1. To take just a few examples: in 1990 the Supreme Court held that the universal application of facially neutral legal rules does not infringe on free exercise even when they criminalize sacramental rites. See Employment Div. Dep't of Human Res. of Ore. v. Smith, 494 U.S. 872, 890 (1990). Congress, in response, imposed a much more demanding test for federal actions affecting religious practice, the Religious Land Use and Institutionalized Persons Act, 42 U.S.C.A. § 2000cc(a)(1) (2000), and tried to do so for state action, Religious Freedom Restoration Act, § 2, 42 U.S.C.A. § 2000bb (1993), but was stymied by Boerne v. Flores, 521 U.S. 507 (1997); the military has struggled with regulations concerning the rights of chaplains to proselytize, see, e.g., Adair v. Eng., 183 F. Supp. 2d 31 (D.D.C. 2002); prisons at the state and federal levels have struggled to balance free exercise accommodations against both security and Establishment Clause concerns, see, e.g., Hamilton, Marci A., God vs. the Gavel: Religion and the Rule of Law 142–44 (Cambridge Univ. Press 2005)CrossRefGoogle Scholar; and numerous states have, in the name of free exercise, enacted exemptions for religious entities from all manner of regulations, such as health and safety rules for child care centers, see Collins, Ann & Reisman, Barbara, Child Care Under the Family Support Act: Guarantee, Quasi-Entitlement, or Paper Promise?, 11 Yale L. & Pol'y Rev. 203, 207 (1993)Google Scholar. See generally Mason, Caleb E., Faith, Harm, and Neutrality: Some Complexities With Free Exercise Law, 44 Duq. L. Rev. 225 (2006)Google Scholar.

2. U.S. v. Ballard, 322 U.S. 78 (1944). See, e.g., Goldberg, Steven, Seduced by Science: How American Religion Has Lost Its Way 70 (N.Y. Univ. Press 1999)Google Scholar (glossing Ballard as holding that “[t]he truth of religious belief is simply off limits to the government”).

3. Note the obvious caveat that burdens of proof in court factfinding do not require that the factfinder attain a subjective certainty (P=1, if we like) of the facts in question. In civil cases, under a preponderance of the evidence standard, the probability determination need be only 0.51, and that 1 can be as many decimal places out as we choose. The degree of subjective certainty required for a confident factual assertion in most scientific contexts is considerably higher. However, subsequent to that initial factfinding, the state will (for most purposes) treat the factual assertion as having been proved true or false. For a good discussion of some of the practical consequences of the differences between (ideal) judicial and scientific epistemologies, see Leiter, Brian, The Epistemology of Admissibility: Why Even Good Philosophy of Science Would Not Make for Good Philosophy of Evidence, 1997 BYU L. Rev. 803Google Scholar; Cranor, Carl F. & Eastmond, David A., Scientific Ignorance and Reliable Patterns of Evidence In Toxic Tort Causation: Is There A Need for Liability Reform?, 64 L. & Contemp. Probs. 5 (Autumn 2001)CrossRefGoogle Scholar.

4. Noonan, John T. Jr., How Sincere Do You Have to Be to Be Religious?, 1988 U. Ill. L. Rev. 713 (1988)Google Scholar.

5. There are few cases straightforwardly applying Ballard, but the Scientology cases, discussed infra, perfectly illustrate my claim. See infra notes 14-27 and accompanying text; Founding Church of Scientology v. U.S., 409 F.2d 1146 (D.C. Cir. 1969); U.S. v. Article or Device “Hubbard Electrometer,” 333 F. Supp. 357 (D.C. 1971); Van Schaick v. Church of Scientology of Cal., Inc., 535 F. Supp. 1125 (D. Mass. 1982).

6. In some respects, the Establishment Clause creates similar restrictions. The Court has not always taken care to distinguish the applications of the two clauses to the religious factfinding cases, however, and while Hull Church, for example, could conceivably be explained on Establishment grounds, it is more straightforwardly seen as a Free Exercise case. Ballard has little to do with establishment issues, nor do the Scientology cases. Presbyterian Church in the U.S. v. Mary Elizabeth Blue Hull Mem'l Presbyterian Church, 393 U.S. 440 (1969). The legal claim I am concerned with in this article is: “If a court engages in factfinding on an issue about which a party has religious beliefs, that factfinding infringes on the free exercise of the party's religion.”

7. Ballard, supra note 2, 322 U.S. at 78.

8. Id. at 82-83.

9. Id. at 83.

10. Id. at 86.

11. Id. at 84.

12. Id. at 86 (citations omitted) (not that there are many, and the passages cited are the barest generalities about free exercise).

13. See, e.g., the Scientology cases, infra notes 14-27 and accompanying text; Tilton v. Marshall, 925 S.W.2d 672 (Tex. 1996) (no cause of action for fraud where defendant charged plaintiff for ineffective prayers; noting that most courts would probably hold that a claim of fraud is not actionable if based upon the representation that, in exchange for a monetary contribution, God will cure a sick donor's illness. As long as the representation forming the basis of the fraud claim is a religious doctrine or belief, it is constitutionally protected from judicial inquiry.).

The distinction generally drawn from Ballard is between the truth or falsity of religious beliefs (off limits), and the sincerity with which those beliefs are held (fair game).

14. Founding Church of Scientology, supra note 5, 409 F.2d at 1155.

15. Id. at 1152-53.

16. Id. at 1153.

17. Id. at 1148.

18. Id. at 1159-62.

19. Founding Church of Scientology, supra note 5, 409 F.2d at 1159.

20. Id. at 1162.

21. Id. at 1159, citing Hubbard, L. Ron, Scientology: A History of Man (Dept. Publications World Wide 1961)Google Scholar.

22. Article or Device “Hubbard Electrometer,” supra note 5, 333 F. Supp. at 361.

23. Id.

24. Id.

25. Id. at 362.

26. Founding Church of Scientology, supra note 5, 409 F.2d at 1162; Article or Device “Hubbard Electrometer,” supra note 5, 333 F. Supp. at 361.

27. Article or Device “Hubbard Electrometer,” supra note 5, 333 F. Supp. at 364. And that is where things stand to this day. See, e.g., Van Schaick, supra note 5, 535 F. Supp. at 1125 (holding Scientology claims justiciable in fraud action only where they were said by the church to be “scientifically guaranteed.”).

28. Hull Church, supra note 6, 393 U.S. at 450.

29. Id. at 443 n. 1.

30. Id. at 443.

31. See, e.g., Stone, Geoffrey R.et al., Constitutional Law 1546 (3d ed., Aspen 1996)Google Scholar; Sullivan, Kathleen M. & Gunther, Gerald, Constitutional Law 1512 (Foundation Press 2004)Google Scholar.

32. Commentators generally agree, for example, that a court could not constitutionally issue a ruling on whether a parent who took her child to a non-Jewish worship service had violated a custody agreement specifying that the child be raised according to “the tenets of Judaism.” Zummo v. Zummo, 574 A.2d 1130 (Pa. Super. Ct. 1990). At least one recent commentator has suggested that such a ruling could be made, as a matter of purely positive law, provided that the court could “determine that the Zummos had in mind a particular Jewish denomination in setting out the terms of their agreement.” Goldstein, Jared A., Is There A Religious Question Doctrine: Judicial Authority to Examine Practices and Beliefs, 54 Cath. U. L. Rev. 497, 548 (2005)Google Scholar.

33. See, e.g., Idleman, Scott, Tort Liability, Religious Entities, and the Decline of Constitutional Protection, 75 Ind. L.J. 219 (2000)Google Scholar.

34. Most commentary, of which Goldstein is exemplary, focuses on normative religious doctrines, specifically on the question of whether and when courts may make determinations about whether a particular behavioral code is “really” part of a particular religion. See Goldstein, supra note 32. This question arises frequently in the context of asserted free exercise exemptions, for example in prisons and schools. Another recent context is diocesan bankruptcy cases arising from church liability for sexual abuse by Catholic priests: several dioceses have tried to limit the property subject to bankruptcy by arguing that most church holdings do not belong to the church itself, but rather are the personal property of the bishop. See, e.g., Carmella, Angela C., Constitutional Arguments in Church Bankruptcies: Why Judicial Discourse About Religion Matters, 29 Seton Hall Legis. J. 435 (2005)Google Scholar.

35. Compare Eisgruber and Sager's excellent and nuanced defense of the claim that a clear distinction between religion and non-religion is unnecessary for application of the Free Exercise Clause, and that courts instead should approach particular cases by “ask[ing] difficult questions about whether an alleged instance of misconduct bears the right relation to the key [historical features of religious conflict].” Eisgruber, Christopher L., Does It Matter What Religion Is?, 84 Notre Dame L. Rev. 807, 834 (2009)Google Scholar. Like most commentators, however, they take as their illustrative examples instances of sui generis behavioral imperatives—“Feed the poor” in their example, conceived by one plaintiff as a religious duty and by another as a secular moral imperative—and say nothing about fact claims to which subjective religious significance is attached by a litigant. Nor do I think it would be accurate to say that fact claims did not historically play a large role in religious conflict. Galileo, to take the most famous and minutely reported example, was threatened with torture for claiming that the Earth orbited the Sun. While obviously there was more at stake than just an empirical fact claim, nobody involved would have denied that the claim in question really was an empirical fact claim.

36. We need not be detained, for the purposes of this paper, by the question of whether, and to what extent, propositions about empirical fact are “theory-laden.” I assume only that there is an identifiable category of propositions—theory-laden or not—that purport to describe physical states of affairs. The ostensible First Amendment factfinding prohibition, as stated in Ballard, would apply regardless of whether such propositions are smuggling theoretical contraband.

37. One noteworthy recent example of this sort of myopia—noteworthy not least because its author is an academic philosopher specializing in epistemology—is Robert Audi's interesting essay, The Place of Religious Argument in a Free and Democratic Society, 30 San Diego L. Rev. 677 (1993)Google Scholar. In Audi's classification of types of religious belief, presented, he tells us, as a complete typology of modes of religious belief and expression, belief about matters of empirical fact does not appear. One might always argue, of course, that on such questions, a person's beliefs shouldn't be “religious,” because there are alternative justificatory procedures available—and indeed Audi argues just that about questions of social policy. But he seems not to notice that, just as many people employ religious justifications to advocate policies that might also be justified by secular reasons, many people also attach religious significance to propositions of empirical fact that also might be justified by non-religious methods.

38. Thus, for example, questions involving both historical facts (Did P do x at t?) and scientific inferences (Does x cause y? Can x cause z?) are treated by courts as susceptible of proof through familiar evidentiary techniques. While they may be different kinds of assertions, as a purely epistemological matter (e.g., the latter type of proposition can be confirmed or disconfirmed through repeatable experiments, while the former type cannot), they are equally, and uncontroversially, understood to be the sorts of questions that courts are capable of answering.

39. As Professor Carmella has shown, there are two distinct conceptualizations of religious beliefs in constitutional theory and discourse:

A language that possesses heightened sensitivity to the uniqueness and sacral quality of religion gives expression to a jurisprudence that explicitly faces the religious nature of an act or institution. A language that demystifies religion and ignores its unique or sacral qualities gives voice to a jurisprudence that more readily treats the religious act or institution in nonreligious terms.

Carmella, supra note 34, at 437.

40. Noonan, supra note 4.

41. E.g., Barborak, Nicholas, Saving the World, One Cadillac at a Time: What can be Done When a Religious or Charitable Organization Commits Solicitation Fraud?, 33 Akron L. Rev. 577 (2000)Google Scholar.

42. I recognize the utility of arguments about the contents of religious doctrines in the seventeenth and eighteenth centuries, though I will not employ any here. Scholarship on the religion clauses commonly relies on such arguments, and as a sometime seventeenth-century specialist I have a professional interest in them. I do think a strong case can be made that the historical trajectory of European Christianity from the outset of the Scientific Revolution to the present is one of virtually complete surrender, by religion to science, of the terrain of empirical fact. I suspect that seventeenth-century philosophers would be shocked at the sanguinity with which their twentieth-century successors accept as obvious a “non-overlapping magisteria” model in which the subject matter of religion is sufficiently distinct from the subject matter of science that apparent conflict is necessarily the result of conceptual error. See, e.g., Steven Jay Gould, infra note 43, for the famous “non-overlapping magisteria” formulation; etc.

43. One reason, I have often thought, that academic philosophers of religion have taken Tillich as their theological siren in matters of religious epistemology is that an account of the epistemic content of religious utterances along the lines sketched by Tillich is necessary for preserving the “non-overlapping magisteria” détente which has been a darling of academia from Tillich through Stephen Jay Gould. See Gould, Stephen Jay, Nonoverlapping Magisteria, 106 Natural Hist., Mar. 1997, at 16Google Scholar. That is, if you concede that some people believe, with genuine and sincere religiosity, that as a matter of empirical fact the earth is only 6,000 years old and that people did not evolve from non-human ancestors, then science becomes unavoidably political: scientists must, in the name of science, enter the messy and unpredictable world of politics. But it's easy to avoid this obligation if you insist that any beliefs about empirical facts subject to scientific investigation are just not “properly” religious. Then there's no conflict.

I didn't invent this little story; it was dramatically on display at the recent Templeton Science and Religion conference in San Diego, where Richard Dawkins and other prominent scientists insisted that the scientific community take a united position against religious doctrine where it conflicts with mainstream science. Dawkins castigated his colleagues for their compatibilist rhetoric, and their acquiescence in the assumption that there is no “real” conflict between religion and science, “properly conceived.” See, e.g., Reynolds, Susan Salter, Faith and Belief: Richard Dawkins Evolves His Arguments, L.A. Times, 10 11, 2009Google Scholar.

Dawkins in turn has been criticized for reverting to “tired” tropes of religion-science conflict. I would note only that the important issue, whether philosophical, legal, or political, surely cannot be whether the “trope” is “tired,” but is rather there are in fact points of actual conflict between religious beliefs, as actually held and manifested, and secular practices of civil society, such as science and the law. It is the latter claim that I pursue in this paper.

44. See Gould, supra note 43.

45. Gould explains that in thirty years of teaching evolutionary theory at Harvard, he was asked about potential conflicts with religious doctrine on only one occasion. On that occasion, he “reassured [the student] that evolution was both true and entirely compatible with Christian belief.” This is because, he says, “[c]reationism does not raise any unsettled intellectual issues about the nature of biology or the history of life. Creationism is a local and parochial movement… the fundamentalist fringe notwithstanding.” Would that we could all be so sanguine! But we can't, because American constitutional law must take into account the actual religious beliefs of American religious sects, and the “fundamentalist fringe” includes, conservatively, at least thirty million Americans. To be sure, one doesn't generally find them in biology classes at Harvard, but they are real and their existence renders less persuasive Gould's optimistic attempt to dismiss all apparent conflict as the product of “deep[] misunderstand[ing of] the relationship between science and religion.” Id. at 16, 18. Who, exactly, is doing the misunderstanding?

46. In other words, I take it to be a reductio ad absurdum of any view of the Free Exercise Clause that would deny justiciability in any and every case where a party raised that clause. It must remain a conceptual possibility that a party could assert a free exercise exemption but lose.

47. Assuming it is true, then, that at least some religious sects have doctrinal beliefs that are empirically falsifiable, does this mean that some sects will find their beliefs less subject to contravention by judicial factfinding than others? Of course it does, just as some sects find their beliefs less subject to contravention by geological and biological research than others.

48. Flew, Antony, Theology and Falsification, in New Essays in Philosophical Theology 96–99 (Flew, Antony & MacIntyre, Alisdair eds., SCM 1955)Google Scholar.

49. Ayer, Alfred Jules, Language, Truth and Logic 35, 38 (Gollancz 1936)Google Scholar.

50. Id. at 35.

51. Fed. R. Evid. 401.

52. Fed. R. Evid. 402.

53. This is an objective, not a subjective evaluation, as I explain below.

54. E.g., Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).

55. Id.

56. Flew, supra note 48.

57. See, e.g., Hick, John, Faith and Knowledge: A Modern Introduction to the Problem of Religious Knowledge 55–56 (Fontana 1974)Google Scholar.

58. See Tillich, Paul, The Dynamics of Faith (Harper & Row 1958)Google Scholar.

59. Id.

60. Id.

61. The question of the cognitive status of religious beliefs is structurally identical to the Frege-Geach problem concerning the cognitive status of sentences expressing moral judgments. As articulated by Geach, expressivist theories of moral judgments are at odds with the logical structure of certain types of propositions commonly used to express them, and certain types of inferences commonly drawn from them. The standard example is a modus ponens argument where the antecedent of the conditional premise is a moral judgment (e.g., “It is wrong to torture dogs,” thus “If it is wrong to torture dogs, then it is wrong to torture horses.”). Geach argued that the fact that people can coherently formulate, understand, and accept such inferential forms entails that the sentential propositions (e.g., “It is wrong to torture dogs”) are necessarily employed as if they had a (potential) truth value.

Attempts to develop alternative logical metalanguages that can accommodate both an expressivist ontology and the apparent inferential structures of moral reasoning (e.g., Blackburn) have been subject to forceful criticisms (e.g., Unwin). The grammar of moral discourse, in other words, appears to be irreducibly realist. See, e.g., Unwin, Nicholas, Quasi-Realism, Negation, and the Frege-Geach Problem, 49 Phil. Q. 337 (1999)CrossRefGoogle Scholar.

This conclusion, however, tells us nothing about whether moral predicates actually refer to anything—it tells us only that people talk as though they do. And the realist's “moral facts,” whatever they may be thought to be, are no more susceptible to judicial factfinding than the expressivist's “Hooray!” sentiments. Thus a moral judgment, as such, is (obviously) non- justiciable regardless of whether moral realism or expressivism is true (whatever it would mean for either theory to be “true”), insofar as neither theory posits, even in principle, some potentially verifiable facts about the world which would establish (or even be relevant to) the correctness of either theory.

62. Tillich, supra note 58, at 34-35.

63. Hick, supra note 57, at 55-56, puts the distinction as follows:

The scientists [sic] (qua scientist) does not believe “religiously,” i.e., absolutely and implicitly, that the universe will continue to exhibit the same “laws” tomorrow as yesterday and today. He merely has no reason to suppose that it will not; and since it is only on the assumption of “uniformity” that he can plan his researches, he cheerfully makes that assumption. His is an act not of faith but of policy. He is moreover prepared to withdraw his assumption if the facts ever fail to justify it. Relatively slight irregularities on nature's part, it is true, prompt him to seek to enlarge his conception of the natural order rather than relinquish his belief in nature's orderliness; and to this extent his faith verges on the religious. But any considerable and massive irruption of change and chaos would reduce the scientist to despair. His attitude thus stands in contrast to that of the religious believer, whose faith is an unshakeable dogma, able to absorb and reinterpret all adverse or seemingly contradicting circumstances. There is, then, no such easy path as some have supposed from the “faith of science” to a “science of faith.”

64. E.g., Malcolm, Norman, The Groundlessness of Belief, in Reason and Religion 154 (Brown, Stuart C. ed., Cornell Univ. Press 1977)Google Scholar:

In American universities … nearly always the critical verdict is that the proofs [of religious doctrines] are invalid and consequently that, up to the present time at least, religious belief has received no rational justification. Well, of course not! The obsessive concern with the proofs reveals the assumption that in order for religious belief to be intellectually respectable it ought to have a rational justification. That is the misunderstanding.

65. E.g., Aldrich, Virgil C., The Sense of Dogmatic Religious Expression, 51 J. Phil. 145, 148 (1954)Google Scholar, “In such liturgically patterned postures, man makes formal religious sense (dogmatic), inklings of which are at base in his common-sense experience and expression. Thus does he formulate his religious vision in terms that neither designate nor denote their subject matter; i.e. their mode of signifying is not literal.”

66. Hick, supra note 57, ch. 2.

67. Id. at 51.

68. Id. at 52-53.

69. Goldberg, supra, note 2.

70. Id.

71. Id. at 149-50.

72. Id. at 1.

73. Id. at 138.

74. Goldberg, supra note 2, at 39.

75. Id.

76. Id. at 70.

77. At the 1953 meeting of the American Philosophical Association, at the panel entitled “Are Religious Dogmas Cognitive?,” speaker after speaker opined on the “inherently” metaphorical or analogical status of religious beliefs. If a belief was “religious,” the philosophers agreed, it simply couldn't be a literal proposition about empirical states of affairs. NYU's Sidney Hook finally stood and protested:

Listening to the discussion I wondered whose religious dogmas were being analyzed. It seemed apparent that the “religious dogmas” discussed by [the] speakers, are not the religious dogmas fervently believed by the overwhelming number of religious people throughout the world. They are not the dogmas of the public, historical religions but the private beliefs of a few. …

Symposium, Are Religious Dogmas Cognitive and Meaningful, 51 J. Phil. 145, 165 (1954)Google Scholar.

78. Kaufmann, Walter, Critique of Religion and Philosophy (Harper & Row 1972) (1954)Google Scholar.

79. Id. at ch. 24.

80. Id. at 66.

81. They that have power to hurt and will do none,

That do not do the thing they most do show,

Who, moving others, are themselves as stone,

Unmoved, cold, and to temptation slow,

They rightly do inherit heaven's graces

And husband nature's riches from expense;

They are the lords and owners of their faces,

Others but stewards of their excellence.

The summer's flower is to the summer sweet,

Though to itself it only live and die,

But if that flower with base infection meet,

The basest weed outbraves his dignity:

For sweetest things turn sourest by their deeds;

Lilies that fester smell far worse than weeds.

Shakespeare, William, Sonnet 94Google Scholar.

82. Kaufmann, supra note 78, at 66.

83. Symposium, supra note 77, at 67.

84. Id. at 160.

85. Kaufman, supra note 78, at 105.

86. Id.

87. See, e.g., U.S. Sentencing Guidelines § 6A1.3 (2004). In those rare cases in which a sentencing fact “disproportionately” affects the sentence, the standard rises to clear and convincing evidence. See, e.g., U.S. v. Staten, 466 F.3d 708 (9th Cir. 2007) (requiring clear and convincing evidence where guideline adjustment has “extremely disproportionate” effect on sentence). Even commentators who have argued that the beyond-a-reasonable-doubt standard ought to govern sentencing factfinding acknowledge that no court has ever so held. See, e.g., Ellis, Alan & Allenburgh, Mark H., Standards of Proof at Sentencing, Crim. Just., Fall 2009, at 62Google Scholar.

88. Kaufmann, supra note 78, at 104-05.

89. William James famously suggested that there is a “religious hypothesis,” albeit one which “cannot yet be verified experimentally.” See James, William, The Will to Believe and other essays in popular philosophy (Longmans, Green & Co. 1897)Google Scholar; Kaufmann, supra note 78, at 118. Kaufmann is infuriated by this terminological equivocation:

He writes as if the “religious hypothesis” were a more or less scientific hypothesis for which no crucial experiment had yet been devised as yet; one gets the feeling that a colleague is working on it even now in the next room, that verification is around the corner…

Kaufmann, supra note 78, at 118.

90. Kaufmann, supra note 78, at ch. 34.

91. If an adherent of one religion declares that someone else's religious beliefs are “false,” how should we interpret the statement? What pragmatic work is it doing? Have we really understood what the speaker is trying to say by interpreting his utterance as an assertion about the literal content of the other person's religious beliefs, construed as empirical statements about physical states of affairs? Or is the speaker really making a statement about his own identity, an assertion of his non-membership in the other person's social group?

92. Stevenson, Charles, The Nature of Ethical Disagreement, in Ethical Theory: The Question of Objectivity 65 (Rachels, James ed., Oxford Univ. Press 1998)Google Scholar. Note that Stevenson's claim is not in opposition to Geach et al.'s conclusions about the grammar of moral utterances. It may well be the case that while people talk about morality as if there were “moral facts” out there which could render moral utterances truth-apt, those hypothetical moral facts have no causal relationship with the world of verifiable empirical facts in which we live. (I would note, further, that absent a religious or quasi-religious (i.e., Kantian) domain of non-empirical reality to connect the two sorts of “facts,” one may justifiably ask what social purposes are furthered by asserting the reality of “moral facts.”).

93. Id. at 47-48.

94. Rolston, Holmes II, Science and Religion: A Critical Survey 343 (Random House 1987)Google Scholar.

95. Symposium, supra note 77, at 159.

96. Hauser, Marc D., Moral Minds (HarperCollins 2006)Google Scholar. Hauser's claim is that evolution has furnished primates (not just humans) with a set of instinctual emotional responses to particular social situations; these emotional reactions are distinct from, independent of, and remarkably non-responsive to, what we think of as “rational persuasion.” Facts don't give us values, in short; evolution has given us (at least a basic toolkit of) values; and while we can evaluate and (try to) modify those values, they are internal features of our brains, and so do not stand in need of (or exhibit susceptibility to) “justification.”

97. Davidson, Donald, Inquiries into Truth and Interpretation ch. 17 (Oxford Univ. Press 1978)Google Scholar.

98. See, e.g., id. at 257.

99. See, e.g., id. at 263.

100. See, e.g., Halle Split Turns Ugly, Husband Wants Cash, Sunday Telegraph (Sydney, Australia), 06 6, 2004, available at 2004 WLNR 9323389Google Scholar; Mr. Halle Berry Seeking Handout, The Smoking Gun Archive, http://www.thesmokinggun.com/archive/0603042halle1.html (last visited Mar. 2, 2010).

101. Imagine, for example, trying to challenge the validity of Berry's marriage on the grounds that she was a fox, and presenting newspaper clippings full of Berry's exes attesting that she's a fox. There is, I think, something of this confusion in Ballard.

102. Symposium, supra note 77, at 161-63.

103. See, e.g., Lancione v. State, 1923 WL 2434, at 3 (Ohio App. 7 Dist. Dec. 15, 1923); 23 C.F.R. § 1208.3 (2009).

104. This is a very important point: how is the free exercise argument for the sacramental wine exemption couched? The argument runs that churches should be exempted from alcohol provision regulations because the use of wine exemption couched? The argument runs that churches should be exempted from alcohol provision regulations because the use of wine, which would otherwise fall under the regulations, is an integral part of religious practice. The argument does not run that the regulations simply fail to apply of their own terms, because transubstantiation converts the wine into blood, and so no actual wine is used in communion.

Thus it is not, nowadays, seriously contended that failing to refrigerate a consecrated Eucharist violates meat-safety regulations, even though orthodox Catholic doctrine clearly specifies that the wafer is “really” the “body” of Christ. “Body,” as far as the secular law is concerned, is being used in a metaphorical sense only, with metaphysical trappings. Neither Catholics nor scientists nor food-safety inspectors appear to have much a problem with this linguistic state of affairs.

But this easy coexistence was a long time coming. One of the most hotly disputed issues in the natural philosophy of the seventeenth century was how to construct a theory of matter and physical causation that could accommodate the proposition that the consecrated Eucharist was “really,” in the most literal sense, the body of Christ. A scientific theory of matter that could not accommodate such a fact claim was ipso facto a failure, and metaphorical explanations of the doctrine were punishable heresy. Religious doctrines were “false” unless they were literally, factually demonstrable.

On Descartes, see Watson, Richard, The Breakdown of Cartesian Metaphysics (Hackett 1998)Google Scholar. Leibniz, too, insisted that any adequate model of physical identity and causation had to accommodate transubstantiation. See, e.g., Mercer, Christia, Leibniz's Metaphysics: Its Origins and Development (Cambridge Univ. Press 2001)CrossRefGoogle Scholar.

Another hotly disputed issue in natural philosophy—one that was debated and studied by the Royal Society, in fact!—was the question whether laboratory experiments could be devised that would confirm the possibility of literal bodily resurrection following the Apocalypse. See Mason, Caleb E., Conciliatory Eclecticism and the Philosophy of Kenelm Digby ch. 5 (2001) (unpublished Ph.D. dissertation, Columbia University) (on file with Columbia University)Google Scholar.

105. Winch, Peter, Meaning and Religious Language, in Reason and Religion 204–05 (Brown, ed., 1977)Google Scholar.

106. “The right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” Smith, supra note 1, 494 U.S. at 879 (1990) (internal quotation marks omitted). The Smith rule is, I think, rightly viewed as an apotheosis of the centuries-long process of forging a functional civil society from the rubble of the religious wars of the seventeenth century. If we are to have the rule of law, we cannot also have general warrants of lawlessness.

107. And I think Ballard has to be taken as referring to inherent lack of susceptibility to empirical proof; what could it mean, otherwise? That courts would be forbidden from making findings of fact that could be—and indeed are—proved, simply because one litigant has a contrary belief? Obviously not: every verdict ever returned in any court has involved a finding of fact that contradicts the belief of one of the parties (i.e., “cannot prove” in the sense of “did not prove to the jury's satisfaction”). No, what the Court clearly means is that people are entitled to hold beliefs that are inherently not capable of empirical proof.

108. Indeed, there does not even exist agreement among Christians as to what the propositions mean.

109. Complication rates in the study were highest among people who were told they were being prayed for; equal (lower) rates were observed among those who were not told and those who were not prayed for. See Carey, Benedict, Long-Awaited Medical Study Questions the Power of Prayer, N.Y. Times, 03 31, 2006Google Scholar.

110. Perhaps there is a theological Heisenberg uncertainty principle which holds that prayer ceases to function when it's being studied empirically. In any event, the study did not attempt to examine whether the participants altered their belief in the efficacy of prayer after examining the data.

111. Goldberg sees the attempt to justify prayer by pointing to empirical evidence of its medical efficacy as the clearest evidence of the infelicitous intermixing of the religious and scientific magisteria. He gives no indication of whether he thinks propositions about the medical efficacy of prayer enjoy epistemic privilege under Ballard, however. See Goldberg, supra note 2.

112. And my reading is, I think, necessary to reconcile Ballard with the result in the Scientology case two decades later (discussed supra Part I).

113. See, e.g., the entirety of modern contract law since the death of “magic words” doctrines. Or, at the intersection of First Amendment and criminal law, threat prosecutions. In threat cases, courts employ an objective test, asking whether a reasonable speaker would expect a reasonable interlocutor to interpret the utterance as conveying an intent to carry out the act. Planned Parenthood of Columbia/Willamette, Inc. v. Am. Coal, of Life Activists, 290 F.3d 1058, 1078-80 (9th Cir. 2002).

114. Fed. R. Evid. 401 (defining relevance), 104(a) (providing that questions of admissibility shall be determined by the court).

115. U.S. v. Seeger, 380 U.S. 163, 165-66 (1965).

116. Id. at 165.

The parties raise the basic question of the constitutionality of the section which defines the term “religious training and belief,” as used in the Act, as “an individual's belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, but (not including) essentially political, sociological, or philosophical views or a merely personal moral code.” The constitutional attack is launched under the First Amendment's Establishment and Free Exercise Clauses and is twofold: (1) The section does not exempt nonreligious conscientious objectors; and (2) it discriminates between different forms of religious expression in violation of the Due Process Clause of the Fifth Amendment.

117. The Court has repeatedly declined to provide a complete constitutional definition of “religion.” See, e.g., Weinberger, Lael Daniel, Religion Undefined: Competing Framework for Understanding Religion in the Establishment Clause, 86 U. Det. Mercy L. Rev. 735 (2009)Google Scholar.

118. Seeger, supra note 117, 380 U.S., at 184.

119. Id.

120. Id. at 165.

121. Id. at 180.

122. Id. at 180 (quoting Tillich, Paul, Systematic Theology. Vol. II, Existence and the Christ 12 (Univ. Chi. Press 1957)Google Scholar):

… [T]he God of both religious and theological language disappears. But something remains, namely, the seriousness of that doubt in which meaning within meaninglessness is affirmed. The source of this affirmation of meaning within meaninglessness, of certitude within doubt, is not the God of traditional theism but the “God above God. [sic]” the power of being, which works through those who have no name for it, not even the name God.

123. Id. at 181 (quoting from Robinson, John A.T., Honest to God 11, 13–15 (SCM 1963)Google Scholar: The Bible speaks of a God “up there.” No doubt its picture of a three-decker universe, of “the heaven above, the earth beneath and the waters under the earth,” was once taken quite literally. … (Later) in place of a God who is literally or physically “up there” we have accepted, as part of our mental furniture, a God who is spiritually or metaphysically “out there.” … But now it seems there is no room for him, not merely in the inn, but in the entire universe: for there are no vacant places left. In reality, of course, our new view of the universe had made not the slightest difference. … But the idea of a God spiritually or metaphysically “out there” dies very much harder… Every one of us lives with some mental picture of a God “out there,” a God who “exists” above and beyond the world he made, a God “to” whom we pray and to whom we “go” when we die. … But the signs are that we are reaching the point at which the whole conception of a God “out there,” which has served us so well since the collapse of the three-decker universe, is itself becoming more of a hindrance than a help.

124. I wish I could argue it here, but I can't. Space considerations have obliged me to delete, sadly, the extensive collection of hypos and cases I initially assembled for this article. Those hypos and cases included the following areas of law: property (title to land—primacy of claim); wills and trusts (mistake in the inducement); probate and family law (paternity determinations; child neglect); torts (causation; reasonable mitigation; defamation (e.g., ancestral migrations of Indian tribes)); criminal law (insanity defense; non-insanity mens rea defenses; DNA identification); copyright (in works authored by celestial beings but distributed by a church); abortion restrictions (upholding mandatory dissemination of information by physicians provided it is “true”); homeschooling regulations (requirement that children receive “science” instruction; classification of “intelligent design” as religious instruction).

125. See, e.g., Fed. R. Evid. 602; Fed. R. Evid. 702; Daubert, supra note 54.

126. See, e.g., Fed. R. Evid. 703; Daubert, supra note 54.

127. Gee, Michelle Migdal, Annotation, Modern Status of Test of Criminal Responsibility, 9 A.L.R. 4th 526 (1981)Google Scholar.

128. To leave aside the moral problems, the psychiatric problems, and the ambiguity of “wrong.” See e.g., State v. Corley, 495 P.2d 470, 473 (Ariz. 1972); State v. Worlock, 569 A.2d 1314, 1322 (N.J. 1990); Fave, Wayne La, Substantive Criminal Law § 7.2 (Thomson West 2003)Google Scholar; Ranade, Bageshree V., Comment, Conceptual Ambiguities in the Insanity Defense: State v. Wilson and the New “Wrongfulness “ Standard, 30 Conn. L. Rev. 1377, 1384–86 (1998)Google Scholar.

129. E.g., Knight v. Edwards, 264 S.W.2d 692, 695 (Tex. 1954) (emphasis added).

130. In non-insanity mens rea defenses, such as self-defense, where a defendant must have reasonably believed himself to be in danger, the Ballard problem is not as stark, because making out the defense does not logically entail anything about the truth value of the particular religious belief. It is logically possible for a belief to be reasonable but false, or unreasonable but true; it might be the case that reasonable people believe p, though not-p is in fact true.

The literature on the Gettier Problem provides the most obvious illustrations of this possibility in contemporary epistemology. And contemporary evolutionary psychology is increasingly documenting our evolved tendencies to misapprehend reality in many contexts.

And this is how most—though emphatically not all—mainstream religious sects describe the scienter of adherents of other religions: reasonable people who happen to have false beliefs. But see, e.g., National Public Radio (broadcast Dec. 12, 2006) (reporting on an evangelical group of military officers under investigation for using Pentagon money and resources for proselytizing, and playing a tape of a prayer breakfast held at the Pentagon at which the speaker says, “I have often thought that the only reasons someone would not accept the gift of eternal life and Christ was either [because] they hadn't heard of it or they were insane …”). Raz, Guy, Religious Group's Ties to Pentagon Questioned, All Things Considered (National Public Radio, 12 11, 2006), available at http://www.npr.org/templates/story/story.php?storyld=6610025Google Scholar.

131. See Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders 765 (4th ed. 1994) (defining “delusion” as “[a] false belief based on incorrect inference about external reality that is firmly sustained despite what almost everyone else believes and despite what constitutes incontrovertible and obvious proof or evidence to the contrary. The belief is not one ordinarily accepted by other members of the person's culture or subculture (e.g., it is not an article of religious faith).”). See also Morris, Grant H. & Haroun, Ansar, “God Told Me To Kill”: Religion or Delusion?, 38 San Dlego L. Rev. 973 (2001)Google Scholar (arguing that the DSM definition of delusion is incompatible with the deific decree defense).

132. Mason, supra note 1. Morris & Haroun, supra note 133.

133. Clark v. Ariz., 548 U.S. 735 (2006).

134. E.g. Chambers v. Miss., 410 U.S. 284 (1973).

135. The facts of the case and citations to contemporary news reports are set forth in Mason, supra note 1, at 105-06 (citing Collette, Mark, Case Could Add Fuel to Insanity Debate, Tyler Morning Telegraph, 03 27, 2004Google Scholar; Falkenberg, Lisa, Mother Insane When She Killed Sons, The Advertiser, 04 5, 2004, at 25Google Scholar; Hancock, Lee, Laney Told of Devil and Wanting To Die, Dallas Morning News, 04 9, 2004, at 1AGoogle Scholar; e.g., Morris, E.G., Civil Commitment vs. Life in Prison: What Andrea Yates Knew That Deanna Laney Didn't, Tex. Lawyer 27 (04 12, 2004)Google Scholar; Springer, John, Mother Goes On Trial For Stoning Sons, CNN.com (11 1, 2005), available at http://www.cnn.com/2005/LAW/11/01/laney.trial/index.htmlGoogle Scholar; Deanna Laney's Husband Testifies, (KLTV television broadcast Mar. 29, 2004) (footage of Keith Laney's testimony).

136. Laney v. State, 223 S.W. 3d 656, 658 (Tex. Ct. App. 2007).

137. E.g., Knight, supra note 131, 264 S.W. 2d at 695.

138. See, e.g., Assemblies of God Statement of Fundamental Truths, available at http://ag.org/top/Beliefs/Statement_of_Fundamental_Trums/sft_short.cfm; Southern Baptist Faith and Message, available at http://ww.sbc.net/bfm/bfm2000.asp; Balmer, Randall, Mine Eyes Have Seen the Glory: A Journey into the evangelical Subculture in America (Oxford Univ. Press 1993)Google Scholar; Ammerman, Nancy M., North American Protestant Fundamentalism, in Media, Culture, and the Religious Right ch. 3 (Kintz, Linda & Lesage, Julia eds., Univ. Minn. Press 1998)Google Scholar.

139. See Mason, supra note 1, at 226 fn. 5 (citing the University of Chicago, National Opinion Research Center, General Social Survey, available at http://webapp.icpsr.umich.edu); see also, 63% Believe Bible Literally True, Rasmussen Reports, Apr. 23, 2005, legacy.rasmussenreports.com/2005/Bible.htm (last visited Apr. 23, 2010).

140. See O'Malley, supra; Salecl, Renata, Psychoanalysis and Infanticide, 24 Card. L. Rev. 2467, 2479 (2003)Google Scholar (“When I researched material for this article on the Internet, I realized that almost every single detail from Andrea's life is already exposed to the public”).

141. Id. at 2471.

142. See, e.g., id. at 2467 (describing Woronieki's “apocalyptic views about the end of our consumerist society and the dangers of sinful mothers”); id. at 2472 (“[I]n [a] private letter[] to Andrea… [Woronieki] wrote ‘that the role of woman is derived … from the sin of Eve’ and that bad children come from bad mothers,”) (quoting Roche, Timothy, The Yates Odyssey, Time, 01 28, 2002, at 42, 48)Google Scholar.

143. Id. at 2472-73.

144. Id. at 2472.

145. Id.

146. See, e.g., Woman Not Guilty in Retrial in the Deaths of Her 5 Children, N.Y. Times, July 27, 2006, at A20.

147. Morris, supra note 137.

148. See State v. Kelley, 2002 WL 927610 (Tenn. Crim. App. 2002).

149. Id. at 10.

150. Id. at 6.

151. Id.

152. Id. at 18-22. The court affirmed the conviction on the grounds that there was substantial evidence for the jury's finding that he nonetheless knew that his action was wrong. (Such findings raise their own conceptual problems, of course.).

153. Id. at 24.

154. See id.

155. Archie v. Ala., 875 So. 2d 336, 343 (Ala. Crim. App. 2003).

156. Id. at 338.

157. Id. at 343.

158. Mason, supra note 1, at 226.

159. Archie, supra note 157, 875 So. 2d at 344 (majority opinion) (“The record indicates that Archie was unquestionably suffering from a severe mental illness when she killed her daughter; the State does not argue otherwise.”); id. (Shaw, J., concurring) (“[T]he undisputed evidence presented at trial indicated that Archie was mentally ill when she shot and killed her daughter (a fact the State concedes) and that by virtue of delusions resulting from that mental illness she was unable to conform her conduct to the requirements of the law.”); id. at 350 (Cobb, J., dissenting) (“The testimony in this record permits only the conclusion that Teresa Ann Archie was insane before she shot her daughter, she was insane at the time of the shooting, and she was insane after she shot her daughter. … The jury ignored the overwhelming evidence regarding Archie's mental state that demonstrated that Archie could not appreciate the nature and quality or wrongfulness of her acts. Archie is entitled to a judgment of acquittal.”).

160. Telephone Interview with attorney Buck Files, May 2005.

161. For a fascinating anthropological reflection on one such case (in which the defendant killed his youngest child in an explicit reenactment of Genesis 22, mounted an insanity defense with no evidence of insanity other than religious belief, and was acquitted), see Delaney, Carol, Abraham on Trial (Princeton Univ. Press 2000)Google Scholar.

162. Commonwealth v. Robidoux, 877 N.E.2d 232, 248 (Mass. 2007). The court, furthermore, cited Ballard for that proposition!

163. In first degree murder cases, “the court may, if satisfied that the verdict was against the law or the weight of the evidence, or because of newly discovered evidence, or for any other reason that justice may require (a) order a new trial or (b) direct the entry of a verdict of a lesser degree of guilt.” Mass. Gen. Laws ch. 278 § 33E.

164. See Robidoux, supra note 164, 877 N.E.2d at 248.

165. See, e.g., Schneiderer, Judith Inglis, When Children Die as a Result of Religious Practices, 51 Ohio St. L.J. 1429 (1990)Google Scholar.

166. Walker v. Superior Court, 763 P.2d 852 (Cal. 1988).

167. There is obviously an equitable (at least) difference between the two cases insofar as Robidoux actively caused his son's condition by purposely denying him food, while Walker did not cause her daughter to contract meningitis. Their defenses to the homicide charge, however, are identical. See Robidoux, supra note 164, 877 N.E.2d 232.

168. LaFave, Wayne R. & Scott, Austin W., Criminal Law 248 (Thomson/West 1986)Google Scholar. But the Ballard problem may arise here too, because the jury must still decide whether the defendant actually believed what he says he did, and the objective likelihood of the belief is an unavoidable component of that determination. See, e.g., Beschle, Donald, Paradigms Lost: The Second Circuit Faces the New Era of Religion Clause Jurisprudence, 57 Brook. L. Rev. 547, 584 n. 167 (1991)Google Scholar (“This is the problem at the heart of United States v. Ballard. A court may not reject a religious claim on the grounds that it is false but may on the ground that it is insincere. But how can a factfinder, in determining sincerity, totally ignore the objective reasonableness of the claim?”).

169. E.g., People v. Watson, 637 P.2d 279, 296 (Cal. 1981).

170. Robidoux, supra note 164, at 238.

171. Id.

172. Id. at 244.

173. Id. at 247 n. 9 (quoting jury instructions).

174. Id. at 248.

175. Id. (internal citations omitted).

176. President Obama has stated that he plans to close the Guantanamo prison and bring remaining detainees to the U.S. for trial. Some detainees have now, as of this writing, already been brought here for trial. See, e.g., Baker, Peter, Obama Challenges Terrorism Critics, N.Y. Times, 02 8, 2010, at A12Google Scholar; Shane, Scott, Site for Terror Trial Isn't Its Only Obstacle, N.Y. Times, 01 31, 2010, at A18Google Scholar. Boumediene v. Bush, 553 U.S. 723 (2008), held that detainees held by the U.S. at Guantanamo have habeas rights. That holding negated the purpose of the Guantanamo prison, which was to ensure that detainees never got into federal court.

177. The defendants might be foreign or domestic, Islamic by birth or recent converts. The claim would simply be that they had come to believe certain doctrines that they now recognize as delusions. Chief among these, presumably, would be the promise of instant martyrdom and transit to paradise upon completion of a terrorist act. One doubts that Khalid Sheikh Mohammed, probably the first to be tried, will make such a claim, but others might.

178. I think U.S.-born adult converts might be good candidates for the defense. If U.S.-national Al Qaeda spokesman Adam Gadahn is ever caught and repatriated, his lawyers would surely want to look into it. So would the lawyers for alleged would be U.S.-born terrorist “Talib Islam,” charged in a plot to blow up a building. “American Taliban” John Walker Lindh might have been a candidate as well, had he not been offered a quick deal in a highly unfavorable public climate.

179. Boumediene v. Bush, 523 U.S. 723 (2008) (holding that Guantanamo detainees have a constitutional right to file habeas petitions). I don't think there is a good argument that the defendant's Free Exercise claim should be considered waived if he pleads religious insanity. I would argue that the Ballard issue is non-waiveable for the same reasons that taxpayer standing is (occasionally) found in Establishment Clause cases: the injury accrues to the community at large, so individual waiver is not appropriate. The defendant is asking the court to make a finding it cannot constitutionally make, and the ramifications of the requested holding ripple far beyond the confines of the single trial. For example, as I have argued in the context of the Laney case, it is not necessarily a victory for Laney's church that she was acquitted by reason of insanity, on the basis of beliefs that were found by the court to be insane delusions, but that also reflected a relatively mainstream millenarianism.

180. In January 2010 I wrote a post on Prawfsblog about this issue and laid out the Scylla and Charybdis aspect of the religious insanity defense in terrorism trials. Mason, Caleb, Terorism Trials and the Constitutionality of the Religious Insanity Defense, Prawfsblog, 01 6, 2010, http://prawfsblawg.blogs.coni/prawfsblawg/2010/01/terrorismthe-religious-insanity-defense.htmlGoogle Scholar. My analysis was picked up in an article by two prominent military officials (a former JAG officer and a former Undersecretary of Defense). They put it as follows:

If [Hasan] pleads insanity, he has to renounce whatever parts of Islam “compelled” him to murder. If he avoids the insanity plea he is—to use the appropriate judicial term—toast. Can you be sane under American law and still be a homicidal jihadist? Of course. And if he pleads insanity, it will be a huge ideological victory for everyone who is fighting Islamofascism.

Rehyansky, Joe & Babin, Jed, Hasan's Insanity Plea, Human Events, 01 25, 2010, available at http://www.humanevents.com/article.php?id=35310Google Scholar. I am in agreement with Babin and Rehyansky up to the last sentence. I am not convinced that the fight against Islamic terrorism will benefit if U.S. courts hold that Islamic doctrines are insane delusions, and I worry about the detrimental effects of such a ruling not just on our efforts to fight terrorism, but also to protect religious freedom here at home.

181. Hasan Won't Plead Guilty, May Use Insanity Defense, Lawyer Says, Fox News (11 24, 2009), available at http://www.foxnews.com/story/0,2933,576125,00.htmlGoogle Scholar.

182. Another possibility would have been in the trial of Carlos Bledsoe, a.k.a. Abdulhakim Mujahid Muhammad, an American convert to Islam who shot two soldiers, killing one, in Little Rock, Arkansas in June 2009 and will face trial for murder next year. Dao, James, Man Claims Terror Ties In Little Rock Shooting, N.Y. Times, 01 22, 2010, at A13Google Scholar. A religious insanity defense would have seemed like a good possibility, assuming the defendant would be on board with renouncing his adopted identity and religion and declaring himself the victim of insane delusion. However, the defendant appears not to be on board with it. On January 21, 2010, he sent a letter to the judge stating: “I wasn't insane or post traumatic nor was I forced to do this act. Which I believe and it is justified according to Islamic laws and the Islamic religion jihad—to fight those who wage war on Islam and Muslims.” Id. “Religious justification,” one need hardly point out, is not a defense. See, e.g., Reynolds v. U.S., 98 U.S. 145 (1878).

The Bledsoe case would have been particularly significant if the prosecution had opposed the defense on Ballard grounds, because the Arkansas courts would have had to think carefully about the reach of Archie.

183. Once a court ruled, as in Robidoux, that as a matter of law, religious beliefs do not constitute insane delusions, the court could instruct the jury accordingly, refuse to give an insanity defense instruction, and, if appropriate, bar the defense from introducing evidence of the defendant's religious beliefs, on the grounds that such evidence is not relevant to any defense. This would prevent terrorism defendants from using their trials as platforms for making legally irrelevant religious justification arguments under the guise of insanity claims. See, e.g., State v. Reynolds, supra note 143, 550 N.E.2d at 495:

When from the evidence reasonable minds may reach different conclusions upon the question of insanity, such question of fact is for the jury. If, however, after giving the evidence the most favorable interpretation in favor of the defendant, reasonable minds can come to but one conclusion and that conclusion is adverse to defendant, it is the trial court's duty to rule on the issue as a matter of law.

184. E.g., John T. Noonan, supra note 4.

185. E.g., Hamilton, supra note 1.

186. See Ballard, supra note 2, 322 U.S. at 92, 95 (Jackson, J., dissenting):

I should say that the Ballards have done just that for which they were indicted … The wrong of these things, as I see it, is not in the money the victims part with half so much as in the mental and spiritual poison they get. But that is precisely the thing the Constitution put beyond the reach of the prosecutor, for the price of freedom of religion or of speech or of the press is that we must put up with, and even pay for, a good deal of rubbish.

187. Perhaps, you say, the rule favors “religion generally” in such cases, because it spares adherents the social costs of a court ruling declaring their beliefs delusions. Perhaps. But there are a myriad of potential disputes, including those where both parties assert religiously-inflected beliefs, where it will not be clear that refusing to hear the case produces a desirable outcome for anyone. Indeed, such a rule ultimately simply ratifies the status quo ex ante, whatever it is—or legitimizes a bare appeal to force.