Court of Appeal, Second District, California

“ Or assume another Wollersheim sued another church for a similar emotional injury on grounds his mental illness had been triggered by what a cleric told him about his sins during a confession - or series of confessions. It is one of the functions of many religions to “afflict the comfortable” - to deliberately generate deep psychological discomfort as a means of motivating “sinners” to stop “sinning.” Whether by “hell fire and damnation” preaching, “speaking in tongues,” private chastising, or a host of subtle and not so subtle techniques religion seeks to make us better people. ”

“ Nor have we found any cases suggesting the free exercise clause can justify a refusal to honor financial obligations the state considers binding and legally enforceable. One can only imagine the utter chaos that could overtake our economy if people who owed money to others were entitled to assert a freedom of religion defense to repayment of those debts. It is not unlikely the courts would soon be flooded with debtors who claimed their religion prohibited them from paying money they owed to others. ”

“ On balance, the religious freedom consideration outweighs any concern about spreading the cost of emotional injury, reducing the frequency of such emotional injuries, and the like. It is one thing to say we will impose liability when a religious organization intentionally or recklessly sets out to ruin a business or to reveal confidential information or to “audit” mercilessly or to “disconnect” a psychologically weak person from his family and thereby succeeds in emotionally injuring a member or former member of that religion. ”

“ The evidence establishes Wollersheim was coerced into remaining a member of Scientology and continuing with the auditing process. Constitutional guaranties of religious freedom do not shield such conduct from civil liability. We hold the state has a compelling interest in allowing its citizens to recover for serious emotional injuries they suffer through religious practices they are coerced into accepting. Such conduct is too outrageous to be protected under the Constitution and too unworthy to be privileged under the law of torts. ”

“ There was substantial evidence here from which the jury could have concluded Wollersheim was subjecting himself to auditing because of the coercive environment with which Scientology had surrounded him. To leave the Church or to cease auditing he had to run the risk he would become a target of “fair game,” face an enormous burden of “freeloader debt,” and even confront physical restraint. A religious practice which takes place in the context of this level of coercion has less religious value than one the recipient engages in voluntarily. ”

“ Since we hold religious organizations owe no duty to members or former members with respect to these forms of injury, the cause of action for negligent infliction of emotional injury must be reversed. We need not, however, reverse the entire judgment.
Here, the jury found the Church liable for both negligent and intentional infliction of emotional distress. As we discussed above, there is substantial evidence to support a finding on the intentional infliction theory. ”

“ In this context, Scientology is responsible only if it or any other religion could be held liable where through inadvertence something it or its leaders did damaged someone's business and thereby caused the businessman emotional injury. Or if it or any other religion could be held liable where it inadvertently revealed some information a member had disclosed in *901 confidence as part of a religious practice like auditing or a confession. ”

“ Freedom of belief is absolutely guaranteed; freedom of action is not. Thus government cannot constitutionally burden any belief no matter how outlandish or dangerous. But in certain circumstances it can burden an expression of belief which adversely affects significant societal interests. To do so, the burden on belief must satisfy a four-part test. ”

“ A person who stayed in the Church for five years could easily accumulate a “freeloader debt” of between $10,000 and $50,000. Wollersheim was familiar with the “freeloader debt” policy as well as the “fair game” policy. He also knew the Church was recording the courses and auditing sessions he was receiving at the discounted rate. The threat of facing that amount of debt represented a powerful economic sanction acting to coerce continued participation in auditing as the core religious practice of the Church of Scientology. ”

“ Holy Spirit Assn., supra, 46 Cal.3d 1092, 1114, a Catholic priest sued a Catholic organization and an ordained priest for false imprisonment when the plaintiff was restrained in an asylum run by the Catholic Church to compel his confession to criminal acts. The practice of confessing one's sins is an established religious practice of the Catholic church. But that did not immunize the defendants from liability for harm the plaintiff suffered where the religious practice was imposed on him in a coercive environment. ”

“ There is an element present in the instant case, however, that reduces the religious value of the “auditing” practiced on Wollersheim and increases its harm to the community. This is the element of coercion. Scientology, unlike most other religions or organizations claiming a religious purpose, uses various sanctions and the threat of sanctions to induce continued membership in the Church and observance of its practices. ”

“ But it does place a burden on Scientologists should they act on that belief. Scientology would be subject to possible monetary loss if someone suffers severe psychological harm during auditing where that auditing is conducted under the threat of these sanctions. Likewise, Scientology may lose some staff members and upper level auditors who would not continue in the Church or continue to submit to the core practice of auditing except for their fears of retribution. ”

“ FN8. “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352, italics added.) In reviewing the trial court's exercise of its discretion under section 352, appellate courts traditionally give great deference to the trial court's evaluation of relevance versus prejudice. ”

“ Moreover, some of the evidence introduced at the trial related to acts relevant to issues of appellant's state of mind (intent, motivation, and the like) and whether respondent was voluntarily participating in Scientology's practices or was doing so within a coercive environment. Accordingly, the instruction as requested would have been misleading to the jury. The trial court gave an instruction which set forth the elements of the cause of action. ”

“ Reformed Mennonite Church, supra, 341 A.2d 105 [religion may be civilly liable to shunned former member because “shunning” must yield to compelling state interest in promoting family relations] .) Whether or not the “disconnect” policy is constitutionally protected when practiced in a voluntary context it is not so protected if practiced in the coercive environment appellant imposed on Wollersheim. The reasons are the same as apply to “auditing.” (See pp. 893-898, ante.) ”

“ Here Scientology used coercion - “fair game,” “freeloader debt,” and in this instance, at least, physical restraint, along with the threat one or more of these sanctions will be deployed - to prevent its members from leaving the Church. This coercion is similar to the coercion found in Molko and far different from the threat of divine retribution our Supreme Court held was nonactionable. (46 Cal.3d at pp. 1120, 1122 [“To the extent the claims are based merely on threats of divine retribution if [the plaintiffs] left the church, they cannot stand”] .) ”

“ The subsequent cases interpreting these four words make it clear that while the free exercise clause provides absolute protection for a person's religious beliefs, it provides only limited protection for the expression of those beliefs and especially actions based on those beliefs. ”

“ Although these payments actually were going to a factor not Wollersheim, the effect was to deprive Wollersheim of the line of credit he needed to continue in business.
Appellant argues these “fair game” practices are protected religious expression. They cite to a recent Ninth Circuit case upholding the constitutional right of the Jehovah's Witness Church and its members to “shun” heretics from that religion even though the heretics suffer emotional injury as a result. ”

“ These policies violate the establishment clause unless they survive a three-part test. They must have a secular purpose. Their primary effects must be ones which neither advance nor inhibit religion. And they must avoid any excessive entanglements with religion. ”

“ Third, plaintiff claims that defendant 'attacked plaintiff's business' and induced those of his employees who were Scientologists to leave his employ. [¶] Fourth, plaintiff claims that defendant disclosed his auditing files in disregard of alleged promises of confidentiality to persons not authorized to receive them. [¶] All of these acts were allegedly undertaken to inflict severe emotional distress upon the plaintiff. [¶] The plaintiff is restricted in this case to the claims he set forth in his complaint. ”