The Coming Nuclear Attack
on Christianity in America
J. Shelby Sharpe
Editor's Note: This article is excerpted and reprinted from the October, 1989, No.291 issue of Chalcedon, P.O. Box 158, Valecito, CA 95251.
It is of crucial importance for all Bible-believing Christian churches, schools, organizations and ministries. We urge our readers to bring it to the attention of pastors, elders, Christian counselors and others in Christian leadership positions. Christian attorneys need to prepare for this escalating attack by litigation, which will soon require their informed and courageous services.
Christianity in America is increasingly coming under attack by civil government regulation and litigation. Recently, private litigants have begun to bring suit against the church and Christian ministries. All signs paint toward a rapid escalation of these attacks on both fronts in the very near future. The primary focus at this paper will center on tort litigation which was the subject of a seminar conducted May 4 and 5, 1989 in San Francisco, sponsored by the Section of Tort and Insurance Practice, Section of Individual Rights and Responsibilities and the Division for Professional Education of the American Bar Association.
Overview of the ABA Seminar
At the top of the ABA brochure advertising The seminar was the very distressing statement that the seminar was for "Attorneys who want to be an the leading edge of an explosive new area of law. Christianity was placed on notice that there is a new area of law coming against it, and it is explosive. The new weapon is the tort suit, and it was described by several of the speakers as a nuclear weapon. Shockingly, it is the American Bar Association, the most prestigious legal organization in the United States, not the American Civil Liberties Union, that is taking the lead in training the trial lawyers of America, whose usual activity is seeking large monetary judgments in persona injury and wrongful death litigation, to fire this new weapon at religious organizations and individuals within those organizations. In evaluating this criticism of the American Bar association, consider that the opening subject area was entitled Expanding Use of Tort Law Against Religions. This set the tone for the entire seminar. The first speaker under this topic was a trial lawyer who entitled his presentation "Tort Law as an Ideological Weapon". He was followed by another trial lawyer who spoke on "Tort Law as Essential Restraint on Religious Abuses". The whole thrust of these presentations was how tort law was and would de used against religious organizations and individuals. War has been declared, and Christianity is in a fight to the death.
Should one think the assessment is overstated, consider that the second subject was entitled "Emerging Theories of Tort Liability". Topics covered were `Liability of Clergy as Spiritual Counselors, `Tort Liability for Fraud. Emotional Distress and Harm to Reputation Arising From Religiously Motivated Conduct," "Tort Liability for Brainwashing. `Liability for Sexual Conduct of the Clergy, `Institutional Liability for Negligent Hiring/Retention" and " Liability Arising Out of the Employment Relationship. While civil government has primarily concentrated on trying to keep Christianity out of the public areas of our nation, the tort suit is aimed with in the four walls of the church to contain money judgments for conduct considered detrimental to society. This goes to the very heart of Christian ministry.
The final subject area of the seminar addressed tact as in ligating these suits and how to collect the damages anticipated being recovered through the judgments. The most chilling presentation under this topic was entitled "Piercing the Corporate Veil- ~ Liability of Religious Bodies and Affilated Entities. Every trial lawyer knows that the purpose of seeking to "pierce the corporate veil is to remove the institutional protect on from individual liability. Success in this area exposes the personal assets of individuals who are a part of an organizatian.
What is a Tort?
A tort is defined as a private or civil wrong or injury independent of contract.... A tort claim usually has three elements. First, there is a legal duty to others. Second, there is The breach of that duty. And. finally. there are damages as a proximate result of the breach of that duty. . . these kinds at suits have the potential for huge monetary judgments with great destructive power. Even if one successfully defeats one of these suits, the attorney's fees and costs n successfully defending the suit can reasonably range between $20,000 and $250.000 or more.
The threat of the tort suit to Christianity is found in the first element deal1ng with duty. Duties are created by either legislative enactments or court decisions. The latter category has produced the greatest expansion of tort law because judges in recent decades have been creating new duties based upon what they perceive to of societal norms. Thus, as society becomes more ungodly and antagonistic toward Christianity, the courts will create new duties and become more receptive to entertaining litigation brought against Christians and Christian organizatians.
Tort Liability for Brainwashing, Coercive Persuasion or Mind Control
Tort liability for brainwashing, coercive persuasion or mind control `5 unquestionably the most dangerous and sinister threat to God's people because it goes to the heart of orthodox Christianity. The Supreme Court of California in Molko v. The Holy Spirit Association for Unification Church for Worldwide Christianity declared that there is a compelling state interest in preventing its citizens from unknowingly being subjected by religious organizatons to coercive persuasion, brainwashing or mind control. The court defined this activity as "a forcible indoctrination to induce someone to give up basic political, society or religious beliefs and attitudes and to accept contrasting regimented ideas. One would think "forcible" refers to physical force or the threat of it. However, the plaintiffs in the Molko case were never physically coerced to listen to the teachings which they ultimately embraced for a period of time. The court wrote that when a person is subjected to coercive persuasion w1thout his know edge or consent" this was sufficient to give the state on interest authorizing its courts to entertain such litigation (252 Cal. Rpfr.736)....
II Corinthians 10:5 teaches that "every thought is to be taken captive to the obedience of Christ. Repentance, which is essential to eternal salvation, is by a change of mind and heart. When an unbeliever recognizes his or her true condition, emotional distress is usually experienced followed by a change of behavior as a result of the presence of the Holy Spirit coming to dwell in the new believer. This whole process satisfies all of the elements of the tort of brainwashing, coercive persuasion or mind control. it may be alleged
Acceptance of this tort by the courts of our nation will threaten every church and Christian ministry (Richard) Delgado (professor of law at the University of Wisconsin School of Law) argued that the judge and jury are sufficient restraints to prevent legitimate conduct from being punished. This is sheer nonsense. The only true protection IS to prevent a judge and jury from even reviewing such conduct. The dynamics of any Christian meeting could be found to satisfy guilt manipulation, indoctrination, fear inducement and peer pressure. Iris argued that no religious group has a constitutionally protected right to commit a tort. This argument is only as good as the definition of Tort Constitutional protection of activity long held to be lawful can be lost because of society's changing concept of detrimental conduct. For example, the right of a religious body to fire a homosexual because it goes against its interpretation of the Bible has been upheld in the past. In The future, such action could result in a judgment in favor of the homosexual, based upon a court finding that religious beliefs violate a duty not to discriminate because of sexual conduct. The current trend suggests this will happen in the not too distant future.
Fundamentally, there should be no tort based upon the communication of religious information where there is no physical restraint or threat of such to the hearer. Tragically however, religious conversions are now being evaluated by scientists and doctors to determine those they consider normal and abnormal. Their measure of normal behavior is now determined largely by criteria divorced from Biblical principles. Psychiatric testimony... is now the most powerful and persuasive force in the courtroom on the issues of acceptable behavior. Thus, a genuine Christian salvation experience could one day cost a church a huge sum of money Intentional Infliction of Emotional Distress Intentional infliction of emotional distress is a relatively new tort.... An anti-Christian society will almost surely find a Sunday School teacher giving a lesson to young children on Jesus' teachings on Hell and eternal separation to satisfy the element. A proper understanding of Jesus' teaching in this subject should cause emotional distress. Anyone who properly understands the gospel message will experience emotional distress Therefore, this doctrine, like brainwashing, coercive persuasion, mind control and fraud, can be used to strike at the core of orthodox Christianity.
Liability of Clergy as Spiritual Counselors
Counseling is and will continue to be for the foreseeable future a high risk area ... If counseling is to take place, it must be done wisely. For example, a male should not counsel a female without a third-party female being present. Preferably, a more mature woman should counsel a younger woman. Precautions must be taken to head off the false accusations or the actual occurrence of sin arising out of counseling.
The recent Supreme Court of California decision in Nally v Grace Community Church of the Valley is significant because it holds that community standards are to be used in measuring pastoral counseling. A fundamental premise in Nally is that counseling based on Biblical principles is inferior to secular counseling. Unfortunately, many Christians accept this false view.
One significant observation (lead counsel Ed Barker) made which must be viewed very seriously is that the news media should write articles in the community on clergy malpractice prior to the suit going to trial. This was a part of his effort to lay a foundation in the community for a standard of review he wanted to use during the trial...
Christian counselors should not have duties imposed upon them which are non-Biblical. By imposing non-Biblical standards, the court is intruding into the relationship of the counselor and the one being counseled. ... This control at the counseling is no different than similar control of the content of sermons which would amount to an unconstitutional invasion into the church
Another ramification of imposing a secular duty would force the religious counselor to either seek a different source for help in counseling or to provide help in a different fashion. This places judges and juries in control of spiritual counseling.
Liability for Sexual Misconduct of the Clergy
Sexual misconduct of the clergy is not new. The lawsuits are new. The suits which are being brought go beyond the person guilty of the sin to include the church or the religious organization... The trial lawyers have ingeniously devised the doctrine of "clergy malpractice. This doctrine does not require proof that the employee was acting within the course and scope of employment.... By its very nature, clergy malpractice falls within the "scope of employment" and the employer is vicariously liable.
There are same courts which are beginning to change the requirements of "course and scope of employment", to prevent the institutions from avoiding liability for the employee's sinful conduct. Such activity on the part of the courts is nothing more than finding liability where none has previously existed before.
Piercing the Corporate Veil--Liability of Religious Bodies
Several of the attorneys during the seminar made it clear that they were looking for deep pockets" in litigation involving religious organizations. Deep pockets con only mean the organization. Therefore, the trial lawyers will seek to persuade the courts to apply to religious organization theories of liability currently established against non-religious organizations. Several of those theories are: negligent hiring, negligent retention of an unfit employee, and failure to properly supervise..,. The general trend of court decisions concerning the church and its ministries would indicate that at some point the courts will embrace one or more of these theories....
In order for trial lawyers to get to the "deep pockets" they seek, "piercing the corporate veil" is another of those theories.,.. Thus, a trial lawyer will examine the assets of the individual who has committed the wrong conduct, then look at the assets of the organization, and finally, look at the assets of the individuals who are responsible for the organization. This gives the trial lawyer three target areas to go after for a large monetary recovery consider the following scenario: The pastor of a local congregation fires a staff member who confesses to being a practicing homosexual. Suit is brought against the pastor, the church, the individuals constituting the leadership body of the church and the denominational organization to which the local church is accountable. This iatter organization has insisted that the churches related to it must not permit any individual to be on staff of a local church who is a practicing homosexual.
The legal foundation for such a suit is found in Barr v. United Methodist Church. et al. In Barr, a suit was brought against Pacific Homes Corporation, a California not-for-profit corporation which operated14 retirement homes in Southern California, and the United Methodist Church, which was related to it The Court of Appeals in California treated the United Methodist Church as an unincorporated association under California law and ruled that any form of agency, sponsorship or control sufficed to subject it to liability far the activity of one of its affiliated agencies. This ruling has awesome ramifications for the major denominations and other Christian organizations in the United States,
While the seminar did not specifically address the church discipline situation, this is obviously another area of tart liability exposure. Those churches who do follow Biblical discipline are definitely targets far future litigation. Those suits will come as either invasion of privacy or intentional infliction of emotional distress or both.
Deserved and Undeserved Attacks
The days ahead will unquestionably bring many attacks upon God's people. Some of those will be well deserved and others will be the consequence of serving God in an antagonistic, ungodly society. When Christians violate God's Word, they can expect judgment in many forms. The Ungodly world is increasingly treating Christians with greater severity for not practicing what they preach. Thus, it is imperative that believers see the wisdom of living in obedience to God, not only because it pleases Him, but because it provides the best defense when litigation comes. Jesus commanded His disciples in Matthew 5 to be "salt and light to the world" in which we live or be "trampled under foot by men." The failure of prior generations, as well as our own generation, to obey this command has brought upon God's people this consequence. This is another illustration of how one part of the body affects the whole, be it for good or for bad.
Preparation for Defense
Currently. God's people are almost completely unprepared to defend themselves. Now is the time for the defenses and counterclaims to be researched and prepared for the suits which can be anticipated,
God told Ezekiel that He had appointed him a watchman and he was obligated to warn the people of the danger coming or their blood "I will require at your hand," We can identify with Ezekiel's position because we have seen the danger which is coming and we do not wish to be guilty of failing to give warning God has laid on our hearts. We pray those who hear this warning will respond as God directs.