Dissent by Justice Paul W. Green in Pleasant Glade Assembly of God v. Laura Schubert (Tex. 2008) opposing tort immunity for church defendants under the First Amendment in Texas exorcism case The gist: This case is not about sanctioning voluntary religious practices. If Schubert had consented to the church’s actions, the consent—under our familiar, neutral principles of tort law—would have completely defeated her claims. ... When faced with an otherwise valid tort claim, Pleasant Glade’s religious motivation is not a defense. ════════════════════════════════════════════════════ Pleasant Glade Assembly of God v. Schubert, No. 05-0916 (Tex. 2008) (Majority Opinion by Justice Medina) (constitutional law, church and state, first amendment freedom of religion protects church's activities related to exorcism of demons made the basis of intentional tort suit by church member who sought recovery for mental anguish and distress damages; Religious practices (such as laying hands on the person possessed by the devil) were too closely related to religious doctrine and made the two inseparable; court extends protection to the tortious acts because it cannot delve into the correctness of the beliefs upon with the practices are based and plaintiff sought damages for mental anguish caused by the religious rituals, rather than compensation for physical injury. PLEASANT GLADE ASSEMBLY OF GOD, REVEREND LLOYD A. MCCUTCHEN, ROD LINZAY, HOLLY LINZAY, SANDRA SMITH, BECKY BICKEL, AND PAUL PATTERSON v. LAURA SCHUBERT; from Tarrant County; 2nd district (02-02-00264-CV, 174 SW3d 388, 09-15-05) 3 petitions | motion to strike denied The Court reverses the court of appeals' judgment and dismisses the case. Justice Medina delivered the opinion of the Court, in which Justice Hecht, Justice O'Neill, Justice Wainwright, Justice Brister, and Justice Willett joined. Chief Justice Jefferson delivered a dissenting opinion, in which Justice Green joined, and in Parts II-A, III, and IV of which Justice Johnson joined. Justice Green delivered a dissenting opinion. Justice Johnson delivered a dissenting opinion. ════════════════════════════════════════════════════ Paul Green Dissent in Pleasant Glade v. Schubert (Tex. 2008) ════════════════════════════════════════════════════ Argued April 12, 2007 Justice Green filed a dissenting opinion. [see pdf version on court's website (2 pages)] Because the fundamental principles of Texas common law do not conflict with the Free Exercise Clause, courts can and should decide cases like this according to neutral principles of tort law. See Employment Div., Dep’t of Human Res. v. Smith, 494 U.S. 872, 876–90 (1990); Jones v. Wolf, 443 U.S. 595, 602–06 (1979). If a plaintiff’s case can be made without relying on religious doctrine, the defendant must be required to respond in kind.[1] Though not always a simple task for courts, “the promise of nonentanglement and neutrality inherent in the neutral-principles approach more than compensates for what will be occasional problems in application.” Jones, 443 U.S. at 604. In contrast, today’s decision ignores the rule that “courts must not presume to determine the place of a particular belief in a religion or the plausibility of a religious claim,” Smith, 494 U.S. at 887, replacing it with a far more dangerous practice: a judicial attempt to “balance against the importance of general laws the significance of religious practice,” id. at 889 n.5. “The First Amendment’s protection of religious liberty does not require this.” Id. at 889. The trial court heeded these admonishments, but the Court today does not. For these reasons, and for those expressed by the Chief Justice, I respectfully dissent. _________________________ PAUL W. GREEN JUSTICE OPINION DELIVERED: June 27, 2008 -------------------------------------------------------------------------------- [1] This case is not about sanctioning voluntary religious practices. If Schubert had consented to the church’s actions, the consent—under our familiar, neutral principles of tort law—would have completely defeated her claims. See Tex. Penal Code § 22.01(a) (assault elements); Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex. 2002) (false imprisonment elements); Restatement (Second) of Torts § 892A (1979) (effect of consent); cf. Tex. Bank & Trust Co. v. Moore, 595 S.W.2d 502, 508 (Tex. 1980) (consent as a matter of law). The jury, however, found that Schubert had not consented, and Pleasant Glade does not challenge that conclusion. When faced with an otherwise valid tort claim, Pleasant Glade’s religious motivation is not a defense. See Smith, 494 U.S. at 876–90. |