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Chercheurs de dieux dans l’espace public - Frontier Religions in Public Space

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Pauline Côté

Troisième partie / Part III. Prospecteurs et gestionnaires de dieux - Sacred space contested boundaries

Law, social control and minority religions

James T. Richardson

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INTRODUCTION

1Law represents one of the paramount institutions of social control in any modern society. Certainly the way the legal system works varies by society, with, to note two important characteristics, some having more pervasive legal systems than others, thus allowing more litigation of all kinds (including more private legal actions), and some legal systems being granted more autonomy than others.

2Whatever the dominant characteristics of a given legal system, its use as a major device of social control is not in dispute. The way that role is exercised varies in ways understandable to those who study law as an institution and how it relates to other institutional structures in a society, as well as how it is defined within the culture of a given society.

  • 1 The terms “sects” and “cults” obviously have a pejorative meaning attached to them, with the forme (...)

3This chapter will focus on the way legal systems in modern societies impinge upon and interact with religious groups and institutions, with a special emphasis on social control of controversial minority religions, sometimes referred to as “sects,” “cults,” or “new religions”1. First, some rudimentary theoretical issues from the sociology of law that are relevant to explaining that relationship will be briefly addressed.

1. Pervasiveness of legal systems

4Societies vary greatly in terms of the pervasiveness of their legal systems. By pervasiveness we mean simply how thoroughly the legal system acts upon individuals, groups, organizations, and institutions within a society. Certainly there is an obvious distinction between modern and pre-modern societies in terms of pervasiveness, but, we can also discern important differences on this variable within the category of modern societies, particularly as it pertains to issues of religion.

5For instance, in the United States there is a very pervasive legal system that touches virtually every person’s life on a regular basis. The U.S. has the reputation of being an extremely litigious society, especially when compared to some others such as Japan where citizens and organizations seem much less interested in using the legal system for dispute resolution (Kidder, 1983). But, when one considers religion and religious freedom within the context of the U.S., there is an interesting caveat that represents a limit to pervasiveness of the legal system in matters religious.

  • 2 The exact wording of the portion of the First Amendment dealing with religion is: “Congress shall (...)

6The Constitution of the United States affords considerable protection for religious beliefs and behaviors2. Certainly the protection is not absolute, and thus, for example, polygamy, snake handling, and use of LSD in religious services are all against the law in the U.S. But, it is also quite legal to sacrifice chickens in a religious service in the U.S., as indicated by a unanimous Supreme Court opinion just a few years ago, and it is also legal for open and aggressive proselytizing by smaller and newer faiths to take place on the streets of America, again as affirmed by the nation’s highest court.

7Certainly, religion does not serve in the U.S. as a valid shield against overt law-breaking, although it is worth noting that even a straight-forward appearing episode of violating a law takes on a special meaning if claims are made that the person was acting out of religious motivations. Most cases involving such claims will receive special attention to make certain that the person’s rights in that area are not violated.

8Thus, the constitutional protection afforded religion stands as something of a bulwark against incursion of the state into things religious in the U.S. This makes it more difficult (but not impossible; see Richardson, 1995a,b) for the state to exert social control over religion in general and over newer faiths, including the controversial ones that have caught the attention of the media and the general public in recent decades.

  • 3 Another consideration is the fact that most Western European countries have a more developed “welf (...)

9In most European countries such constitutional protections do not exist or they are not enforced to the same extent as is the case in the U.S. In large part this may be a function of the historical fact of state churches having evolved within the European context3. Thus, in many European countries there is an officially sanctioned type of religion, even if the specific formal arrangements for that sanctioning differ somewhat. Sometimes that officially sanctioned religion is dual in nature, as in Germany or the Netherlands, both of which have both Catholicism and a type of Protestantism enjoying official status.

10In societies with an official church or churches there may well be a tendency for the legal system to get involved in enforcing that official sanction. Thus, the legal system may work with other institutions in the society to make sure that the official brand of religion is adhered to by citizens. In such situations a government may pervade things religious to a much greater extent than in other Western democracies.

11For instance, it is clear that the legal system of France is more prone to enforce normative behavior in the area of religion than is the case in the Netherlands or Italy (see Beckford, 1985; Kranenborg, 1994; Richardson and van Driel, 1994; Introvigne, 1994). It is also clear that in some European societies conflict may develop between the political institution and the legal system over the issue of religious freedom. Such seems to be the case in Germany at present, where minority faiths are under considerable pressure from political authorities, but have some protection afforded them because of a relatively autonomous legal system, a variable to which we now turn our attention.

2. Autonomy of legal systems

  • 4 There are those who would say that the U.S. legal system is dominated by business or economic inte (...)

12A legal system may, as indicated, have more or less autonomy. Stated another way, in some societies judges are able to exercise more discretion in their decision making than is the case in other societies. In some societies the legal system may be dominated by other institutions, such as the political or military institutions, or even by a church that has special recognition as the state church. It is clear, for example, that the legal system in the United States enjoys considerable autonomy compared to many other societies. The legal system has seen an evolution of a historical role in America that allows it, on occasion, to dominate the Executive Branch (the Presidency), as well as the Congress, through the process of having the power to declare laws passed by Congress unconstitutional, or being able to review actions of the Executive Branch for legality4.

13Many Western European societies have relatively autonomous legal systems, with the courts able, to varying degrees, to exercise independence from other institutional structures. Thus, we see the court systems of Italy, Germany, the United Kingdom, and a number of other countries able to function with considerable freedom from direct intervention by other institutional structures. There are variations in the autonomy of judicial systems among these European societies, of course, with, for instance, France having a less autonomous judicial system than is the case with Italy, a situation with implications for the way minority faiths are dealt with in those societies.

  • 5 See Richardson (1997) for a comparison of Hungary and Poland that contains a discussion of Scheppl (...)

14The case of Hungary is very interesting, given its recent history under communism. This society also demonstrates a legal system with considerable autonomy, especially with the power assumed by and granted to its Constitutional Court. Kim Schepple describes how this court regularly declares, with impunity, a significant proportion of the laws passed by the Hungarian Parliament unconstitutional. She also describes how its advice is sought by the Parliament as it considers new legislation. Thus, in a very short time, Hungary has come to resemble more long-term democracies of the West in terms of the degree of autonomy granted its judiciary5.

15Once a major court achieves some degree of autonomy, this may empower other courts within that system, as they attempt to “measure up” to the autonomy of courts which are above them or which handle different spheres of responsibility within the legal hierarchy (such as a bankruptcy court, a maritime court, or one that deals with patents, all of which exist in the U.S. as separate federal court systems). Thus autonomy seems potentially generalizable throughout a legal system, with lower or different courts being emboldened to act with authority in settling various disputes if other courts are able to exercise autonomous power. And, the citizenry, aware of the authority of the higher courts, may assume that lower courts share this mantle of autonomy, that is, citizens tend to abide by court decisions more in societies where there is a shared understanding that the courts do have independent power.

16Sharply contrasted with high degrees of autonomy are situations where the courts serve only the pleasure of despotic rulers, and its functionaries are appointed by such entities. One only needs to think of countries such as Iran, Iraq, Libya, or courts functioning under communism to grasp this point. Judges in those circumstances understand that they had little autonomy, and that if they chose to exercise autonomy their jobs if not their lives would be on the line. Judges under such systems understand that they are to assist in implementing an ideology, whether it be communist, radical fundamentalist Islam, or some other set of beliefs.

17Somewhere in between high autonomy and low autonomy societies are others whose legal systems have not achieved significant autonomy, but which have varying degrees of freedom to act independent of political, religious, or military institutions. Falling into this category are some of the societies that were under communism for so many decades. It is unrealistic to think that they would change overnight into full-blown democracies, with legal systems functioning as they do in more advanced industrial societies in the West. Again, Hungary seems an anomalous case in this regard, but the circumstances of the history of this “court-centric” approach taken by Hungary are quite unusual (Shepple, 1996).

18The typology just outlined can be presented pictorially as follows, with different societies placed at various locations on a continuum of autonomy:

19To say that a legal system has autonomy does not mean, of course, that the courts are free of all considerations of external influence, for courts must act within a cultural milieu, with its specific cultural values and beliefs, which include values and beliefs concerning religion and religious groups. Thus, judges and other court personnel (which in some countries include, quite importantly, individual citizens serving as jurors) are individuals who share to varying degrees the values and beliefs of that culture, and, not surprisingly, those personnel who make up the legal institutions act out those values as they do their work within those institutions. Thus, one can have actors within completely autonomous legal systems acting in ways that to some observers seem quite discriminatory and in opposition to basic human and civil rights. This could occur, not because of coercion of legal officials but simply because those filling roles within the legal system were acting out their values and beliefs in a way that discriminates.

  • 6 Examples of this include the Black Codes established in America after the Civil War to maintain Bl (...)

20Court systems in a society might implement racist values, for example, as some observers have said about the United States’ legal system that incarcerates large numbers of Black men. Court systems might favor one ethnic group over another, granting a higher legal status to one group or another because of cultural values sanctioning such outcomes6.

21Most germane for our purposes here, legal systems might favor one religious heritage over others, granting practitioners of the chosen religion a special place and special treatment within a legal system. This is another way of saying that legal systems, even though they have considerable autonomy, might not support religious freedom for all its citizens, because of implementation of cultural values that denigrate certain religions while promoting others.

22The consideration of cultural values can be illustrated by integrating with Figure 1, as follows, possible ways that the cultural value for religious freedom (dichotomized here for purposes of illustration) might relate to the variable of autonomy of legal systems:

TABLE 1. RELATIONSHIP OF AUTONOMY OF THE LEGAL SYSTEM AND CULTURAL VALUES FAVORING RELIGIOUS FREEDOM

TABLE 1. RELATIONSHIP OF AUTONOMY OF THE LEGAL SYSTEM AND CULTURAL VALUES FAVORING RELIGIOUS FREEDOM
  • 7 That logic is simply that religious freedom for minority religions requires an autonomous judiciar (...)

23This table shows that there are several possible ways that these two variables could relate. As societies are classified on these two variables, logic might suggest that higher levels of autonomy and more religious freedom would occur together more frequently, as would cases of little religious freedom and low autonomy (i.e, cases would group in the upper left and lower right parts of the table)7. However, it is an empirical question as to the actual distribution of cases within the table.

3. Pluralism and religious freedom

  • 8 Of course, leaders and citizens in homogeneous societies might make the claim that there was total (...)

24It is axiomatic that religious freedom is of interest only in pluralistic societies. If a society is homogeneous in terms of religion, then there would be little concern about religious freedom within that society. If all agreed on religious matters, who would there be to raise the question of rights of religious minorities, and why would it even be raised?8

25Having stated the axiom, of course, we need to acknowledge that virtually all societies are religiously pluralistic to some degree, which means that concerns about religious freedom issues exist in all modern societies. At issue is the degree of pluralism that exists in a society and what effect that has on religious minorities trying to practice their religion openly. One might predict some strong relationships between the degree of pluralism present in a society and the level of concern about religious freedom. Thus, for instance we might expect a society that is structurally quite pluralistic also to have a relatively high degree of religious freedom in terms of both formal policy and practical application of that policy. Thus we would posit a relationship that can be shown on the following table:

TABLE 2. RELATIONSHIP OF PLURALISM TO RELIGIOUS FREEDOM

TABLE 2. RELATIONSHIP OF PLURALISM TO RELIGIOUS FREEDOM

26We would assume that most cases would fall on the diagonal from upper left to lower right, and cases that deviated from this expectation would require explanation. For instance, if a highly pluralistic society in terms of religion did not have much religious freedom, then we would predict that a considerable amount of resources would have to be allocated to suppressing religious practices of those groups which were not favored by the state.

3.1 Pluralism in Former Communist Countries

27Of special interest again are the former communist countries, virtually all of which were relatively homogeneous prior to the advent of communism at the time of the Bolshevik Revolution in 1917 and then the later expansion of communism after WWII with the establishment of the Soviet Union. To varying degrees Communism supplanted religion in those societies, accomplishing this impressively in East Germany, for instance, while failing miserably in Poland, where the Catholic Church managed actually to augment its position in society during the communist decades.

  • 9 The phrase is taken from McFarland’s (1967) fine study of the development of new religions in Japa (...)

28Even before the fall of communism these societies were experiencing the effects of religious pluralism, as Western and Eastern influences were being felt, even if under difficult conditions. But after the fall, a virtual flood of new religions from the West arrived, and there was also something akin to a new “rush hour of the gods” developed within these societies, as citizens sought new answers to perennial questions of life and death9. The old god of communism had fallen, and replacements were sought from the West and from indigenous religions.

29Into this spiritual maelstrom came also new exertions of formerly dominant churches, seeking their historical place of preeminence in their societies. These efforts usually meant seeking to stem the tide of pluralism that had evolved and which had been given great impetus by the fall of communism. Thus throughout the former communist world battles have erupted over the issue of religious freedom.

30Formerly dominant and/or official churches, whose leaders liked the concept of religious freedom in the late 1980s and early 90s when they were still suffering under communist dominance, are no longer sure that religious freedom is such a good idea. They now want to limit competition from the newer faiths, and seem to assume that this can be done by legal edict. Thus they have abandoned not only communism but one of the real truths of Marxism, that being that certain historical forces cannot be resisted.

  • 10 This assertion is made in part because of the greater ease of travel, allowing people to move arou (...)

31Pluralism is an inexorable historical force that will continue to develop within the former communist world whether it is welcomed by dominant political and religious forces or not10. Short of violent repression, there is simply no way pluralism can be stopped, and even violent repression does not seem able to stop the spread of new and religious ideas for the long-term. This is especially the case since the formerly communist societies are in effect already quite pluralistic in nature, even if that fact is unrecognized by societal leaders.

  • 11 See Shterin and Richardson (1998), Shterin and Richardson, (2000), Richardson and Shterin (1998) o (...)

32Also, these societies have been infused with Western values, a process that also was occurring even before the fall of communism, but which was greatly accelerated by that event. These values include some degree of recognition of human and civil rights, including religious freedom. So, the combination of structural pluralism, that is the presence of people from many different religious groups, coupled with the Westernization of values that include individual autonomy means that the former communist countries will have a difficult time going back to the pre-communist situations, although it will not be for want of trying in some situations, such as Russia and Poland11.

3.2 Pluralism in Western Europe

33Western European countries are also having to deal with pluralism, and some of them are having considerable difficulty doing so of late. This seems to be particularly the case in recent years in France, Germany, and Belgium, although there have been some problems in other societies as well. But, societies such as the Netherlands (Kranenberg, 1994) seem relatively free of such difficulties, and Denmark also has made major progress (Rothstein, 1998).

34Western European societies have been quite pluralistic for some time, and that trend continues, even if some European leaders do not want to admit this development. Major battles have erupted over “new religions,” sometimes called by the derogatory terms “cult” or “sect”, as well as older religious minorities such as Jehovah’s Witnesses. Severe restrictions have been placed on minority and new faiths in some Western European countries, to such an extent as to have provoked international comment and condemnation in some cases, such as with Germany and France (Richardson and Introvigne, 2001; Richardson, 2001). These developments have, regrettably, been used by some former communist countries to justify actions being taken also to limit religious competition and re-establish formerly dominant churches as de facto if not de jure state churches (See Shterin and Richardson, 1998).

35One method for handling pluralism within the European context, which is influenced by its history of state sanctioned churches, is to develop a hierarchy of religions. Thus, some European societies arrange religious groups into lists, grouped into several different categories. Such a grouping might look like the following:

TABLE 3. HIERARCHY OF RELIGIOUS GROUPS USED IN SOME SOCIETIES

TABLE 3. HIERARCHY OF RELIGIOUS GROUPS USED IN SOME SOCIETIES

36Those groups in box 1 can have access to schools for religious education, to the military with chaplins, and they are often granted special tax status and state funding, and may even have special legislation (a “concordat”) granting them privileged status in the society. Groups in box two may be religious organizations that have a special status in other societies of importance to the host society, or they may have historical status within the society. For instance, some European countries will grant a second level status to major religious organization that operate as major denominations within the U.S., or they may allow the Muslim community special privileges, such as the recognition on polygamous marriages. Also, the Jewish faith may be allowed to function with some privileges, especially in the aftermath of WWII and the holocaust.

37Those in box 3 have few privileges, and may not be allowed to own property or rent public halls, or proselytize for members. They might be allowed to meet in private homes and possess their religious materials and books, but little else. To violate these regulations may result in fines and even imprisonment. Those groups that fall into group 4 function underground, and are always subject to harassment by the authorities and others involved in self-help but officially sanctioned social control. Sometimes those in these lower categories may be told that they have to exist for a certain length of time and achieve a certain number of participants before being considered for a higher status and more privileges (Witham, 1997).

38Such hierarchies of religious groups serve as guidelines for social control agents, either public or private, with more severe sanctions applying the lower groups in the particular hierarchy functioning in a given society. Thus, pluralism can be structured in a way that allows considerable control over selected segments of that pluralism. This is a common pattern in Europe for both Western and former communist countries, which means that religious pluralism does not directly equate to religious freedom in every society. Other historical or political forces may interfere with the working out of the “natural” impact of pluralism.

4. Status and intimacy variables

39One can also organize legal systems according to other variables, including who or what classes of people use the legal system for their private goals. Donald Black’s work in the sociology of law reveals that a number of structural variables impact access to law and the legal system, including, for instance, status and “intimacy” (Black, 1976).

40The higher the status of an individual or a group, the more prone they are to make use of the legal system, and the more prone they usually are to be able to work their will when using the legal system. “Intimacy” refers to personal closeness to participants in the legal institution, a variable obviously often related to that of status. That is, the higher the social and economic status, the more prone an individual is to having personal relationships with members of the legal system, which in turn may cause that system to be more responsive to the needs of such socially located people.

41Plainly the variables of status and intimacy can work at cross purposes with the key variable of autonomy, even overcoming apparent autonomy on occasion. This might occur in regimes in which powerful political or religious figures can effectively dictate outcomes of legal actions, or even instigate legal actions themselves, either privately or as an agent of a governmental agency, against unpopular individuals or groups. We would hypothesize that autonomy of a legal system would be most easily overcome when: (1) those in high positions in the judiciary, (2) share cultural values with those in high status positions, and (3) with whom they are personally intimate.

42Obviously, we are not suggesting that autonomy is always overcome in such circumstances. Indeed, another related hypothesis to show how these variable might relate in a manner demonstrating a high degree of autonomy would be the following: If (1) a legal system is truly autonomous, then (2) that autonomy will negatively impact the intimacy shared by members of that system and other high status persons in other institutional structures; also, (3) the status of those in the legal system will be high relative to leaders of other institutional structures.

43These and other possible hypotheses can be related, of course, to the issue of social control of minority faiths. A truly autonomous judiciary can defend itself against the actions and desires of high status individuals who might want to exert control over a given religious group. This would be easier, of course, in a context that (1) included constitutional guarantees that had been deferred to historically, and (2) which enjoyed public support, both indications of a favorable cultural climate in which to defend religious freedom.

  • 12 See DeWitt, Richardson, and Warner (1996) and Pfeifer (1995) for experimental studies showing the (...)

44But, be reminded that the discussion of autonomy included problems that can arise if those in decision making positions within the legal system (usually judges, but also sometimes, especially in the U.S., juries) are biased about a given religious group, or do not share values concerning religious freedom (or they do not accept a claim that a party is in fact a “real religion”)12.

5. Evidentiary issues and social control of minority religions

  • 13 Other variables could be discussed as well, such the differences between the adversarial legal sys (...)

45Several key sociological variables of importance to understanding how legal systems operate have been described, especially as they relate to the use of the legal system as a social control mechanism for use with religious groups and practices perceived as deviant by members of the greater society13. Illustrations of the operation of those variables have been offered, as they might apply to newer and smaller religions. Now I will discuss some selected types of cases, using the theorizing offered above as a guide.

  • 14 I am not, of course, suggesting that minority faiths always lose legal actions in which they are i (...)

46Evidentiary issues, that is, rules and criteria for acceptance of evidence will be a special focus of this section. My contention is that the legal system will, in cases involving unpopular religious groups and behaviors, often show the flexibility to function in a normative way, regardless of the actual rules that might operate concerning what is and is not acceptable evidence14.

47Put another way, it seems clear that in any legal action the production of evidence is crucial: without evidence there is no basis for the case. And, it is just as clear that the production of evidence is a social process, subject to the operation of sociological variables such as those discussed above (Cooney, 1994; Richardson and Ginsburg, 1995, 1996). So, the sociologist should be interested in what causes evidence to be produced and the concomitant process of the acceptance of the evidence which is produced for a given legal action.

48My theses can be stated simply, using the variables discussed above:

495a) First, given the pervasiveness of legal systems in the modern world, coupled with the growth of pluralism in modern societies, many legal actions will arise that involve newer and smaller religious groups. The amount may vary by society, but in all modern societies the legal system will be involved in exerting control over such religious groups and practices.

505b) Problems concerning quality of evidence are more likely to arise in cases involving controversial groups and their alleged practices, even in societies with relatively autonomous legal systems. This occurs because of cultural values that involve biases and stereotypes about such groups and practices.

515c) Courts seem more prone to allow problematic forms of evidence to be produced and accepted in cases involving marginal groups and practices so that the normative role of the judicial system can be exercised. This occurs because decision makers in legal systems are acting out their prejudices and misinformation about such groups. Thus, decisions are sometimes made by judges to admit evidence that would not be admitted under other, more normal, circumstances. Also jurors are prone to accept questionable evidence when it supports notions that a strange group has done something, no matter how bizarre the allegations.

525d) Status and prestige variables play a major role in decisions made within legal systems about newer faiths. Such groups nearly always have lower status and prestige than the group’s adversaries involved in the legal system, including the parties bringing the action against the group, or defending against an action brought by a smaller or newer group or its representatives. Thus, newer religious groups are disadvantaged from the outset in such processes.

535e) The variable of intimacy also plays a crucial role in efforts at social control via legal systems. For key decision makers in the legal system, new and minority faiths are often unknown to them. Worse yet, the decision makers may share quite negative views of such groups and their practices that have become hegemonic through negative media coverage and the actions of societal opinion leaders. Thus, the newer groups are not only strangers, they are feared strangers, requiring normative intervention by those decision makers. Message must be sent that the alleged behaviors and beliefs of such groups are not acceptable in normal society.

54To illustrate these theoretically based assertions, I will first discuss so-called “cult/brainwashing” cases that have occurred mostly in America, but also elsewhere, including in Europe (Richardson, 1996).

5.1 “Cult/Brainwashing” Cases

55In the U.S. in recent years we have seen a number of cases involving new religions which are accused of “brainwashing” participants, and then using so-called “mind control” to retain members (Anthony, 1990; Anthony and Robbins, 1992; Richardson, 1991,1993b).

56This simplistic “brainwashing” theory of why people participate in such groups seems posited on the notion that no right thinking person would ever participate in such odd groups unless they were tricked or under some sort of mental control. This so-called theory is used to explain the fact that most members of such groups in the U.S. in recent decades have been members of the middle or upper class groups who were well on their way to obtaining the education necessary to achieving a promising career (or so their parents thought), when they suddenly joined a new and strange religious group.

57Why some young people in America would give up such promising futures was beyond the ability of some parents and others to grasp or accept. The implications of modern rampant pluralism were lost on many, and instead, it seemed that the youth were tossing aside promising careers to follow a foreign guru and engage in weird practices. This development made no sense to many parents and other observers, including particularly some members of the press corps who like to run human interest stories. Thus, many observers think that something must have happened beyond the control of the young person, and it must have been strong enough to overcome years of excellent socialization and training that parents had invested in their young. The threat that apparently overcame the young person was posited as being very powerful indeed, requiring powerful responses from society’s institutional structures and political leaders, with whom the relatively high status parents might have been somewhat intimate.

58One favorite way to respond to threats in America, of course, is with legal action. Thus, we have seen a number of actions in civil court where former members sue the former group of membership for large sums of money using a “brainwashing” based theory of their case. They may claim false imprisonment, fraud, or intentional infliction of emotional distress, but much of the discussion in court concerns notions of brainwashing and mind control. A sizeable number of such cases have been brought in recent years, often by people who have been forcibly “deprogrammed.” Several such cases have resulted in multi-million dollar jury awards, mostly from punitive damages awarded to punish what was perceived as especially egregious behavior and to make an example of the offender.

  • 15 See Richardson (1999) for a discussion of the evolution of social control efforts from those based (...)

59These brainwashing based claims have also arisen in some family court matters, to justify actions involving custody of children of group members15. Brainwashing claims have also been made as well in a number of criminal cases, where people have used such claims to help establish a kind of “diminished capacity” defense to criminal charges, or where the claims have been raised as a defense in kidnapping or assault cases brought against “deprogrammers.” The latter cases involve deprogrammers who have taken adult members of new religious groups out of the groups by force, and then used rigorous methods with the “deprogramee” in an effort to get them to recant their beliefs and leave the group.

60As indicated, the use of brainwashing based claims in civil actions has been rather successful, as has the use of such claims as part of the defense in cases were deprogrammers were being charged with kidnapping or assault. The use of such claims in diminished capacity defenses has not worked well, however. Family court uses of brainwashing based claims flourished for a while, as a basis for conservatorship hearings brought by parents of adult children. However, adverse appeal court rulings have limited such uses in recent times (LeMoult, 1983; Bromley, 1983).

  • 16 The analogy often given in American law schools is that it is better to break into a house if by s (...)

61In the kidnapping type cases such claims have been a part of what in America is called the “necessity” or “choice of evils” defense. The idea is a simple one, but it is fraught with the possibility of abuse. Supposedly, the person must have been taken from the group because it was necessary to do so or she/he would have suffered a greater harm than that of being kidnapped16.

62Such use of a necessity or choice of evils defense is not routinely allowed in American courts. But it can be raised and allowed by the court where deemed relevant. When dealing with a strange, even hated and feared new religious group, it is easy to understand a judge allowing such testimony. And this has happened with direct rulings to allow such discussions in court, or more indirectly with considerable leeway being allowed in discussions of motives for commission of the alleged crime of kidnapping or assault (Bromley and Robbins, 1993; Richardson, 1995a).

63In civil actions against a group of former membership brainwashing based testimony has often also been allowed, under the rationale that the plaintiff must be allowed to explain what it is about the group that was so bad as to constitute false imprisonment, fraud, of intentional infliction of emotional distress.

  • 17 A related rationale for allowing brainwashing based testimony is that of “consumer protection,” a (...)

64Such decisions in criminal and civil matters have had the effect of allowing very questionable testimony from a few self-designated experts who are willing to say (for a fee, of course) that the particular group in question does brainwash its members, and that life in the group is heinous and revolting. So bad is the group that, according to some of these self-appointed experts, just being a member caused mental problems that require treatment and warrant damages (Richardson, 1992,1993a) and that getting people out should be done at all costs, even if the person does not want to leave and has to be kidnapped17.

65These experts ignore the volitional nature of virtually all decisions to participate, and they ignore the very high attrition rates that such groups suffer, as most participants decide, after a short time in the group, to move on to something else. Such “experts” also ignore a huge scholarly literature that demonstrates that participation in such groups usually has an ameliorative function, and that many people have a quite positive experience in such groups (Kilbourne and Richardson, 1984; Richardson, 1993b).

66Thus, in America, even though the Constitution supposedly protects freedom of religion, we may see weeks of testimony about the beliefs and practices of a given religious group placed in the record for the jury’s consideration. Testimony that could not be allowed as a clear violation of freedom of religion guarantees is thus “back-doored” into the case under the guise of explaining why remaining in the group would have been a greater evil, or how the person was tricked into participating.

  • 18 See Ginsburg and Richardson (1998) for a systematic critique of “brainwashing” based testimony in (...)

67The very fact that the judge allows such testimony at all would not be lost of jurors, of course, who bring their own biases and prejudices to the court, given impetus by a lack of personal intimate knowledge about the new group. The political and normative nature of the jury in America has been much discussed, and cases involving new and controversial religious groups serve to illustrate well that position. Especially when so-called scientific experts are allowed to testify in ways that reinforce the normal biases and misinformation found in the general public members of the jury pool, there are special problems (see DeWitt, Richardson, and Warner, 1996; Pfeifer, 1995). The courts need to be especially mindful of such possible problems, and pay special attention to decisions to allow what would otherwise be questionable testimony. It is fashionable to be against the so-called “cult menace” in America, but it may not be good legal and judicial practice to allow that fashion to govern decisions about the type of evidence allowed in court18.

5.2. Other Brief Examples

5.2.1 The Dingo Case in Australia

68In Australia there have been some major cases involving minority religions where it seems obvious in hindsight that the normal rules of decision making about crucial evidence were not followed (Richardson, 1995b). One involves the famous case of Lindy Chamberlin, whose baby was apparently taken and killed by a dingo at Uluru (Ayers Rock) in Central Australia. The case, which was made into a major motion picture (Cry in the Dark, starring Merril Streep) seemed open-and-shut until it was revealed in the media that Mrs. Chamberlin and her husband were Seventh Day Adventists, after which there was a huge outcry that eventually resulted in Mrs. Chamberlin being sentenced to prison for murdering her baby, supposedly in some bizarre Adventist ritual.

69Crucial evidence was withheld in the case (i.e. not produced), and some of the evidence that was offered was plainly questionable. Mrs Chamberlin served five years in prison before a public outcry led to the reopening of the case and the granting of a pardon to her. Meanwhile, her marriage had been destroyed, and her life was a shambles.

70Observers have suggested that it was Mrs. Chamberlin’s status as a member of a relatively unknown minority religion that was the key variable in what happened with this case (Richardson, 1995b). It is difficult to refute this conclusion based on reviewing the record. The Royal Commission that eventually reviewed the case found the evidence on which her conviction was based to be sadly wanting. Spray paint underneath the dash of the family car was testified to as blood from the “arterial spray” of the baby, as its throat was cut in the car. Blood samples were tested with plainly improper methods and conclusions from the tests were presented in ways that fitted apparent beliefs of the one doing the tests. Tears on clothing was testified to by a famous visiting forensic scientist from England as definitely not being made by a dingo’s teeth, but more likely being made by scissors. The findings of the commission raise a profound question. If the evidence was so weak, why was this not discovered during the trial? Apparently, the courts were overwhelmed by bias and misinformation, and normative based actions were taken that had little to do with proper evidence or justice.

5.2.2. The Hilton Bombing Case from Australia

71In 1981 a bomb went off outside the Hilton Hotel in Sydney, killing two workers and injuring several others. It was thought that the bomb might have been directly targeted at a specific visiting dignitary, the Prime Minister of India, who was attending a political conference there.

72Almost immediately the Ananda Marga group, a radical Hindu sect, was discussed in the press as possibly being linked to the bombing. This group was alleged to have been associated with some violent political actions overseas, and it had been the focus of an investigation in Australia by federal authorities for several months at the time of the bombing. Some of its members in Sydney were arrested on other charges, but almost immediately the press was full of stories that those arrested were implicated in the Hilton bombing, a idea derived directly from statements by police authorities to journalists.

73A police informer who had allegedly infiltrated the group told wild tales of the planning of the bombing and other matters. Other police informants came forward later with tales of what they had heard the defendants say while imprisoned with them after the bombing. The testimony of all police informants in this case was always obviously problematic, simply because the informants would claim things that were physically impossible (some were not even in the same prison as the defendants), and the testimony was often internally illogical and inconsistent.

74Problems with this evidence were ignored by the media, and apparently forgotten by the jurors. The media wrote articles as if convictions were a forgone conclusion, ignoring evidentiary problems and virtually everyone, including most media representatives, seemed to think that they “had their men.”

75One major problem arose because the defendants could not examine some of the key evidence (the prosecutor refused to produce it for their use), evidence that was quite exculpatory when finally reviewed by a special commission. The battle over access to certain types of evidence was carried all the way to the High Court, and lost on a split vote against the defendant’s right of access.

76Later, the defendants were released, and even paid a relatively meager amount of compensation for their trouble, after serving seven years in prison. One of them was even put through another trial for the same offense (he was found not guilty), an action that some commentators suggested was an effort to get even by some of those embarrassed in the first case (see Richardson, 1995b, for more details).

  • 19 A theory that has gained prominence in later years is that the bomb was actually planted by some r (...)

77The lessons of this case seem obvious in hindsight. The police governmental agencies, and the judiciary can sometimes get so caught up in mass hysteria that good judgment is clouded, and bad, even tragic, decisions are made. Plainly, justice was not served by the Hilton bombing case, and we still do not know why it happened or who did it19. The defendants appeared to be convenient scapegoats, and their scape-goating was nearly completely successful.

78The fact of the defendant’s participation in a minority religious sect played a major role in how they were treated by governmental agencies and the legal system, as well as the media. They were politically weak and thus were vulnerable to accusations made about their connection with the bombing. Once the accusations were made, a tidal wave of prejudice washed away all hope that the defendants might receive a fair trial.

5.2.3. The Yakunin versus Dvorkin Case in Russia

79In 1997 a major case involving minority religious groups developed in Russia. All the details cannot be given here (see Richardson and Shterin, 1998), but suffice it to say that the case involved minority religious groups and sympathizers on one side, as plaintiffs, and a functionary of the Russian Orthodox Church (ROC) as the defendant in a libel action. The case resulted from the publication of some extremely harsh claims about minority faiths by Alexander Dvorkin, who was in charge of an educational arm of the ROC, which was actually the major Anti-Cult Movement organization in Russia at the time (see Shterin and Richardson, 2000).

80The case lasted five weeks, and involved many types of testimony (the writer was a witness for the plaintiffs). Many parents of participants in new and controversial religious groups were allowed to testify, to the point of obvious redundancy. Also, the ROC brought in representatives of the Western Anti-Cult Movement (see Shupe and Bromley, 1980, 1994), who were allowed to make all sorts of unsupported claims about consequences of participation in the new religions. Theological statements and ideological claims were allowed, as well as blatant nationalistic arguments.

81On the other hand, the court chose to completely ignore evidence based on the vast literature concerning new religions that has developed in the West, in America and some European countries. This writer and others who had been involved in such social scientific research for decades were allowed to testify, but the testimony was ignored. The final judgment of over 100 pages was over 40% almost direct quotes taken from Western anti-cult sources, and there was no mention of the hours of testimony derived from many scientific studies done by social scientists.

82What was striking, aside from the stark differences in how the courts in Russia operate, was the apparent lack of real autonomy of the court system, which seemed to be responsive to the ROC and the media, and very susceptible to political pressures and to the ACM-based nationalistic arguments. The ROC was well represented throughout the trial, but particularly at the beginning and end, when a number of ROC priests in full garb were present as obsevers in the courtroom. On the last day of the trial, after closing arguments, an Archbishop of the ROC stood and ask permission to bless the court. The judge allowed this, whereupon the Archbishop offered his blessing to the defendant, and thanked the Court for the decision it was about to render. Immediately afterward the judge ruled in favor of the defendant. A clearer illustration of how another institutional structure can influence a legal system could not be hoped for. The case was appealed by the plaintiffs, but unsuccessfully, adding to the conclusion that the entire legal system was acting in a normative role, subservient to political considerations.

5.2.4 Hungary and the Hare Krishna

83A situation developed in recent years in Hungary (described in Kamaras, 1997 and Richardson, 1997) that also illustrates some of the variables which we have been discussing, even if in a somewhat different manner. Similarly to what happened in Russia and other former communist countries, a liberal law granting freedom of religion was passed in 1989. This law, which recognized the growing religious pluralism in Hungary, made it easier for smaller and newer groups to register and function within Hungary, with officially registered groups even having a claim on tax revenues proportionate to their size.

84Almost immediately there was a reaction to this liberal law, and in 1991 a serious anti-cult campaign similar to what has happened in the West (Shupe and Bromley, 1980, 1994) as well as more recently in former communist countries was launched (Shterin and Richardson, 1998), led by a prominent Reformed Church minister, Pastor Gaza Nemeth. Nemeth wrote a series of newspaper articles accusing the newer groups of “brainwashing” youth, of breaking up families, undercutting Hungarian consciousness among the youth, and other detrimental actions. Pastor Nemeth then established a Western style anti-cult organization and published a pamphlet making many unfounded accusations against the newer groups.

85In 1992 a proposal was made by a committee in Parliament to refuse financial support four controversial smaller religions, referred to in the proposed legislation as “destructive cults.” Included in this designation were the Unification Church, Scientology, Jehovah’s Witnesses, and the Hare Krishna. Thus began a somewhat official effort at exerting social control over some minority faiths operating in Hungary, an obvious reaction to the pluralism that had developed (or been recognized) within the society. That effort did not bear the same fruit as a similar effort in Russia, however, because of different circumstances, including with some key variables discussed herein (see Richardson and Shterin, 1998). The legal system played a key role in this different outcome.

86The Hare Krishna sued Pastor Nemeth for defamation, based on his claims made about them in his stories and in the pamphlet. Surprisingly they won at the trial level, as well as later on appeal to a higher court. The Hare Krishna eventually were accepted as a group to which financial resources could flow from the state (see Richardson, 1997).These developments demand some explanation, given what has typically happened to minority religious groups in legal actions (recall the outcome in Russia just discussed, of a similar legal action).

87In post-communist Hungary the judicial system has demonstrated a remarkable independence, as discussed by Shepple (1996). The reach of the judicial system is quite pervasive and powerful, particularly for the relatively new Constitutional Court. This development has occurred in part because of the lack of dominance of the Catholic Church, which was seen by many as seriously compromised by is collaboration with the communists over many years. Also, the Catholic Church was not the monolithic presence in Hungary that the ROC occupied in Russia, since there was a significant Protestant minority group in Hungary.

88Therefore, the kind of successful alliance formed in Russia between the Russian Orthodox Church and conservative political forces was not possible in Hungary. Indeed, more liberal political forces in Hungary were apparently able to use the Hare Krishna as a vehicle to fight off efforts by the Catholic Church and more conservative political forces to achieve a more dominant position in the new post-communist society. The Hare Krishna, showing considerable sophistication in how to operate within the legal and political environment of Hungary at that time, promoted more personalistic ties between themselves and prominent politicians, and sought their assistance in the effort to defend themselves.

89Thus, the Hare Krishna developed some important relatively high status allies in the Hungarian Parliament and in the general public, demonstrating the role of status and intimacy variables within the legal and political system in Hungary. More liberal-minded Hungarian leaders sought ways to stave off the same kind of conservative alliance that had worked so effectively in Russia and some other former communist countries, and the battle over the Hare Krishna became a part of the effort. And, operating above all the fray of political infighting and posturing, the Hungary judicial system was able to function in ways unseen, for example, in Russia (see Richardson and Shterin, 1998). The victory of the Hare Krishna at the trial level, a decision upheld on appeal, clearly shows that forces were at work in Hungary that were unsuccessful in some other post-communist countries. Whether this situation changes over time remains to be seen, but at least this episode shows the different ways variables such as pervasiveness and autonomy of the legal system can operate within in a different social context.

CONCLUSIONS

90This chapter examined several key variables that help us understand how legal systems operate in their role as social control agents acting in a normative function. The focus was on the exercise of that role with reference to religious groups and practices, especially those of smaller, and newer faiths, which are often unpopular and controversial within their host societies.

91The variables examined included: (1) pervasiveness of legal systems, by which is meant how much the lives of citizens are impacted by machinations of the legal systems; (2) autonomy of legal systems, which refers to whether legal systems are influenced or even perhaps overwhelmed by other institutional structures, such as political, religious, or military ones; (3) status and intimacy relationships between those using or being forced to use the legal system as it operates in its social control and normative mode. Also discussed at some length was religious pluralism, a important structural and historical variable if one is to understand how the legal system relates to things religious in a given society.

92Several specific cases and types of cases that have developed around the world were examined to show the operation of some of the variables that had been discussed. These included so-called “brainwashing” cases, particularly from the U.S., two very problematic cases involving minority faiths in Australia, a recent major case involving religious freedom issues in Russia, and an important case from Hungary that occurred in the post-communist environment.

93All these cases demonstrate that: (1) legal systems do operate as normative institutions, and as agents of social control; and (2) that operation is understandable from the perspective of sociology which makes use of structural and historical variables such as those described. Thus, it is clear that the presence of pluralism in modern societies can set up conflict and competition between religious groups and between religious groups and institutions and other forces in society. The conflicts that develop can often end up being legal conflicts, handled within the legal systems that are pervasive in many modern societies. Those legal conflicts are affected by the operation of variables such as the relative degree of autonomy afforded a given legal system, and the status relationships and the degree of intimacy between parties. And, it is also obvious that, as the sociological variables operate, religious freedom for a society’s citizens can be greatly affected, sometimes (often?) in a negative direction if they are participants in a minority faith that is relatively unknown and unpopular.

Bibliographie

REFERENCES

Anthony, Dick (1990), “Religious Movements and Brainwashing Litigation: Evaluating Key Testimony.” Pp. 295-344 in T. Robbins and D. Anthony (eds,), In Gods We Trust. New Brunswick: NJ: Transaction Books.

Anthony, Dick and Tom Robbins (1992), “Law, Social Science and the “Brainwashing” Exception in the First Amendment.” Behavioral Sciences and the Law 10: 5-30.

Beckford, James (1985), Cult Controversies: The Societal Response to New Religious Movements. London: Tavistock.

Berger, Peter (1967), The Sacred Canopy. New York: Doubleday.

Black, Donald (1976), The Behavior of Law. New York: Academic Press.

Borowik, Irena and V. Babinski (1997), New Religious Phenomena in Eastern and Central Europe. Krakow: Nomos.

Borowik, Irena and P. Jablonski (1995), The Future of Religion: East and West. Krakow: Nomos.

Bromley, David (1983), “Conservatorships and Deprogramming: Legal, and Political prospects.” Pp. 267-294 in David Bromley and James T. Richardson (eds.), The Brainwashing/deprogramming Controversy. Lewiston, NY: Edwin Mellen Press.

Bromley, David and Tom Robbins (1993), “The Role of Government in Regulating New and Unconventional Religions.” Pp. 205-240 in J. Wood and D. Davis (eds.) The Role of Government in Monitoring and Regulating Religion in Public Life. Waco, TX: Baylor University.

Cooney, Mark (1994), “Evidence as Partisanship” Law and Society Review 28:833-858.

DeWitt, John, J. Richardson, and Lyle Warner (1996), “Novel Scientific Evidence in Controversial Cases: A Social Psychological Analysis.” Law and Psychology Review 21: 1-26.

Dillon, Jane, and James Richardson (1994), “The “Cult” Concept: A Politics of Representation Analysis.” SYZYGY: Journal of Alternative Religion and Culture 3:185-197.

Ginsburg, Gerald and James Richardson (1998), “Brainwashing” Evidence in Light of Daubert.” Pp. 265-288 in Helen Reece (ed.), Law and Science. Oxford University Press.

Hilberg, Raul (1985), The Destruction of the European Jews Rev. Ed. New York: Holmes and Meier.

Introvigne, Massimo (1994) “The Anti-Cult Movement in Italy”. Pp. 171-198 in A. Shupe and D. Bromley (eds.), Anti-Cult Movements in Cross-Cultural Perspective. New York: Garland.

Kamaras, Istvan (1997), “Devotees of Krishna in Hungary.” Pp. 325-340 in Irena Borowik and Grzegorz Babinski (eds.), New religious Phenomena in Central and Eastern Europe. Krakow: Nomos.

Kidder, Robert (1983), Connecting Law and Society. Englewood Cliffs, NJ: Prentice-Hall.

Kilbourne, Brock, and James Richardson (1984), “Psychotherapy and New Religions in a Pluralistic Society.” American Psychologist 39: 237-251.

Kranenborg, Reender (1994), “The Anti-Cult Movement in The Netherlands: An Unsuccessful Affair.” Pp. 221-238 in A. Shupe and D. Bromley (eds.), Anti-Cult Movements in Cross-Cultural Perspective. New York: Garland.

LeMoult, John E. (1983), “Deprogramming Members of Religious Sects.” Pp. 234-257 in David Bromley and James Richardson (eds.), The Brainwashing/deprogramming Controversy. Lewiston, NY: Edwin Mellen Press.

McFarland, H. Neill (1967), Rush Hour of the Gods: A Study of New Religious Movements in Japan. New York: MacMillan.

Pfeifer, Jeffrey (1995), “The Psychological framing of Cults: Schematic Representations and Cult Evaluation.” Journal of Applied Social Psychology 22: 531-544.

Richardson, James (1986), “Consumer Protection and Deviant Religion”. Review of Religious Research 28: 168-179.

Richardson, James (1991), “Cult/Brainwashing Cases and Freedom of Religion.” Journal of Church and State 33:55-74.

Richardson, James (1992), “Mental Health of Cult Consumers: Legal and Scientific Controversy.” Pp. 233-244 in J. Schumaker (ed.), Religion and Mental Health. New York: Oxford.

Richardson, James (1993a), “Definitions of Cult: From Sociological-Technical to Popular-Negative.” Review of Religious Research 34:348-356.

Richardson, James (1993b), “A Social Psychological Critique of ‘Brainwashing’ Claims and Recruitment to New Religions.” In J. Hadden and D. Bromley (eds.), Handbook of Cults and Sects in America. Greenwich, CT: JAI Press.

Richardson, James (1995a), “Legal Status of Minority Religions in the United States.” Social Compass 42:249-264.

Richardson, James (1995b), “Minority Religions (Cults) and Freedom of Religion: Comparisons of the United States, Europe, and Australia.” University of Queensland Law Review 18: 183-207.

Richardson, James (1996), “Brainwashing Claims and Minority Religions Outside the United States: Cultural Diffusion of a Questionable Concept in the Legal Arena.” Brigham Young University Law Review 1996: 873-904.

Richardson, James (1997), “New Religions and Religious Freedom in Eastern and Central Europe: A Sociological Analysis.” Pp. 257-282 in Irena Borowik and Grzegorz Babinski (eds.), New Religious Phenomena in Central and Eastern Europe. Krakow: Nomos Publishing House.

Richardson, James (1998), “Law and Minority religions: “Positive” and “Negative” Uses of the Legal System.” Nova Religio 2:93-107.

Richardson, James (1999), “Social Control of New Religions: From “Brainwashing” Claims to Child Sex Abuse Accusations.” Pp. 172-186 in Susan Palmer and Charlotte Hardman (eds.) Children in New Religious Movements. New Brunswick, NJ: Rutgers University Press.

Richardson, James (2001), “Legal and Political Status of New Religions in America: Some Lessons for Europe.” Forthcoming in Paula Nesbitt (ed.), Religion and Social Policy. New York.

Richardson, James and Gerald Ginsburg (1995), “The Production of Scientific Evidence.” Paper presented at biannual meeting of Social Justice Research Conference, Reno, NV.

Richardson, James and Gerald Ginsburg (1996), “The Production and Diffusion of Scientific Evidence: Theoretical Issues and Hypotheses.” Paper presented at annual meeting of Law and Society Association, Glasgow, Scotland.

Richardson, James and Massimo Introvigne (2001), “Brainwashing” Theories in European Parliamentary and Administrative Reports on “Cults” and “Sects”, Journal for the Scientific Study of Religion (Summer).

Richardson, James and Marat Shterin (1998), “Legal Battles over Religious Freedom in Russia: Yakunin vs. Dvorkin”. Presented at conference in Krakow, Poland on “Protection of Religious Minorities: Religious Freedom and Human Rights in Post-Communist Europe.”

Richardson, James and Barend van Driel (1994), “New Religions in Europe: A Comparison of Developments and Reactions in England, France, Germany, and the Netherlands.” Pp. 129-170 in A. Shupe and D. Bromley (eds.), Anti-Cult Movements in Cross-Cultural Perspective. New York: Garland.

Robbins, T. (1988), Cults, Converts and Charisma. Newbury Park, CA: Sage.

Rothstein, Mikael (1998), “The Discussion of New Religions in Denmark.” Paper presented at conference on “Debating New religions” in Marburg, Germany.

Shepple, Kim (1996), “A Constitution as the Convergence of Expectations.” Paper presented at annual meeting of the Law and Society Association, Glasgow, Scotland.

Shterin, Marat and James Richardson (1998), “Local Laws Restricting Religion in Russia: Precursors of Russia’s New National Law.” Journal of Church and State 40: 319-342.

Shterin, Marat and James Richardson (2000), “Effects of the Western Anti-cult Movement on Development of Laws concerning Religion in Post-Communist Russia.” Journal of Church and State 42: 247-272.

Shupe, Anson and David Bromley (1980), The New Vigilantes. Beverly Hills, CA: Sage.

Shupe, Anson, and David Bromley (eds.) (1994), Anti-Cult Movements in Cross-Cultural Perspective. New York: Garland.

Witham, Larry (1997), “Austria Law Puts Faiths in Recognition Limbo: Strict Law Sets Up Second-Class Religions.” Washington Times, Thursday, Dec. 11: Al, A12.

Woodward, C. Vann (1974), The Strange Career of Jim Crow. New York: Oxford University Press.

Notes

1 The terms “sects” and “cults” obviously have a pejorative meaning attached to them, with the former being a traditionally negatively connoted term within European settings, while the latter is a negative term for unpopular groups within American culture. See Richardson (1993a) and Dillon and Richardson (1994) for discussion of the term “cult” that have generalizability to the term “sect” within Europe.

2 The exact wording of the portion of the First Amendment dealing with religion is: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;...” As has been noted by many (see Berger, 1967, for instance), this particular clause (or two clauses, actually) derived from the historical fact of pluralism in the fledgling America. People of many different religious persuasions had come to America, many fleeing religious persecution in their homelands. No religious group had the strength of numbers to dominate the new nation, so a compromise was struck in an effort to make sure that such domination could not occur. The compromise was a bit of, “If my group cannot be the chosen church, then neither can any other!” Thus began the great “lively experiment” (to use Sydney Mead’s famous term) of religious freedom in the new nation of America.

3 Another consideration is the fact that most Western European countries have a more developed “welfare state” that both supports citizens throughout their lives and encroaches into those lives to more depth than in many other societies. This encroachment also involves things religious, with Western European governments assuming more responsibility to manage the religious lives of their citizens than is the case in the U.S. for instance. But, even in the U.S. the growth of the liberal and intrusive state in recent decades has contributed to a greater pervasiveness of the legal system in people’s everyday lives, including their religion (Robbins, 1988: 164-168).

4 There are those who would say that the U.S. legal system is dominated by business or economic interests, and that it works to protect those interests, even in the face of Congressional action or Executive authority. This is an intriguing argument, but not one that will be pursued here. It is also worth noting that the United States has two parallel legal systems, the federal one, and the one made up of state court systems. The former has judges who are appointed for life, whereas the latter is predominantly made up of judges who must stand for election every few years. It is obvious that judges who do not stand for election periodically, but who have life-time appointments, can and do exert more autonomy than those who must stand for election. However, it is also important to understand that a case can be in effect transferred to the federal system for a number of reasons, including that one's rights under the federal constitutional have been violated. Also, many states have constitutions modeled after the Federal Constitution, which means that a certain amount of autonomy is built into most state legal systems in the U.S. Thus, it would be a mistake to say that the two systems are completely independent and that state courts have little autonomy.

5 See Richardson (1997) for a comparison of Hungary and Poland that contains a discussion of Schepple’s ideas.

6 Examples of this include the Black Codes established in America after the Civil War to maintain Blacks in a lower position of little power, and the development of so-called “Jim Crow” laws that legalized racial separation within America for a long period of time (Woodward, 1974). South Africa's apartheid regime, which borrowed some ideas from the U.S., is also an example of legal system enforcing status distinctions. Nazi Germany also illustrates this process, with its rapid delegalizing of Jews in the 1930s, moving toward the “ultimate solution” of the holocaust. Scholarship has revealed that these three examples are not independent, and that they share some common elements (Hilberg, 1985).

7 That logic is simply that religious freedom for minority religions requires an autonomous judiciary in order to enforce legal protections for such groups, which are usually unpopular and controversial among the general population and political leaders. If such groups are to be protected within a society, then those doing the protecting must themselves have some degree of protection afforded them in terms of autonomy from external influences.

8 Of course, leaders and citizens in homogeneous societies might make the claim that there was total religious freedom present in their society, since religious affiliation and participation are not problematic. But, the sociologist would perceive this as a situation akin to the statement once attributed to Henry Ford, who set up the world's first assembly-line production of automobiles. He was quoted as saying, “They can have any color of car they want, as long as it is black.” The real test of religious freedom comes when those of different faiths attempt to come into a relatively homogeneous society. Experiments of this nature are occurring all over the Western world today, as people of other faiths such as Islam, Hinduism, and Buddhism attempt to move into societies in larger and larger numbers. Also, the growth of so-called New Religions of various kinds within relatively homogeneous societies is another test of whether religious freedom truly exists in those societies.

9 The phrase is taken from McFarland’s (1967) fine study of the development of new religions in Japan after WWII.

10 This assertion is made in part because of the greater ease of travel, allowing people to move around the world much easier than was the case under communism. However, the primary impetus for continuing pluralism in these societies has to do with means of communication. Globalization of communication with satellites, cable television, fax machines, electronic mail, and the Internet make it virtually impossible to stop the flow of ideas around the globe. Thus, cultural pluralism will grow and a part of that growth involves religions, many of which are extremely sophisticated at using modern means of communication to spread their message.

11 See Shterin and Richardson (1998), Shterin and Richardson, (2000), Richardson and Shterin (1998) on the machinations in Russia, and see Richardson (1997) for a discussion of Poland, as well as other chapters in Borowik and Babinski (1997) and Borowik and Jablonski (1995) for discussions of developments in formerly communist countries.

12 See DeWitt, Richardson, and Warner (1996) and Pfeifer (1995) for experimental studies showing the impact of bias and misinformation on the actions of potential jurors in “cult cases,” and see Richardson (1991), Anthony (1990), and Anthony and Robbins (1992) for discussion of some of these major cases involving “brainwashing” claims against so-called “cults.”

13 Other variables could be discussed as well, such the differences between the adversarial legal system prevalent in the U.S. and the inquisitional legal systems found in most European countries. However, that discussion will be held for another time, although there are obvious ramifications to it for how minority faiths are treated within the two types of legal systems. One major effect to take into account would be the importance to unpopular minority faiths of having an independent advocate for their position such as could be the case within an adversarial system of justice. The interaction of some of the variables discussed in this chapter, such as autonomy of the legal system, with the type of legal system (adversarial versus inquisitional) would yield some important insights.

14 I am not, of course, suggesting that minority faiths always lose legal actions in which they are involved. That is not the case, as the history of religious freedom cases in the U.S. demonstrates. However, when minority faiths do win in the legal arena, such cases require some explanation, and we would suggest that the explanation would entail attention to the kinds of variables discussed herein, and in Richardson and Ginsburg (1995, 1996). See Richardson (199S) for a discussion of situations involving “new religions” and the courts, including some in which the new religions have prevailed.

15 See Richardson (1999) for a discussion of the evolution of social control efforts from those based on brainwashing claims to efforts to use claims of child abuse, including sexual abuse, as a basis for exerting control over newer and more exotic faiths. Note that rules of evidence are usually not as rigorously applied in family court as they are in regular court proceedings.

16 The analogy often given in American law schools is that it is better to break into a house if by so doing one can put out a fire that would consume the house if left unattended. Breaking into the house would, of course, be a technical violation of the law, but you have done a greater good by doing so and thus saving the house from destruction. Thus is law breaking excused under certain circumstances.

17 A related rationale for allowing brainwashing based testimony is that of “consumer protection,” a major movement of the past several decades. Efforts have been made to define religious participation as just another consumer product to be used by people, and if the product turns out to be defined as bad, then the consumer can collect damages. In brainwashing cases, the logic is that a bad religious product was accepted because of the effects of brainwashing and mind control. See Richardson (1986) for a discussion of such legislation in one state.

18 See Ginsburg and Richardson (1998) for a systematic critique of “brainwashing” based testimony in light of a major U.S. Supreme court case laying out guidelines whereby all allegedly scientific evidence is to be assessed. This critique concludes that none of the criteria of the new standard are met with “brainwashing” evidence.

19 A theory that has gained prominence in later years is that the bomb was actually planted by some rogue police, who were trying to gain political favor and a larger budget for certain police operations. The fact that it went off, apparently accidently, and killed some people made it imperative to find a scapegoat, and this was done quickly, using the handy target of a weak but controversial religious group (Richardson, 1995b)

Table des illustrations

Titre FIGURE 1
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Titre TABLE 1. RELATIONSHIP OF AUTONOMY OF THE LEGAL SYSTEM AND CULTURAL VALUES FAVORING RELIGIOUS FREEDOM
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Titre TABLE 2. RELATIONSHIP OF PLURALISM TO RELIGIOUS FREEDOM
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Titre TABLE 3. HIERARCHY OF RELIGIOUS GROUPS USED IN SOME SOCIETIES
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Auteur

Professor of Sociology and Judicial Studies University of Nevada, Reno

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