choices you already made. Judges are very
sensitive to not becoming an alter ego of
disgruntled litigants. They assume that it is not
the function of a court to substitute its own
decision for that made by the litigant. The
paradox is easily understood in the context of
will cases.
Suppose an 80-year-old man becomes involved
with a 27-year-old woman. After he dies, it is
discovered that in the few months the two
people were together, the man changed his will
and left his fortune to his young girlfriend,
leaving nothing to his family. What should the
court decide when the family challenges the
will? When more than money is involved, when
beliefs and identity are at issue, the paradox for
courts becomes even more pronounced. Do you
protect mental freedom by doing nothing, or by
undoing the choices seemingly made by the
influencee under circumstances in which
impermissible influence might have occurred?
Many state courts used to have a test for
answering these questions. The test was whether
the influencee had been duped by an “artful and
designing person.” I confess to being fond of
that test, not because it is clear, but because, in
its Dickensian language, it attracts our attention
to the key ingredients of undue influence—a
vulnerable victim outmatched by a self-
interested and clever manipulator.
But whatever the test, the paradox remains. Do
you protect freedom of mind by upholding the
choices actually made, or by undoing the
decisions on the grounds that they were the
product of a sophisticated fraud?
The Constitutional Problem
Even if a judge would be inclined to step in and
find undue influence, there is the problem of the
First Amendment, which protects freedom of
expression and freedom of religion. Fortunately,
in most cases the problem does not arise because
behaviors, not specific beliefs, are at issue.
In April of this year, the Nigerian Islamic
extremist group Boko Haram kidnapped more
than 200 teenage girls. A video was released
showing approximately 150 of the girls attired in
traditional Muslim dress reciting or chanting
verses from the Koran. Boko Haram leader
Abubakar Shekau claimed he had liberated the
girls and that many of them had become
Muslims after having been living as infidels.
Would anyone claim that to rescue these girls
and undo the mental harm they have suffered,
including the coerced involuntary indoctrination
they endured, would violate freedom of religion?
The basic policy in awarding damages in the law
of torts is that when a harm has been done to
someone (such as false imprisonment and
battery), the individual is entitled to a remedy
that would put her back in the position she was
in before the harm occurred. So the forcibly
abducted and coercively indoctrinated young
girls should be entitled to be returned to their
families and to the beliefs they held before being
captured. However, this conclusion raises an
intriguing “which side are you on” issue: If it is
impermissible to use sophisticated and yet subtle
tactics of indoctrination to induce a person to
hold certain religious beliefs, is it permissible to
deprogram that person out of those beliefs
(Fautré, 2014)?
There is no time here to discuss or develop the
intricacies of tort law or First Amendment law,
other than to say that courts are wary of
intruding in any case in which religion is a
factor. However, two current developments
merit mentioning because they may change the
contours of how we think about religion and
undue influence.
The first is the ongoing issue of what constitutes
a religion. Scientology has qualified as a
religion in some courts, but what about yoga
(Fraser, 2014)? These cases are now pending.
And what about Satanism (Harvard, 2014)? And
what about atheism—one court has just held that
atheism (“secular humanism”) qualifies as a
religion (American Humanist Association v.
United States, 2014)? How far will courts be
willing to go to grant religious status to an
increasing number of organizations and belief
systems (Fautré, 2014 Hamilton, 2014 Irons,
2007)?
A second and related development is the very
recent backlash against special treatment for
religious organizations. Bill Moyers (2012), in a
thoughtful video essay subtitled “How do we
honor religious liberty without it becoming the
International Journal of Cultic Studies ■ Vol. 6, 2015 75
sensitive to not becoming an alter ego of
disgruntled litigants. They assume that it is not
the function of a court to substitute its own
decision for that made by the litigant. The
paradox is easily understood in the context of
will cases.
Suppose an 80-year-old man becomes involved
with a 27-year-old woman. After he dies, it is
discovered that in the few months the two
people were together, the man changed his will
and left his fortune to his young girlfriend,
leaving nothing to his family. What should the
court decide when the family challenges the
will? When more than money is involved, when
beliefs and identity are at issue, the paradox for
courts becomes even more pronounced. Do you
protect mental freedom by doing nothing, or by
undoing the choices seemingly made by the
influencee under circumstances in which
impermissible influence might have occurred?
Many state courts used to have a test for
answering these questions. The test was whether
the influencee had been duped by an “artful and
designing person.” I confess to being fond of
that test, not because it is clear, but because, in
its Dickensian language, it attracts our attention
to the key ingredients of undue influence—a
vulnerable victim outmatched by a self-
interested and clever manipulator.
But whatever the test, the paradox remains. Do
you protect freedom of mind by upholding the
choices actually made, or by undoing the
decisions on the grounds that they were the
product of a sophisticated fraud?
The Constitutional Problem
Even if a judge would be inclined to step in and
find undue influence, there is the problem of the
First Amendment, which protects freedom of
expression and freedom of religion. Fortunately,
in most cases the problem does not arise because
behaviors, not specific beliefs, are at issue.
In April of this year, the Nigerian Islamic
extremist group Boko Haram kidnapped more
than 200 teenage girls. A video was released
showing approximately 150 of the girls attired in
traditional Muslim dress reciting or chanting
verses from the Koran. Boko Haram leader
Abubakar Shekau claimed he had liberated the
girls and that many of them had become
Muslims after having been living as infidels.
Would anyone claim that to rescue these girls
and undo the mental harm they have suffered,
including the coerced involuntary indoctrination
they endured, would violate freedom of religion?
The basic policy in awarding damages in the law
of torts is that when a harm has been done to
someone (such as false imprisonment and
battery), the individual is entitled to a remedy
that would put her back in the position she was
in before the harm occurred. So the forcibly
abducted and coercively indoctrinated young
girls should be entitled to be returned to their
families and to the beliefs they held before being
captured. However, this conclusion raises an
intriguing “which side are you on” issue: If it is
impermissible to use sophisticated and yet subtle
tactics of indoctrination to induce a person to
hold certain religious beliefs, is it permissible to
deprogram that person out of those beliefs
(Fautré, 2014)?
There is no time here to discuss or develop the
intricacies of tort law or First Amendment law,
other than to say that courts are wary of
intruding in any case in which religion is a
factor. However, two current developments
merit mentioning because they may change the
contours of how we think about religion and
undue influence.
The first is the ongoing issue of what constitutes
a religion. Scientology has qualified as a
religion in some courts, but what about yoga
(Fraser, 2014)? These cases are now pending.
And what about Satanism (Harvard, 2014)? And
what about atheism—one court has just held that
atheism (“secular humanism”) qualifies as a
religion (American Humanist Association v.
United States, 2014)? How far will courts be
willing to go to grant religious status to an
increasing number of organizations and belief
systems (Fautré, 2014 Hamilton, 2014 Irons,
2007)?
A second and related development is the very
recent backlash against special treatment for
religious organizations. Bill Moyers (2012), in a
thoughtful video essay subtitled “How do we
honor religious liberty without it becoming the
International Journal of Cultic Studies ■ Vol. 6, 2015 75
