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.

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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.

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Paul Green Dissent in Pleasant Glade v. Schubert  (Tex. 2008)

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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

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[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.