When can a church be accused of a crime?

St. Petersburg Times, December 8, 1999
By Howard Troxler

There is a story about lawyers that involves a flower pot falling off a high ledge. A passer-by sues, claiming he was injured.

The defense lawyer answers:
First, it wasn't our pot.
Second, if it was, it didn't fall.
Third, if it fell, it didn't hit you.
Fourth, if it hit you, you weren't hurt.
This "flower pot strategy" is being employed by both sides in the current criminal case against a corporation of the Church of Scientology. Both sides' arguments are excellent.

Lisa McPherson, 36, was a Scientologist who died after being under the church's care in Clearwater in 1995. The state has filed charges of abuse and practicing unlicensed medicine against the church's Flag Service Organization, or simply "Flag."

McPherson died that Dec. 5 after 17 days at the church's Fort Harrison Hotel under the supervision of Scientologists. The state says she died of a pulmonary embolism, with dehydration and immobility as contributing factors. The state says her final days featured raving delusions and forced medication.

Flag's lawyers seek to have the charges dismissed. First, they say it is a violation of the First Amendment, and laws that protect religious freedom, to charge the entire organization instead of individuals (if anybody at all). It is an overbroad and damaging interference with religion.

Second, even if Flag can be charged, it is unconstitutional to punish Scientologists for their religious belief opposing psychiatric care. After all, the law cannot force a Christian Scientist to accept medical care, or a member of Jehovah's Witnesses a blood transfusion.

Third, even if the laws of abuse and unlicensed medicine were violated, that was done by "errant, albeit well-meaning" individuals, and not by Flag or the church itself, the lawyers argue.

"The state indeed has the power to inflict far greater and wider punishment by prosecuting the church rather than the individuals," Flag's lawyers argue. "But it has no legitimate interest in so doing."

Florida politicians, pay attention. This is your doing. This argument is based in part on the state Religious Freedom Restoration Act of 1998, which the Legislature passed as a sop to the Christian Coalition. I'll bet nobody had the Scientologists in mind.

This law says that the state must have a "compelling interest" before imposing a burden on the exercise of religion. Even then, the state must use the "least restrictive means necessary."

Bernie McCabe, the Pinellas-Pasco state attorney, and his assistants have filed a vigorous counter-argument.

First, Flag's treatment of McPherson is not about religious freedom, they argue. It was not consistent with the church's own doctrine. Second, even if there is a legitimate claim of religious freedom, that freedom does not protect a crime. The most famous example is that Mormons can be prosecuted for bigamy.

Third, even if the religious-freedom law applies, these charges are not a "substantial burden" on the church. Mere bad publicity is not an impermissible burden. Neither are the minimal potential fines involved. Finally, the state argues that Flag should be charged because the organization as a whole, many of its officers and staffers, were involved in or aware of McPherson's case. This was not a case of one or two loose cannons.

"The complicity in the crimes arising out of Lisa's stay at the Fort Harrison is widespread," the state argues, "and the responsibility for the failure to act is collective."

How would you rule? Like the Scientologists' lawyers, I am not keen on the idea of charging churches with crimes. But not many people die in a church's care because of alleged negligence, either. I would deny the motion to dismiss and let a jury decide the central question of fact -- did Flag as an institution break the law in Lisa McPherson's death?