Tilton v. Marshall

GONZALEZ, Justice,

concurring and dissenting.

My opinion of August 1,1995 is withdrawn and substituted with the following opinion. I now join in the Court’s opinion and judgment insofar as it grants the writ of mandamus.

In balancing the rights of the parties to this suit, Tilton’s right to free exercise of religion prevails over the right of the plaintiffs to proceed with their lawsuit. The trial will significantly burden Tilton’s free exercise rights, which are guaranteed by the First Amendment to the United States Constitution and article I, section 6 of the Texas Constitution. Moreover, while Tilton’s practices are clearly on the fringe, I am concerned that allowing this case to proceed to trial is the first step down a slippery slope that ends with heresy trials in our courts. I therefore agree in full with Justice Hecht’s concurring and dissenting opinion and write separately to articulate additional reasons why the writ should issue as to all causes of action.

Based on extensive pre-trial proceedings, we can predict with confidence how this case will unfold. After the plaintiffs put on their case in chief, Tilton will likely defend himself by testifying that his beliefs are based on the word of God as revealed in the Holy Scriptures and summarized in two documents, “Our Confession of Faith — Statement” and “Word of Faith Family Church and Robert Tilton Ministries — What We Believe.” Tilton will assert that certain principles are central to his religious beliefs: that tithing and the making of “vows” or donations are “expression[s] of trust, obedience [and] devotion ... to the Lord,” that “God wants His children to be prosperous and successful in every area of life ... both spiritually and materially,” and that “prosperity is reached by obedience to the Word of God.” As he did in his deposition, Tilton will declare his beliefs that “God responds to the prayers of the faithful and blesses the faithful with physical, spiritual, and financial prosperity” and that physical ailments and infirmities are healed through spiritual faith. No doubt Tilton will also quote and interpret many verses from the Scriptures as support for his beliefs.

As explained below, it is not merely a possibility but a certainty that litigating the plaintiffs’ claims of fraud and conspiracy will impermissibly test the truth or falsity of Tilton’s religious convictions. Notwithstanding this Court’s admonitions to the trial court, there is no way to avoid inquiry into the truth or falsity of Tilton’s assertions about God, the effect of prayer and donations, and the meaning of various verses of The Bible.

Consider the fraud theory of recovery. The elements of a fraud claim are: (1) the speaker made a material representation; (2) the representation was false; (3) when the speaker made the representation he knew it was false or he made it recklessly without any knowledge of its truth or falsity; (4) the speaker’s intention was that the other party should act upon the representation; (5) the other party acted in reliance upon the representation; and (6) the other party was injured. T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 222 (Tex.1992). To prove their fraud claims, the plaintiffs thus must establish that the statements on which they base their claims were false. As the Court describes the plaintiffs’ pleadings, Til-ton knowingly and falsely represented that he would read their prayer requests, that he would “touch” them and their “vows” or donations, and that he would pray that their prayers be answered. In some Christian denominations, these representations could mean reading a summary of prayer requests without actually seeing the prayer requests themselves, touching without physical contact, or touching a mass of prayer requests and praying. This law suit will thus be transformed into a trial on doctrinal or theological differences between denominations.

Moreover, the Court truncates the basis for the plaintiffs’ fraud claims. The plaintiffs have not pleaded fraud simply because Tilton did not read, touch, and pray over their letters and donations. Rather, the substance of their fraud claim is that because Tilton did not do what he said he would do, God did not *685 help them. 1 Tilton represented that he would take certain actions and that, because he was a “prophet of God” to whom God would speak about each supplicant, God would answer their prayers. The plaintiffs’ counsel characterized the fraud claim in precisely these terms at oral argument.

In attempting to prove the falsity of Til-ton’s representations, the plaintiffs recognize that they cannot avoid delving into the truth of God’s role in what Tilton promised. Their counsel stated when questioned:

A So he gets all of these people out here to start sending their money in under the representations that he has made, and then it doesn’t happen_ Be-

cause if he is a prophet of God as he says he is, and these things he says are true and correct ... and the miracle didn’t happen, so this man is a con artist and a fraud.

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Q He just says he is going to ask God to do these things. But he doesn’t make a commitment on God’s behalf that it will take place?

A Nobody needs a guarantee from a prophet of God.

Q And that’s what the case is about?

A Right.

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Q Counsel, I am still confused about the extent to which you are going to try Mr. Tilton’s personal faith and his subjective belief. You said here today in response to questions that the sincerity of his belief is an issue in this case. You have told us that, have you not?

A I said that I think we are entitled to look at that issue.

Q But on page 4 of your brief to this court, you said that opposing counsels have blatantly misstated and mischarac-terized your claims and position. “Plaintiffs do not question Tilton’s sincerity of religious belief, but rather question whether Tilton even considers his conduct to be of a religious nature.” Do you stand by this' distinction that’s in footnote 5 of your brief? What is that distinction?

A No, I don’t stand by it. I didn’t write it, and I don’t stand by it....

Clearly the plaintiffs fully intend to have a jury determine whether Tilton’s beliefs are true or false. Although at one point the plaintiffs’ counsel denied that the issue for trial was whether Tilton “is in fact a prophet of God,” his explanation proves the contrary: “I am saying he [Tilton] is making false misrepresentations ... he is gaining their confidence by telling these people he is a prophet of God.” Adjudging whether Til-ton’s representations were true or false would draw the jury inexorably into deciding whether he is truly a prophet of God who spoke for God on whether the plaintiffs’ prayers wotdd be answered. Clearly, secular courts can neither competently nor constitutionally determine the truth or falsity of promises about what God will do. The United States Supreme Court has concluded as much, writing that civil courts should exercise no jurisdiction in matters which concern “theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required of them....” Watson v. Jones, 80 U.S. (13 Wall) 679, 738, 20 L.Ed. 666 (1871); see also Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 723 , 96 S.Ct. 2372, 2387 , 49 L.Ed.2d 151 (1976) (expressing the general rule that “religious controversies are not the proper subject of civil court inquiry”).

As further evidence that trial of the fraud claims will necessarily involve determining the truth or falsity of religious doctrine, I draw the Court’s attention to the probable jury charge. It will inquire, “Did Tilton commit fraud against the plaintiffs?” and will instruct that fraud includes the making of a “material misrepresentation.” 4 State Bas of Texas, Texas PatteRN Jury Charges PJC 105.01-.02 (1990). Under the facts of this case, the jury will also likely be instructed that Tilton made misrepresentations if he made a “false statement of fact,” a “promise of future performance made with an intent not to perform as promised,” a “statement of *686 opinion based on a false statement of fact,” or an “expression of opinion that is false, made by one claiming or implying to have special knowledge ... superior to that possessed” by the plaintiffs and to which the plaintiffs “did not have equal access.” Id. at PJC 105.021A-.021C, PJC 105.021E.

To proceed to trial under the facts of this case will substantially burden Tilton’s right to free exercise of religion. The First Amendment to the United States Constitution and article I, section 6 of the Texas Constitution afford broad protection to the free exercise of religion. 2 The judiciary may not inquire into the “truth or verity of ... religious doctrines or beliefs.” United States v. Ballard, 322 U.S. 78, 86 , 64 S.Ct. 882, 886 , 88 L.Ed. 1148 (1944). Hence, no claim of fraud may be made if it rests on a representation of religious doctrine or belief, even if the statement was insincerely made. See Van Schaick v. Church of Scientology of Cal., Inc., 535 F.Supp. 1125, 1142-43 (D.Mass.1982); Molko v. Holy Spirit Ass’n for the Unification of World Christianity, 46 Cal.3d 1092 , 252 Cal.Rptr. 122 , 762 P.2d 46, 58 (1988); Christofferson v. Church of Scientology of Portland, 57 Or.App. 203 , 644 P.2d 577, 598 (1982); Weiss, Privilege, Posture and Protection: “Religion” in the Law, 73 Yale L.J. 593 , 607 (1964) (stating that, if allowed, courts’ adjudications of the truth or falsity of religious doctrines or beliefs result in “heresy trials”). Upon the proper facts, undoubtedly a religious leader may be held accountable for fraud, the same as any other defendant. But when allegations of fraud require the jury to pass judgment on whether matters of religious faith are true or false, no court can resolve the issues without impinging on religious freedoms.

I lastly consider the plaintiffs’ causes of action against Tilton for civil conspiracy. I agree with the Court that a conspiracy claim is derivative because liability can arise only if a defendant or a co-conspirator participated in underlying unlawful acts. 925 S.W.2d at 681. In this case, the unlawful overt acts that the plaintiffs have alleged were that Tilton participated in defrauding them and in intentionally inflicting emotional distress on them. Thus, to prove their civil conspiracy claims, the plaintiffs must again show the elements of the underlying torts, plus that Tilton personally participated in them. As they must with the claims for fraud, the plaintiffs will have to persuade the jury that Tilton made false statements. As explained above, inquiring whether Tilton made false statements requires a judgment on the truth or falsity of religious beliefs and convictions. Such inquiries are constitutionally impermissible.

Proceeding to trial is an irremediable abuse of discretion which we should avert by issuing a writ of mandamus. Despite the Court’s admonitions, there is no way to avoid turning this case into a heresy trial that will have a chilling effect on the free exercise of religion in this state. By denying Tilton’s petition for a writ of mandamus and allowing this trial to proceed, the Court opens the door to governmental intrusion into the personal religious beliefs of our citizens.

For these reasons and those in Justice Hecht’s opinion, I would grant Tilton’s petition for writ of mandamus in all respects.

. It is possible that God answered the plaintiffs’ prayers but that they did not like His answer.

. The Texas Constitution provides:

All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences. No man shall be compelled to attend, erect or support any place of worship, or to maintain any ministry against his consent. No human authority ought, in any case whatever, to control or interfere with the rights of conscience in matters of religion, and no preference shall ever be given by law to any religious society or mode of worship....

Tex Const, art. I, § 6 (emphasis added).