARD S. MACHALEK, ARMAND MAUSS, ARTHUR PARSONS, THOMAS ROBBINS, ANSON D. SHUPE, DAVID A. SNOW, STUART WRIGHT, JOSEPH BETTIS, DURWOOD FOSTER, PHILLIP E. HAMMOND, RAY HART, LOYDE HAPTLEY, JAMES R. LEWIS, J. GORDON MELTON, DONALD E. MILLER, TIMOTHY MILLER, HUSTON SMITH, LOWELL D. STREIKER, DICIK ANTHONY, HUBERT G. LOCKE, JOHN YOUNG

 

The Society for the Scientific Study of Religion The American Sociological Association and the individuals listed in note 2 infra respectfully move for leave to file the attached brief amicus curiae. Petitioner has consented to the filing; respondents have not.

In this case, the California Supreme Court held that tort liability could constitutionally be imposed on the Unification Church for "brainwashing" two potential recruits "by subjecting them, without their knowledge or consent, to an intense program of coercive persuasion." Appendix to Petition for Certiorari ("Appendix") 13a). The Court acknowledged that this tort would infringe the free exercise of petitioner's religion, but concluded that the prevention of "brainwashing" constituted a compelling state interest sufficient to justify the infringement. The court reached this result notwithstanding its recognition that the words and acts purportedly constituting the "brainwashing"--singing hymns, studying scripture, praying together--were sincere religious practices that occurred in a context devoid of fear, confinement or threats of violence. Thus, the crucial issue in this case is whether the State has a compelling interest in prohibiting nonviolent "brainwashing" by religious organizations.

Amici are groups[1] and individuals[2] professionally committed to the dispassionate application of scientific methods in the study of religion and other important social phenomena. Their collective accomplishments rank them as authoritative and distinguished experts on the integrity of social science generally, and on new religious movements in particular. In their consensus view, the allegation of "brainwashing" on which the California Supreme Court's theory of liability depended has no scientific validity. No methodologically sound studies support the theory, and many refute it. The purported risk of "brainwashing" thus cannot justify the devastating infringement of petitioner's religious practices threatened by the decision below.

As scientists, scholars, and professional associations, amici firmly believe that the results of careful scientific research can assist courts faced with issues at the frontiers of human knowledge. Amici seek to participate in this case, however, because they also acknowledge a concomitant responsibility to be vigilant against the ri sk that legal decisions will be based on unfounded assumptions and allegations masquerading as science. Because that appears to be what happened in this case, amici wish to demonstrate the implausibility of the purportedly "scientific" claims at issue.[3]

For all the foregoing reasons, amici urge the Court to accept and file the attached brief amicus curiae.

INTEREST OF AMICI

INTRODUCTION

REASONS FOR GRANTING THE WRIT

I. THE DECISION BELOW CONFLICTS WITH APPLICABLE DECISIONS OF THIS COURT REQUIRING STRICT SCRUTINY OF PURPORTED "COMPELLING STATE INTER ESTS" PROFERRED AS JUSTIFICATIONS FOR REGULATING CORE RELIGIOUS PRACTICES

II. THE SCIENTIFIC EVIDENCE PURPORTEDLY JUSTIFYING THE REGULATION OF RELIGIOUS PRACTICE IMPOSED BY THE COURT BELOW CANNOT SURVIVE SEARCHING SCRUTINY .

A. As Applied In the Context of this Case, the "Coercive Persuasion" Hypothesis Is Wholly Divorced from its Purported Theoretical Basis

B. As Applied To New Religious Movements, The Theory of Coercive Persuasion Is Not Scientific

C. The Methodological Foundations For The Theory Of Coercive Persuasion Are Non existent

D. The Theory of Coercive Persuasion On Which The Court Below Relied Is Simply A Negative Value Judgment In Scientific Garb

CONCLUSION

CASES

Cantwell v. Connecticut, 310 U.S. 296 (1940) Chen v. United States, 297 F.2d 760 (9th Cir. 1962)

Frye v. United States, 293 F.2d 1013 (D.C. Cir. 1923)

Goldman v. Weinberger, 476 U.S. 503 (1986)

Hobbie v. Unemployment Appeals Commission of Florida, 480 U.S. 136 (1986)

Katz v. Superior Court, 73 Cal.App.3d 952 (1977)

Lewis v. Holy Spirit Association, 689 F. Supp. 10 (D. Mass. 1983)

McDaniel v. Paty, 435 U.S. 618 (1978)

Paul v. Watchtower Bible and Tract Society of New York, Inc., 819 F.2d 875 (9th Cir. 1987)

Peterson v. Sorlein, 299 N.W.2d 123 ( Minn. 1981)

United States v. Fleming 7 U.S.C.M.A. 543 (1957)

United States v. Snowden, 770 F.2d 393 (4th Cir. 1985)

United States v. Kozminski, 821 F.2d 1186 (6th Cir. 1987)

United States- v. Kozminski, 108 S. Ct. 2751 (1988)

Wisconsin v. Yoder, 406 U.S. 205 (1972)

OTHER AUTHORITIES

Anthony & Robbins New Religions Families and "Brainwashing" in In Gods We Trust 263 (T.

Robbins & D. Anthony eds. 1981)

Balch, What's Wrong With the Study of New Re- ligions and What We Can Do About It, in Scientific Research and New Religions 25 ( B. Kilbourne ed.. 1985)

E. Barker, The Making of a Moonie (1984)

Bird and Reimer, Participation Rates in the New Religious Movements 22 J. for the Scientific

Study of Religion 1 (1982)

Deutsch and Miller, A Clinical Study of Four Uni- fication Church Members, 140 J. Am.

Psychiatry 767 (1983)

Galanter, Psychological Induction into the Large Group: Findings from a Modern Religious Sect, 137 Am. J. Psychiatry 1575 (1980)

Galanter, Charismatic Religious Sects and Psychi- An Overview, 139 Am. J. Psychiatry 1539

Galanter, Unification Church ("Moonie") Dropouts: Psychological Readjustment After Leaving a Charismatic Religious Group, 140 Am. J. Psychiatry 984 (1983)

Griffith, Young and Smith, An Analysis of the Therapeutic Elements in a Black Church Service, 35 Hosp. and Com. Psychiatry 464 (1984)

E. Hunter, Brainwashinq In Red China (1951)

James, Brainwashing: The Myth and the Actuality, 61 Thought 211 (1986)

S. Levine, Radical Departures (1984)

Lewis, Reconstructing the "Cult" Experience, 46 Sociological Analysis 151 (1986)

R. Lifton, The Future of Immortality and Other Essays for a Nuclear Age (1987)

R. Lifton, Thought Reform and the Psychology of Totalism ( 1961)

J. Melton and R. Moore, The Cult Experience (1982)

Monahan, First Amendment Due Process, 88 Harv. L. Rev. 518 (1970)

J. Monahan and L. Walker, Social Science in Law (1985)

Monahan and Walker, Social Authority Obtaining, Evaluating, and Establishing Social Science in Law, 134 U. Pa. L. Rev. 477 (1986)

Neale and Liebert, Science and Behavior: An Introduction to Methods of Research 9-10 (1980)

Platt, Strong Interference, 146 Science 347 (1964)

Richardson, Methodological Considerations in the Study of New Religions, in Divergent Perspectives on New Religions 134 (B. Kilbourne ed. 1985)

Richardson, The Active vs. Passive Convert: Paradigm Conflict in Conversion/Recruitment Research 24 J. for the Scientific Study of Religion 163 (1985)

Richardson, Psychological and Psychiatric Studies of New Religions, in Advances in the Psychology of Religion (Brown, ed. 1985)

Richardson, van der Lane and Derks, Leaving and Labelling: Voluntary and Coerced Disaffiliation From Religious Social Movements, 9 Research in Social Movement, Conflicts and Change 97 (1986)

Robbins, "Uncivil" Religions and Religious Deprogramming, 61 Thought 277 (1986)

Saliba, Psychiatry and the New Cults: Part 1, 7 Academic Psychology Bulletin 39 (1985)

E. Schein, Coercive Persuasion (1961)

Schein, The Chinese Indoctrination Program for Prisoners of War: A Study of Attempted Brainwashing 332, in Readings in Social Psychology (Macoby ed. 1958)

Solomon, Integrating the Moonie Experience: A Survey of Ex-Members of the Unification Church, in In Gods We Trust 275 (1981)

T. Ungerleider, The New Religions (1979)

Ungerleider and Wellisch, Coercive Persuasion (Brainwashing), Religious Cults, and Deprogramming, 136 Am. J. Psychiatry 279

Wright, Post-Involvement Attitudes of Voluntary Defectors from Controversial New Religious Movements, 23 J. for the Scientific Study of Religion 23 (1984)

[1] The Society for the Scientific Study of Religion ("SSSR") is an association dedicated to research and scholarly publications related to religious phenomena, including the consequences of religious belief on individual behavior, the impact of religious organizations on other social institutions, and the problems of continuity and change within religious groups. The Society now numbers 1,700 members from the following disciplines: anthropology, sociology, psychology, religious studies, theology, history and natural sciences, psychiatry,, medicine,, philosophy and ethics.

The American Sociological Association, founded in 1905, is an organization of persons interested in the research, teaching and application of sociology. It seeks to stimulate and improve research, instruction, and discussion and to encourage cooperative relations among persons engaged in the scientific study of society. It has 12,500 members in the United States and throughout the world.

[2] Martin E. Marty is a Professor at the Divinity School at the University of Chicago and the immediate past president of the American Academy of Religion. William D'Antonio is Executive Officer of The American Sociological Association, a professor emeritus of sociology at the University of Connecticut, and a past president of SSSR. Robert S. Ellwood is Director of the School of Religion of the University of Southern California. Jeffrey K. Hadden is a professor of-sociology at the University of Virginia, a past president of ASR, and a past president of SSSR. Franklin Littel is a professor of religion emeritus at Temple University. Larry D. 517 inn is a professor of religion and Dean of the College of Arts and Sciences at Bucknell University. Bryan Wilson is a reader in sociology at All Souls College, University of Oxford, England.

The following psychologists are members of the executive council of Division 36 of the American Psychological Association, Psychologists Interested In Religious Issues ("APA Division 36"): Hendricka Vande Kemp, President of APA Divison 36, and a professor at the Fuller Graduate School of Psychology, Fuller Theo logical Seminary; Richard Gorsuch, a professor at the Graduate School of Psychology, Fuller Theological Seminary; Ralph Hood, professor of psychology at the University of Tennessee; and Bernard Spilka, a professor of psychology at the University of Denver. In addition, Richard Kahoe is a past president of APA Division 36. Newton Malony is Director of Programs in the Integration of Psychology and Theology, Graduate School of Psychology, Fuller Theological Seminary, and a past president of APA Division 36. Mary Jo Meadow is a professor of psychology and director of religious studies at Mankato State University, Minnesota, and a past president of APA Division 36.

The following are members of the executive council of the Association for the Sociology of Religion ("ASR"): James Beckfors, President of ASR and a professor of sociology at Loyola University, Chicago; Eileen Barker a professor of sociology and the former Dean of Undergraduate Studies of the London School of Economics; David Bromley a professor of sociology at Virginia Commonwealth University; Mary Rose Ebaugh an associate professor of sociology at the University of Houston; Dean Hoge,, a professor of sociology at Catholic University of America; Nancy Nason-Clark, a professor of sociology at the University of New Brunswick; and Robert Whuthnow a professor of sociology at Princeton University. In addition, William R. Garret is a professor of sociology at St. Michael's College in Vermont, and a past president of ASR. Benton Johnson is a professor 0 f sociology at the University of Oregon' and a past president of ASR. James Richardson is a professor of sociology and judicial studies at the University of Nevada, Reno, and a past president of ASR. Wade Clark Roof, is a professor of sociology at the University of Massachusetts, Amherst, and a former Executive Secretary of SSSR. Rodney Stark is a professor of sociology and comparative religion at the University of Washington, and a past president of ASR.

Joseph Fichter is a professor of sociology at Loyola University, New Orleans, and a Roman Catholic Priest, Arthur L. Griel is an associate professor of sociology at Alfred University. Edward Lehman, Jr. is a professor of sociology at the State University of New York, Brockport. Richard S. Machalek is a professor of sociology and department chair at the University of Wyoming.

Armand L. Mauss is a professor of sociology at Washington State University and editor of the Journal of the SSSR. Arthur Parsons is chairman of Department of Sociology and Anthropology at Smith College. Thomas Robbins is a member of the council of SSSR. Anson D. Shupe is chair of the department of sociology and anthropology at Indiana University-Purdue University. David A. Snow is a professor of sociology at the University of Arizona and VicePresident of the Society for the Study of Symbolic Interaction. Stuart Wright is a professor of sociology at Lamar University.

Joseph Bettis is a professor of religious studies at Western Washington University. Durwood Foster is a professor of Christian Theology at the Pacific School of Religion, Berkeley. Phillip E. Hammond is chairman of the religious studies department at the University of California, Santa Barbara, and a past president of SSSR. Ray Hart is Chairman of the Department of Religious Studios at the University of Montana. Loyde Hartley is a professor of religion and society at Lancaster Theological Seminary, and a former Dean of the Seminary. James Il. Lewis is a teaching fellow at the University of North Carolina. J. Gordon Melton is Director of the Institute for the Study of American Religion, Santa Barbara. Donald E. Miller is a professor of religion at the University of Southern California, and is a former Director of the School of Religion. Timothy Miller is a professor of religious studies at the University of Kansas, and Chair of the New Religious Movements Group of the American Academy of Religion. Huston Smith is a professor of religion and adjunct professor of philosophy emeritus at Syracuse University. Lowell D. Streiker is a theologian, author and Chair of the United Church of Christ Spiritual Development Network.

Dick Anthony is a psychologist specializing in religion and mental health effects of new religious movements. Hubert G. Locke is a professor in the graduate school of government at the University of Washington, and Director of the William O. Douglas Institute. John Young is a psychiatrist at the Whitney Forensic Institute in Mlddletown, Connecticut, and a Roman Catholic Priest.

[3] The decision below was not an aberration. Some courts have properly rejected claims of "coercive persuasion," but others have not. See, e.g., Peterson v. Sorlein, 299 N.W.2d 123 (Minn. 1981); Van Schaick v. Church of Scientology of California, 535 F. Supp. 1125 (D. Mass. 1982). Other courts have declined to permit brainwashing to be used as a defense to charges based on "deprogramming." E.g. Eilers v. Coy, 582 F. Supp. 1093 (D. Minn. 1984). And still others have expressed some skepticism about the scientific basis for claims of brainwashing or coercive persuasion. Cf. Kropinski v. World Plan Executive Council, 853 F.2d 948, 966-957 (D.C. Cir. 1988).