Opposition Brief — Murphy v. I. S. K. Con. of New England, Inc.

Supreme Court, U.S.

FILED

' AUG 30 1991

No. 91-191 OFFICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1991

e- —

SUSAN MURPHY & MARY MURPHY,

Petitioners,

1.S.K.CON. OF NEW ENGLAND, INC.,

Respondent

— —*

Petition For A Writ Of Certiorari To The

Supreme Judicial Court Of Massachusetts

.

RESPONDENT’S BRIEF IN OPPOSITION TO THE

PETITION FOR A WRIT OF CERTIORARI

er

Davip M. L!sERMAN

Counsel of Record

2049 Century Park East

Suite 3160

Los Angeles, California 90067

(213) 277-9288

Davip L. KELSTON

FRIEDMAN & ATHERTON

Nineteenth Floor

28 State Street

Boston, Massachusetts 02109

(617) 227-5540

Counsel for Respondent

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Whether the Supreme Judicial Court of Massa-

chusetts correctly held that a cause of action for inten-

tional] infliction of emotional distress may not, under the

First Amendment, be predicated upon the content of a

religious organization’s core beliefs and teachings.

2. Whether the Supreme Judicial Court correctly

held that the First Amendment requires appellate courts

to independently review the record of a case and to

reverse any cause of action which may, even in part, have

been based upon constitutionally protected practices.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ..................... i

TABLE OF AUTHORITIES......................... iii

STATEMENT OF THE CASE....................... 1

REASONS FOR DENYING THE WRIT............. 6

I. TORT LIABILITY FOR EMOTIONAL DISTRESS

MAY NOT BE PREDICTED UPON THE CON-

TENT OF RELIGIOUS BELIEFS................ 8

Il. LIABILITY FOR TORTIOUS CONDUCT MAY

NOT BE IMPOSED IF THE DEFINITION OF

THE TORT GIVEN TO THE JURY ENCOM-

PASSES CONSTITUTIONALLY PROTECTED AS

WELL AS UNPROTECTED CONDUCT......... 11

CONCLUSION

iii

TABLE OF AUTHORITIES

Page

Cases

Bose Corp. v. Consumers Union, 466 U.S. 485 (1984) .... 12

Epperson v. Arkansas, 393 U.S. 97 (1968) ............. 10

Founding Church of Scientology v. United States, 409

F.2d 1146 (D.C. Cir.) (opinion on rehearing),

0) 12

Fowler v. Rhode Island, 345 U.S. 67 (1953)............ 11

McDaniel v. Paty, 435 U.S. 618 (1978)................ 10

Murphy v. 1.8.C.Con. of New England, Inc., 409

Goa bis sche. sce ee ase. passim

NAACP v. Claiborne Hardware Co., 458 U.S. 886

SS 10, 12

Organization for a Better Austin v. Keefe, 402 US.

ye ob socks scscersccssccscee 10

Presbyterian Church v. Hull Church, 393 U.S. 440

ASS 10

Sherbert v. Verner, 374 U.S. 398 (1963) ............... 10

Street v. New York, 394 U.S. 576 (1969) .............. 12

Stromberg v. California, 283 U.S. 359 (1931)........... 12

Thomas v. Review Bd., 450 U.S. 707 (1981)......... 10, 11

Torasco v. Watkins, 367 U.S. 488 (1961)............... 10

United States v. Ballard, 322 U.S. 78 (1943)........... 10

Wisconsin v. Yoder, 406 U.S. 205 (1972)............... 11

Zorach v. Clausen, 343 U.S. 306 (1958) ............... 10

STATEMENT OF THE CASE

1. Respondent, International Society for Krishna

Consciousness of New England, Inc.,! is a religious cor-

poration organized in February, 1974, for the purpose of

propagating the Krishna Consciousness religion in the

New England area. Appendix 87-89.2 At the time of

defendant's incorporation,’ plaintiff Susan Murphy was

living in Pittsburgh, Pennsylvania with her boyfriend,

Doug Hewer. A 1161.4 The two were associated with the

Krishna temple located there. a

1 For purposes of clarity, respondent will hereinafter be

referred to as “defendant” or “ISKCON, N.E.” Petitioners will

be referred to as “plaintiffs”.

2 Appendix (hereinafter “A”) refers to the Appendix filed

in the Supreme Judicial Court. A Supplemental Appendix was

also filed in the Supreme Judicial Court, which will hereinafter

be referred to as “SA”.

3 In May, 1986, plaintiffs moved to.amend their complaint

to hold defendant liable for allegedly tortious activity pre-

ceding its incorporation. The motion was denied by the trial

court on August 7, 1986, based upon a finding of undue delay

by the plaintiffs, undue prejudice to the defendant, and the

legal futility of the plaintiffs’ proposed amendment. SA 40-52.

The trial court’s ruling was upheld by the Supreme Judicial

Court. Pet. App. 56; 409 Mass. 842, 864, which is a state law

matter not reviewable by the present proceedings. Accordingly,

defendant’s statement of the case is limited to the post-incor-

poration period, except where reievant to the current petition.

4 Susan first met Doug, who had an off-again, on-again

relationship with the religion, e.g., A 2418-419, 2436-439, some-

time in the summer of 1972. They became girl friend and boy

friend that Fall.

In July or August, 1974, Susan and Doug returned to

the Boston area to assist Susan’s mother, Mary, with a

legal problem unrelated to the present case. A 764. At this

time, they lived in a rented apartment in Brookline, A

764, and began visiting and participating in the activities

of ISKCON N. E.’s temple located in Boston. A 765-67.

After about one month, Susan and Doug moved into

the private apartment of Traidas and Pranada, two mem-

bers of the Boston temple. Susan testified that Traidas

was president of the temple at this time. A 807. While

living with Traidas she continued to visit the temple and

participate in its spiritual programs. She woke up at

about 3:00 a.m. to attend early morning worship services,

ate breakfast at the temple, and then would return home,

coming back to the temple later for various activities,

including sewing, making flower garlands, and cleaning.

She also attended evening classes on defendant's scrip-

tures. A 807-08.

Susan turned sixteen on August 14, 1974. A 766.

Around September, 1974, Susan and Doug moved

into the private apartment of Carol and Larry De Gre-

gory, two other members of the Boston temple. A 809.

Susan testified that Larry was the temple’s treasurer. A

812. In November, 1974, after moving to another apart-

ment which they were unable to afford, A 1242, the two

couples requested permission from ISKCON, N.E.’s presi-

dent, Adi Kesava, to move into the Boston temple facility.

A 814-15, 1242-243.

Adi Kesava told Susan that she could live in the

temple if she first obtained her mother’s permission, and

on the condition that she follow the religion’s practices of

a vegetarian diet, no illicit sex, no intoxication, no gam-

bling, and regular attendance at the temple programs.

Susan agreed to these conditions and arranged for Adi

Kesava to speak to Mary, who, on certain conditions,

consented to Susan living in the temple. A 3481-482.

After moving into the temple, Susan and Doug lived

separately. A 1243-244, 3969. Apparently unhappy with

this arrangement, Doug left the temple a short time later.

A 3516-517. Susan, however, remained, and willingly par-

ticipated in regular chores, rituals, and classes associated

with the temple and the practices of Krishna Conscious-

ness. A 1240, 1278-280, 1359, 3861-862.

In December, 1974, or January, 1975, Mary asked

Susan to sleep at home on weekends. Susan agreed, but

continued to spend most of her time at the temple. A

932-33. Shortly after Susan was formally “initiated” into

the religion in January or February, 1975, she began

spending every night at her mother’s house, although she

continued to spend her days at the temple. A 1184, 1187.

In April, 1975, Mary found a letter written by Susan

to a friend which alluded to a “plan” by several members

of the Boston temple to send Susan to West Germany

without Mary’s knowledge or consent. Mary summoned

Weymouth police officer Henry Vanesse, who informed

Susan that she risked legal action if she attempted to run

away. Mary also demanded that Susan sever all ties with

the defendant’s temple. Reluctantly, Susan agreed. A

1461-473, 3008-013.

2. On April 19, 1977, Susan and Mary filed a com-

plaint in the Superior Court alleging nine counts of tor-

tious activity against (1) ISKCON, N.E., (2) a separate

Krishna corporation domiciled in California, and (3) His

Divine Grace A. C. Bhaktivedanta-Swami Prabhupada,

the founder of Krishna Consciousness in the United

States. A 29-30. Following extensive pre-trial proceedings

in which the California corporation and Swami Prab-

hupada were dismissed, the case proceeded to trial on

May 11, 1987, against ISKCON, N.E. on the following

counts: (1) Susan’s claim of intentional infliction of emo-

tional distress; (2) Mary’s claim of intentional infliction of

emotional distress; (3) Susan’s claim of intentional inter-

ference with the Murphy family structure; (4) Mary’s

claim of intentional interference with her parental rights

(5) Susan’s claim that ISKCON, N.E. breached its duty to

adequately provide for her welfare while she was under

its care; and (6) Susan’s claim that ISKCON, N.E. aided

and abetted Doug Hewer in committing assault and bat-

tery on her by way of nonconsensual sexual intercourse

At trial, evidence was presented which, the plaintiffs

claimed, established that Susan’s experience with the

defendant caused her to suffer “post-traumatic stress dis-

”

order,” a low sense of self-esteem, and an inability to

maintain a healthy relationship with men. Additional

evidence showed that Susan remained angry with her

mother for several months following her departure from

the temple, A 1083, and that Susan expressed a desire to

return to her chosen religion. Susan and Mary’s relation-

ship began to improve when, after about six months,

Susan decided that she no longer wanted to be a member

of the religion or visit the temple. A 1081.

On June 16, 1987, the jury found for the plaintiffs on

four causes of action.> It awarded Susan $210,000 for the

intentional infliction of emotional distress, and $30,000

for ISKCON, N.E.’s failure to provide for her welfare

($10,000 of which was attributable to defendant’s failure

to protect her from assault and battery by third persons).

Mary received $350,000 for the intentional infliction of

emotional distress, and $20,000 for the intentional inter-

ference with her parental rights. A 4261-263. The total

award of $610,000 was more than doubled because of

statutory interest from 1977. A 4315.

3. On appeal, defendant challenged each aspect of

the verdict against it under the First Amendment of the

United States Constitution, as applied to the states

through the Fourteenth Amendment. Defendant also

employed a broad-based attack on the entire proceeding

under the First Amendment, asserting that the nebulous

nature of the claims, the inflammatory character of the

evidence submitted in support of those claims, and the

intensive and hostile scrutiny of Krishna religious beliefs

and practices invited the jury to punish defendant for its

unconventional and unpopuiar religious beliefs.

The Supreme Judicial Court (SJC), sitting en banc,

vacated the judgments against the defendant for the

claims of intentional infliction of emotional distress, and

ordered entry of judgment for the defendant on those

counts. Pet. App. 5, 409 Mass. at 844. The SJC found that

5 Susan’s claim for intentional interference with her family

structure was dismissed in connection with defendant’s motion

for a directed verdict. A 4051-054.

those claims were impermissibly predicated on the con-

tent of defendant’s religious beliefs and teachings, in that

plaintiffs were permitted to extensively suggest to the

jury that “exposure to the defendant’s religious beliefs

was sufficient to cause tortious emotional damage and to

separate Susan from her mother.” Pet. App. 29-30, 409

Mass. at 853-54. This, the SJC concluded, forced the

defendant “to choose between censoring its religious

scriptures to remove material which may be offensive to

contemporary society and paying for damages for the

privilege of maintaining unpopular religious beliefs” Pet.

App. 32-33; 409 Mass. at 855, a result precluded by the

First Amendment.

Because of the difficulty in segregating defendant's

“constitutionally protected religious beliefs from condi-

tionally protected religious activity and from conduct

outside the scope of constitutional scrutiny” Pet. App

43-44, 409 Mass. at 859, the SJC, without further discus-

sion , remanded for retrial plaintiffs’ remaining claims for

intentional interference with parental rights, breach of

duty of care, and vicarious liability for assault and bat-

tery.

REASONS FOR DENYING THE WRIT

Plaintiff, Susan Murphy, a former adherent of the

Krishna Consciousness religion, sued the temple where

she lived for a brief period of time, claiming that the

religious beliefs which she learned from defendant's

scriptures and other devotees living in the temple caused

her severe emotional distress. Her mother, plaintiff Mary

Murphy, also sued the temple, claiming that she too

suffered emotional distress because of her daughter’s

conversion and adherence to a religion of which she came

to disapprove.

The trial lasted six weeks. During that time, plaintiffs

presented extensive evidence of ISKCON, N.E.’s religious

beliefs and practices, which the jury ultimately found

wrongful. These beliefs and practices included reincarna-

tion, karma, detachment from the material world, the role

of women in the religion, vegetarianism, and chanting the

names of God.®

The SJC steadfastly refused to be drawn into the

theological thicket created by plaintiffs at trial. Charac-

terizing the lower court proceedings as a “heresy trial,”

the SJC emphasized that the issues raised by plaintiffs

regarding defendant's religious beliefs and practices have

“no place in the courts of this Commonwealth.” A 32, 409

Mass. at 855.

For the reasons discussed below, this Court should

also decline plaintiffs’ invitation to become embroiled in

a controversy over the propriety and impact of religious

beliefs, which are more appropriately the subject of a

“theological or academic debate” id. than adjudication in

a secular court of law.

6 Hare Krishna, Hare Krishna, Krishna Krishna, Hare

Hare/ Hare Rama, Hare Rama, Rama Rama, Hare Hare.

I. TORT LIABILITY FOR EMOTIONAL DISTRESS

MAY NOT BE PREDICTED UPON THE CONTENT

OF RELIGIOUS BELIEFS.

It is undisputed that plaintiffs’ two primary causes of

action for intentional infliction of emotional distress are

premised exclusively on ISKCON, N.E.’s religious

beliefs.” At tria], Susan testified that prior to her involve-

ment with ISKCON, N.E., she learned “from the

devotees” that the position of women in the Hare Krishna

religion is subservient to men. A 672. Then, as the center-

piece of her testimony, she spent over half a day on the

witness stand reading passages from the Srimad

Bhagavatam, one of ISKCON, N.E.’s primary scriptures, A

2156-157, concerning the roles of men and women in the

Krishna religion.® Specifically, Susan selected 50-60 verses

? Plaintiffs acknowledge that ISKCON, N.E.’s religious

beliefs were “exceedingly relevant to the issues in the case. The

defendant's teachings were one of the means by which defen-

dant committed its tortious conduct.” Pet. Br. at 47.

8 Plaintiffs represented before trial that ISKCON, N.E.’s

religious beliefs would not form the basis of liability. SA 2.

Immediately prior to the presentation of plaintiffs’ evidence,

however, it became apparent that defendant's religious beliefs

would form the centerpiece of plaintiffs’ case. Accordingly,

defendant filed a motion in limine to exclude “passages from

the scriptures . . . religious pictures of various sorts . . .-

sermons ...” A 495. In response, plaintiffs sought the admis-

sion of “scriptural teaching concerning sub[jugation] of

women.” A 497. While the trial court initially took a “dim view

of admitting such evidence,” id., it subsequently denied defen-

dant’s motion to exclude “evidence regarding the teaching of

Krishna religion, concerning the respective roles of men and

women.” A 664-65; see also A 94, 495, 946-56.

out of 1200 which she had studied, and presented 20

directly to the jury. A 1230. This testimony took the form

of Susan being shown specific scriptural passages by her

attorney, and then being asked if she could “recall being

taught that text at the defendant’s temple in Boston in

1974 and 1975.” E.g., A 995. If she answered affirmatively,

she would then read or describe the particular portion of

the text, and would discuss anything else she was “taught

. supplementing in addition to the exact words that

[she] just read with respect to this verse.” A 997. Plain-

tiffs’ expert, Dr. Zinberg, in turn, later teStified that

Susan’s psychological reaction to these teachings caused

her to lose self esteem and suffer emotional distress. A

2800-802. The theme established by reading from the

scriptures was then argued to the jury as the primary

predicate for liability and damages. A 4101.

In a similar vein, Mary Murphy’s cause of action for

intentional infliction of emotional distress is based upon her

unhappiness over Susan’s conversion to and practice of

Krishna Consciousness. Thus, Mary testified at trial that her

emotional distress began with Susan’s initial contact with

Krishna consciousness in 1972, A 2817, and continued years

later while Susan was living part-time at home. A 2823. Even

during the six to eight weeks after Susan completely severed

her relationship with ISKCON, N.E. in 1975, Mary was emo-

tionally disturbed over Susan’s “chanting, wearing beads,

[and] announcing her commitment to Krishna conscious-

ness.” A 2826. Dr. Zinberg then testified that the cause of

Mary’s emotional distress from the early 1970s through the

1980s was her fear that Susan might return to Krishna Con-

sciousness, A 2825-832, which he reiterated as part of his

prognosis for Mary. A 2844.

10

Both of plaintiffs’ causes of action for intentional

infliction of emotional distress, therefore, are squarely

premised on the content of ISKCON, N.E.’s religious

beliefs. The First Amendment, however, prohibits all

“governmental regulation of religious beliefs as such.”

Sherbert v. Verner, 374 U.S. 398, 402 (1963). The govern-

ment may not compel affirmation of religious belief, see

Torasco v. Watkins, 367 U.S. 488 (1961), impose special

disabilities on the basis of religious views or status, e.g.,

McDaniel v. Paty, 435 U.S. 618 (1978), take sides in contro-

versies over religious authority, dogma, or theory, e.g.,

Presbyterian Church v. Hull Church, 393 U.S. 440 (1969);

Epperson v. Arkansas, 393 U.S. 97 (1968); Zorach v. Clausen,

343 U.S. 306 (1958), or become involved in issues requir-

ing secular courts to become “arbiters of scriptural inter-

pretation.” Thomas v. Review Bd., 450 U.S. 707, 715 (1981).

Nor may the government punish the expression of

religious doctrines it believes to be false, unhealthy, or

coercive. United States v. Ballard, 322 U.S. 78 (1943); Orga-

nization for a Better Austin v. Keefe, 402 U.S. 415 (1971);

NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982).

“Freedom of thought, which includes freedom of reli-

gious belief, is basic in a society of free men... . It

embraces the right to maintain theories of life and death

and of the hereafter which are rank heresy to followers of

the orthodox faiths. Heresy trials are foreign to our con-

Stitution.” Ballard, 322 U.S. at 86.9

° As noted by the SJC, A 37, n. 11, 409 Mass. at 857, n. 11,

this is particularly true when the expression of religious beliefs

(Continued on following page)

11

Religious adherents, therefore, may not be required

to show that their beliefs are conventional or socially

acceptable, Wisconsin v. Yoder, 406 U.S. 205, 225 (1972), or

that they adopted those beliefs by a process that is

“acceptable, logical, consistent, or comprehensible to

others.” Thomas, 450 U.S. at 714.

Yet, as noted by the SJC, the trial court required “the

defendant . . . to do what the First Amendment has

forbidden; it has been forced to attempt to prove to a jury

that the substance of its religious beliefs is worthy of

respect. ” A 32, 409 Mass. at 854.

For this reason, the SJC was constitutionally justified

in reversing the judgments for intentional infliction of

emotional distress.

Il. LIABILITY FOR TORTIOUS CONDUCT MAY NOT

BE IMPOSED IF THE DEFINITION OF THE TORT

GIVEN TO THE JURY ENCOMPASSES CONSTI-

TUTIONALLY PROTECTED AS WELL AS

UNPROTECTED CONDUCT.

As shown above, most of the evidence presented to

the jury concerned protected religious beliefs, practices,

(Continued from previous page)

occurs as part of a regularly scheduled program in the confines

of defendant’s place of worship. “[It is not] in the competence

of courts under our constitutional scheme to approve, disap-

prove, classify, regulate, or in any manner control sermons

delivered at religious meetings. Sermons are as much a part of

a religious service as prayers.” Fowler v. Rhode Island, 345 U.S.

67, 70 (1953).

12

and activities.!° On this basis, the SJC correctly vecog-

nized that it had a constitutional “duty to conduct an

independent review of the record of the trial below” A 19,

409 Mass. at 849; see Bose Corp. v. Consumers Union, 466

U.S. 485, 499 (1984) (appellate courts have obligation to

make independent examination of the record to ensure

that judgment does not intrude on First Amendment

rights), and to reverse any cause of action which may

have rested, @ven in part, on constitutionally protected

grounds. Id. at 20, 409 Mass. at 850; see Founding Church of

Scientology v. United States, 409 F.2d 1146, 1164 (D.C. Cir.)

(opinion on rehearing), cert. denied, 396 U.S. 963 (1969).

It is well established that neither criminal nor civil

liability may be imposed on the basis of conduct that

includes constitutionally protected speech. E.g., Street v.

New York, 394 U.S. 476, 485-90 (1969); Stromberg v. Califor-

nia, 283 U.S. 359 (1931). In NAACP v. Claiborne Hardware

Co., for example, the evidence showed that participants in

an NAACP-led boycott of commercial businesses in

10 During trial, defendant vigorously objected to the

admissibility of passages from its sacred scriptures and, in

general, to evidence concerning the role of women in the

religion. A 94, 495, 664-65, 946-56. The court overruled these

objections, holding the passages relevant to prove Susan's

emotional distress: “If she would like to testify as to certain

passages that were taught to her .. . and which will later be

testified to [by the expert] as bearing upon emotional dis-

tress ... or psychological damage, then they are admissible as

being relevant.” A 963. The court also held the religious scrip-

tures admissible as relevant to Mary’s claim of interference

with her custodial rights, on the theory that defendant would

be liable if it offered Susan religious instruction disapproved of

by her mother. A 950, 952-53.

13

Claiborne County, Mississippi, had committed acts of

violence that fell outside the protection of the First

Amendment. 458 U. S. at 916. This Court held, however,

that “the presence of activity protected by the First

Amendment imposes restraints on the grounds that mey

give rise to damages liability.” Id. at 916-17. It reversed

the damages against the NAACP and its co-defendants in

their entirety, finding that the pleadings, arguments of

counsel, and jury instructions had not adequately defined

which elements of the alleged injury were “proximately

caused by unlawful conduct” and which resulted from

constitutionally protected activity. Id. at 917-18. The same

principle, as extended to religious conduct and beliefs,

supports the SJC’s decision to reverse plaintiffs’ claims

for intentional infliction of emotional distress, and to

remand the remaining claims for a retrial.

Indeed, defendant repeatedly argued to the trial

court that because of its unpopularity in the community,

see, e.g., A 77-80, 101-03, 232, there was a danger that the

jury could find liability solely on the basis of its religious

beliefs and actions. E.g., A 98-99, 106-07, 108-09. The trial

court, however, disregarded defendant’s fears, and

rejected its request at the end of trial that the court

identify for the jury in its instructions those facts which

could properly form the basis of liability. A 4052-054.

Instead, the court gave a generalized instruction to the

jury that invited it to arbitrarily pick and choose among

defendant's beliefs, practices, and actions in imposing

liability for practices which the jury subjectively consid-

ered wrongful. A 4177-184. For this reason, the SJC aptly

noted that the trial court “exacerbated the problem by

erroneously instructing the jury regarding the extent of

14

the free exercise protections afforded by the First Amend-

ment.” A 37-38, 409 Mass. at 857.

The SJC was thus correct in conducting an indepen-

dent review of the record and in reversing and remand-

ing those claims which were based in whole or part upon

constitutionally protected beliefs and practices.

¢

CONCLUSION

This Court should refuse to grant a Writ of Certiorari

to the Supreme Judicial Court of Massachusetts.

August 30, 1991

Respectfully submitted

Davin M. LinERMAN

Counsel of Record

2049 Century Park East

Suite 3160

Los Angeles, California 90067

(213) 277-9288

Davip L. KELSTON

FRIEDMAN & ATHERTON

Nineteenth Floor

28 State Street

Boston, Massachusetts 02109

(617) 227-5540

Counsel for Respondent