Leal v. Holy Spirit Ass'n for Unification of World Christianity

ANDERSON (Carl W.), J.,* Concurring and Dissenting.

I concur with the majority regarding the disposition of the false imprisonment cause of action as well as the claims raised in the cross-complaint, but respectfully *1129disagree with the reversal of summary judgment in connection with the fraud, intentional infliction of emotional distress and the restitution counts. I am strongly persuaded that the imposition of tort liability for “heavenly deception” in proselytizing and for its ensuing “systematic manipulation of social influences” (religious persuasion) runs counter to established legal precedents and the free exercise clause of the First Amendment. Furthermore, imposition of liability in such cases constitutes bad legal policy, since it unnecessarily projects the court into the arena of divining the truth or falsity of religious beliefs. I respectfully suggest that the trial court’s thorough analysis and the Court of Appeal’s well-reasoned affirmance thereof correctly apply the law.

I. Fraud

Under well-settled law, the necessary elements of fraud are: (1) misrepresentation (false representation, concealment or nondisclosure); (2) knowledge of falsity (scienter); (3) intent to defraud (i.e., to induce reliance); (4) justifiable reliance; and (5) resulting damage. (Seeger v. Odell (1941) 18 Cal.2d 409, 411 [115 P.2d 977, 136 A.L.R. 1291]; 4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, § 446, p. 2711.) It is likewise recognized that in order to render the fraud actionable, the misrepresentation or nondisclosure must be not only the cause in fact (causa sine qua non), but also the legal or immediate cause of the damages. Indeed, the majority quite agrees: “Justifiable reliance exists when the misrepresentation or nondisclosure was an immediate cause of the plaintiff’s conduct which alters his legal relations, and when without such misrepresentation or nondisclosure he would not, in all probability, have entered into the contract or other transaction. (Wennerholm v. Stanford Univ. Sch. of Med. (1942) 20 Cal.2d 713, 717 [128 P.2d 522, 141 A.L.R. 1358]; Spinks v. Clark (1905) 147 Cal. 439, 444 [82 P. 45].)” (Italics added.) However, contrary to the conclusion reached by the majority, I find appellants’ fraud cause of action fatally defective for two fundamental reasons: (1) the record fails to show that the initial fraud committed by the proselytizers was relied upon by appellants at the crucial time of joining the Church; and (2) the immediate cause of appellants’ damages was not the incipient fraud but rather the ensuing indoctrination and conversion (dubbed by the majority as “brainwashing”). However, the indoctrination achieved by persuasion absent physical force or violence is not unlawful; religious conversion is simply not subject to judicial review. It follows that neither of these questions creates a triable issue of fact which defeats the grant of summary judgment.

A. Reliance on Initial Misrepresentations

In granting summary judgment on the fraud cause of action, the trial court found that appellants, by their own admissions, joined the Unification *1130Church (Church) because that “Association satisfied personal concerns and anxieties both were experiencing”; it did not find they joined in reliance on the initial misrepresentations of the recruiters. This finding of the trial court is well supported by the record.

Molko’s deposition reveals that his reason for accepting the invitation to participate was to improve himself and to become a better person. As early as the second day spent in Boonville, Molko already felt involved and was attracted to the group because of the brotherly love experienced there. Although the regimented life was not entirely to his liking, he stayed there because: (1) he was thinking about the meaning of his life; (2) he was curious; and (3) he wanted to know people better, especially Bethie Ruben-stein and Gloria LaGrasse who were “fascinating, intelligent—a joy to be with.” On learning within less than two weeks that the group belonged to the “Moonies,” Molko (while admittedly confused a bit) took a “wait and see” attitude, remained with the group and repeatedly rejected calls coming from friends and parents imploring him to quit.

Leal accepted the initial invitation also for personal reasons. She had little emotional and psychological support from her family and was longing for affection and understanding. She left San Diego, a “cold and impersonal” city in search of a community. She went to Boonville to “learn how a community gets together to actually accomplish something.” By the fourth day she felt completely involved. She was attracted by the sincere, affectionate attention she received from the group and stayed there because she was happy and grew attached to the group which overwhelmed her with praise and love and promised to take care of her and provide all the things she had ever wanted. In addition, she was impressed by the commitment and hard work of the others, and was anxious to prove herself worthy of their attention. Also, she found the relinquishment of individual responsibility and the acceptance of a group identity to be true happiness, akin to “the joy of childhood.” In her own words: “Departing from Boonville was prevented as a result of large doses of attention and listening and care such as that between highly expressive, loving friends or family.”

Despite these undisputed facts the majority maintains that appellants’ behavior following the initial fraud did not negate the element of reliance (i.e., the initial fraud was not “cured”); they conclude that as a result of the Church’s initial “heavenly deception” (i.e., fraudulent conduct), appellants were placed in a situation where they were “brainwashed” and thereby deprived of their independent judgment. The majority predicates this “brainwashing” theory primarily upon appellants’ declarations that due to the rigid indoctrination, psychological and emotional pressure, they lost their ability to freely decide to stay with the group and, instead, they acted in a robot-like manner. Such conclusion fails to withstand critical analysis.

*1131Under the widely adopted view, the fact that the religious belief does not originate in a voluntary choice does not, as a rule, raise a presumption of incapacity to affirm the belief as one’s own. (Shapiro, “Mind Control” or Intensity of Faith: The Constitutional Protection of Religious Beliefs (1978) 13 Harv. Civ. Liberties L.Rev. 751, 789.) To the contrary, it has been said that “An intentional deception should not justify impinging upon a convert’s ideas, so long as the convert has the ability to affirm his faith after the deception is realized. If he retains his personhood [i.e., the capacity to evaluate the commitment], ... he can still adopt or ratify the beliefs as his own.” (Shapiro, Of Robots, Persons and the Protection of Religious Beliefs (1982-1983) 56 So.Cal.L.Rev. 1277, 1295.) By illustration, Mr. Shapiro points out that if the proselytizer had offered merely a self-improvement course and the subsequent banquet and lectures in fact had aimed at converting the recruit to a religion, the deceptiveness of the introduction would be immaterial as long as the convert would be still capable of adopting or affirming his belief. (Ibid.)

The evidence before us, including appellants’ depositions, clearly indicates that the Church’s indoctrination did not render appellants mindless puppets or robot-like creatures. Instead, it shows that both before and after the disclosure of the group’s true identity, both appellants retained their ability to think, to evaluate the events and to exercise their independent judgment. For example, the record reveals that on the first two days in Boonville Molko became so dissatisfied with the regimented life that he decided to return to San Francisco. He discussed his decision with two other members of the group. While he was advised that he was free to leave, he decided to stay because he was persuaded that it was to his own benefit to do so. Also, during the first week in Boonville Molko expressed with other people (although in private) his resentment about the lectures and regimentation and on noticing that he was being followed by Joe Taylor, a Church member, he violently confronted him, threatening to smash him in the face. After learning that the group was connected with the Church, Molko did not simply acquiesce, but rather consulted Gloria, and his decision to stay was again the result of an evaluation of this turn of events. Lastly, despite all the lectures, discussion and other forms of indoctrination, Molko still doubted that Reverend Moon was the new Messiah and he shared his doubts with other Church members as well, including Gloria and Victoria.

The deposition testimony of appellant Leal is likewise replete with facts indicating that her joining the Church did not rest upon reliance on the initial representation, but rather her conscious evaluation and adoption of the Church’s teachings. In view of this sworn testimony, the unsupported allegations of brainwashing in appellants’ pleadings and declarations should *1132not be deemed sufficient to raise that triable issue of material fact which requires reversal of the grant of summary judgment.

B. Conversion Is the Immediate Cause of Damages

Reversal of summary judgment is improper for the additional reason that the immediate cause of damages was not the incipient fraud, i.e., heavenly deception, but rather the ensuing indoctrination effected by “brainwashing” which ultimately resulted in appellants’ conversion. That the gist of appellants’ fraud complaint was that the conversion was achieved by actionable “brainwashing” is manifest. Indeed, the majority so defines the issue (ante, at p. 1109): “Molko and Leal therefore contend that a triable issue of fact remains as to whether the Church brainwashed them prior to disclosing its identity. If the answer is affirmative, they urge, they have established justifiable reliance.” Again, the majority declares that appellants’ “statements are consistent with the contention that they were deceived into a situation in which they were then brainwashed” and summary judgment on the fraud count must be overturned because the brainwashing theory advanced in appellants’ declarations presented a triable issue of fact. This same notion not unsurprisingly has its genesis in appellants’ briefs. For example, Molko asserts in his opening brief that “By means of deceits and deceptions utilized in order to place plaintiff in Boonville, plaintiff was abruptly thrust into an environment directed entirely toward the conversion of plaintiff’s allegiance to accept Sun Myung Moon as the Messiah and to become a member of the Unification Church .... The conversion of plaintiff occurred in an unusual place.” (Italics partially added.) Amici curiae likewise emphasize that the immediate cause of damages was the process of conversion which has been known by many labels—brainwashing, thought reform, coercive persuasion, etc.

Identification of the indoctrination (i.e., “brainwashing”) and the conversion as the critical issues for determining the applicability of summary judgment carries far-reaching legal significance. For under settled law the indoctrination methods employed in obtaining conversion (including coercive persuasion, mind control and/or brainwashing) are not actionable per se; religious conversion is not subject to judicial scrutiny regardless of the methods used because such scrutiny necessarily entails the questioning of religious faith—scrutiny that is absolutely forbidden by the First Amendment. Moreover, even if judicial scrutiny were permitted, governmental interference in this case is not warranted.

(1) The Indoctrination Is Not Actionable

The primary cases holding that religious indoctrination, even if achieved by “brainwashing,” is not tortious if unaccompanied by physical force or *1133threat are Lewis v. Holy Spirit Ass’n for Unification (D.Mass. 1983) 589 F.Supp. 10; Meroni v. Holy Spirit Ass’n for Unification (1986) 119 App.Div.2d 200 [506 N.Y.S.2d 174]; and Application of Conversion Center (1957) 388 Pa. 239 [130 A.2d 107].

The Lewis plaintiff, a former member of the Unification Church, brought a tort action against the Church alleging, inter alia, that he was subjected to brainwashing and that as a result thereof he suffered psychiatric disorders. In dismissing plaintiff’s tort claims, the court stated: “Both of the plaintiff’s claims in tort are seriously flawed. Indoctrination and initiation procedures and conditions of membership in a religious organization are generally not subject to judicial review [citations]. Similarly, the plaintiff has not indicated any precedent for recognition of the tort of brainwashing, and my own research has revealed none.” (Lewis v. Holy Spirit Ass’n for Unification, supra, 589 F.Supp. at p. 12.)

In Meroni, the plaintiff’s son entered the training and indoctrination program of the Unification Church; after one month he left the program and committed suicide. In an action against the Church plaintiff purported to state causes of action in tort contending that the decedent, an emotionally disturbed youth, was subjected to highly programmed behavior techniques (such as intensive physical exercises, isolation, lectures, confession, strict work and study schedules) as a result of which he was brainwashed. In dismissing the action the court opined that the indoctrination methods of the Church were not tortious. “The conduct of the defendant Unification Church . . . which the plaintiff seeks to classify as tortious, constitutes common and accepted religious proselytizing practices, e.g., fasting, chanting, physical exercises, cloistered living, confessions, lectures, and a highly structured work and study schedule. To the extent that the plaintiff alleges that the decedent was ‘brainwashed’ as a result of the church’s program, this claim must be viewed in the context of the situation as a whole, i.e., as a method of religious indoctrination that is neither extreme nor outrageous . . . .” (Meroni v. Holy Spirit Ass’n for Unification, supra, 506 N.Y.S.2d at p. 177.) In finding the brainwashing nontortious in the absence of physical violence or mental torture, the court remarked: “It is important to note that no facts are set forth which would warrant the conclusion that the plaintiff’s decedent was falsely imprisoned by the appellant or that he was subjected to any form of violence, or physical or mental torture, as such. The claim of brainwashing is based upon the activities heretofore described, which, as previously noted, are commonly used by religious and other groups, and are accepted by society as legitimate means of indoctrination. They are not classifiable as so extreme or outrageous, or offensive to society, as to incur liability therefor.” (Id., at pp. 177-178, italics added.)

In Application of Conversion Center, supra, 130 A.2d 107, the court recognized that persuasion is an integral part of many religious organizations and *1134a positively protected aspect of the free exercise of religion: “The 14th Amendment of the Constitution of the United States which incorporates the 1st Amendment, guarantees the free exercise of religion .... Not only is a citizen of this country entitled to the free expression of his religious beliefs, but he may by peaceful persuasion endeavor to convert others thereto, and we are aware of no bar to individuals organizing to effectuate their guaranteed rights in this regard. . . . . Propagation of belief—or even of disbelief in the supernatural—is protected whether in church or chapel, mosque or synagogue, tabernacle or meetinghouse. . . .’ ” (Id., at p. 110, italics added.)

(2) The Conversion Is Not Actionable

The majority concedes that the free exercise clause of the First Amendment provides absolute protection for religious beliefs (Cantwell v. Connecticut (1940) 310 U.S. 296, 303-304 [84 L.Ed. 1213, 1217-1218, 60 S.Ct. 900, 128 A.L.R. 1352]); that the government cannot discriminate against individuals or groups because they hold views abhorrent to the authorities (Fowler v. Rhode Island (1952) 345 U.S. 67, 70 [97 L.Ed. 828, 831, 73 S.Ct. 526]); and that while the court can inquire into the sincerity of an individual’s beliefs, it may not judge the truth or falsity of those beliefs (United States v. Ballard (1944) 322 U.S. 78, 86-88 [88 L.Ed. 1148, 1153-1155, 64 S.Ct. 882]). However, the majority concludes that while religious belief is absolutely protected, religious conduct is not (Sherbert v. Verner (1963) 374 U.S. 398, 402-403 [10 L.Ed.2d 965, 969-970, 83 S.Ct. 1790]; People v. Woody (1964) 61 Cal.2d 716, 718 [40 Cal.Rptr. 69, 24, 28-36, 394 P.2d 813]); that conduct even if religiously motivated is subject to regulation for the protection of society (Cantwell v. Connecticut, supra, 310 U.S. at p. 304 [84 L.Ed. at p. 1218]); and that the Church’s initial fraud which led to the brainwashing of appellants was conduct which, under the balancing test required by the First Amendment, can be penalized with tort sanctions based upon a compelling state interest (Wisconsin v. Yoder (1972) 406 U.S. 205, 214, 221-235 [32 L.Ed.2d 15, 92 S.Ct. 1526]).

I respectfully submit that this reasoning is flawed. To begin with, the conduct which according to the majority constitutes a triable issue of fact is not only the initial fraud (an act clearly subject to proof), but also the subsequent “brainwashing” and conversion—matters comprising not only sociological or psychological phenomena, but also involving intangible elements of religious belief. It follows that brainwashing and conversion are so inextricably intertwined with religious faith that they dannot be scrutinized, much less proven, without questioning the authenticity of the religious teachings of the Church. (See detailed discussion, infra.) Such inquiry is absolutely proscribed by the free exercise clause of the First Amendment.

The proposition that the act or conduct of a religious organization or its members is immune from judicial scrutiny if the proof thereof calls into *1135question the truth or falsity of religious faith is well established in case law as well as in legal commentary.

United States v. Ballard, supra, 322 U.S. 78, the leading case defining the parameters of the constitutional protection of religious faith, dealt with prosecution of religious fraud. Therein it was alleged that respondents, founders of the “I am” movement, fraudulently represented that they were divine messengers; that they had miraculous powers to heal all diseases and, in fact, had cured hundreds of afflicted people; and that as a result of these misrepresentations, they obtained money from the public through the mail. The trial court excluded from jury consideration the issue of the truth or falsity of respondents’ claim of divine designation and miraculous powers, and the case was submitted on the sole issue of whether respondents made those claims in good faith. In approving the trial court’s ruling, the Supreme Court reasoned: “Freedom of thought, which includes freedom of religious belief, is basic in a society of free men. [Citation.] It embraces the right to maintain theories of life and of death and of the hereafter which are rank heresy to followers of the orthodox faiths. Heresy trials are foreign to our Constitution. Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs. Religious experiences which are as real as life to some may be incomprehensible to others. Yet the fact that they may be beyond the ken of mortals does not mean that they can be made suspect before the law. Many take their gospel from the New Testament. But it would hardly be supposed that they could be tried before a jury charged with the duty of determining whether those teachings contained false representations. The miracles of the New Testament, the Divinity of Christ, life after death, the power of prayer are deep in the religious convictions of many. If one could be sent to jail because a jury in a hostile environment found those teachings false, little indeed would be left of religious freedom. The Fathers of the Constitution were not unaware of the varied and extreme views of religious sects, of the violence of disagreement among them, and of the lack of any one religious creed on which all men would agree. They fashioned a charter of government which envisaged the widest possible toleration of conflicting views. Man’s relation to his God was made no concern of the state. He was granted the right to worship as he pleased and to answer to no man for the verity of his religious views. The religious views espoused by respondents might seem incredible, if not preposterous, to most people. But if those doctrines are subject to trial before a jury charged with finding their truth or falsity, then the same can be done with the religious beliefs of any sect. When the triers of fact undertake that task, they enter a forbidden domain. (Id., at pp. 86-87 [88 L.Ed. at p. 1154], italics added.)

Another analogous case involving religiously motivated fraud is Founding Church of Scientology v. United States (D.C. Cir. 1969) 409 F.2d 1146 *1136[133 App.D.C. 229, 13 A.L.R.Fed. 721]. In Founding Church, appellants (Church of Scientology and its adherents) were charged with false and misleading labeling under the Federal Food, Drug and Cosmetic Act (21 U.S.C. § 301 et seq.), based upon their representation that the Hubbard Electrometer (E meter) can cure both bodily and mental ailments.1 The government seized the electric instruments and religious literature describing church doctrine and alleged that they were the instrumentalities by which the fraud was committed. At trial the government introduced expert evidence showing that the E meter was of no use in the diagnosis and treatment of any disease or mental disorder (i.e., that the church’s representations were false), and it also introduced thousands of pages of Scientology literature relevant to the issue of mislabeling. Based thereon, the jury found appellants guilty of false and misleading labeling. The Court of Appeal reversed in concluding that under Ballard expert testimony was not admissible to disprove appellants’ representations and that the religious Scriptures of the church were not subject to courtroom evaluation. Significantly enough, the court noted: “The statements concerning the powers of auditing over the ills of mind and body are not readily separable from general statements of Scientological doctrines concerning the nature of man and the relationship of his mind to his body. Many will find these doctrines, those which relate to health as well as those which do not, absurd or incoherent. But the Ballard case makes suspect the legal inquisition of such doctrines where they are held as religious tenets.” {Id., at p. 1159.)

Even more analogous to this case is Katz v. Superior Court (1977) 73 Cal.App.3d 952 [141 Cal.Rptr. 234], in which the parents of Unification Church members brought an action for conservatorship: they claimed that their children were subjected to coercive persuasion and brainwashing through food and sleep deprivation, isolation, fear tactics, use of guilty feelings and indoctrination; they offered psychiatric and psychological expert evidence to establish such claims. The Katz court was unwilling to inquire into the merit of the assertions because it felt the evaluation of evidence relevant to whether the change in the individual’s life style was effected by brainwashing or religious faith, necessarily requires an investigation and questioning of the validity of that faith. {Id., at pp. 987-988.)

The majority’s effort to distinguish Katz from the case at bench is not persuasive. While Katz arose, indeed, in a somewhat different legal setting (i.e., the action was brought by the parents rather than ex-church members; they were seeking conservatorship orders under Prob. Code, § 1751; and their purpose was to deprogram their children, etc.), the pivotal issue was *1137the same: were the children brainwashed by the church and was their brainwashing subject to proof in a court proceeding?

1 respectfully disagree with the majority’s suggestion that the primary assertion here, as opposed to Katz, is the initial fraud in recruiting, and is therefore conduct which can be judicially scrutinized. From their language, however, it clearly appears that the wrongful conduct which is at the core of the controversy is the fraudulently induced brainwashing.2 However, as the majority admits, the first part of the issue (i.e., the knowing misrepresentation of the Church’s identity and the intent to induce appellants to participate in the Church’s activities) is conceded by the Church. The remaining triable issue of fact is therefore limited to the alleged “brainwashing” which resulted in appellants’ conversion and their joining the Church. What fact is it that the majority remands to be determined at trial? The same fact that Katz found immune from judicial scrutiny, i.e., was the conversion (or “brainwashing”) induced by coercive indoctrination or by religious persuasion? That such question is not for mortal courts to resolve is unequivocally answered by Katz-. No such proof or judicial inquiry is possible without questioning the person’s underlying faith—an inquiry which is absolutely forbidden by the First Amendment.

The teachings of Katz that “brainwashing” and religious conversion are not really distinguishable; that the methods used in each are either identical or very similar; and that proof of the existence of each is virtually identical are well illustrated by the present case. The expert testimony here was offered to show that the .brainwashing of appellants was achieved by “a systematic manipulation of social influences” which consisted mainly of the following: (1) control over the social and physical environment; (2) separation of the recruits from the outside world (including friends and family members); (3) influencing individual behavior through rewards, punishments and experiences; (4) oppression of criticism of the Church; and (5) attainment of a special uniform state of mind. However, as demonstrated below, all of these methods are used by the more widely accepted and/or tolerated churches in effecting religious conversion.

The effect of conversion, generally speaking, is spiritual rebirth—that is, attainment of a new life. The first step in that direction is a separation from the previous environment to a place where one can meditate and contemplate without distraction. Our world’s numerous monasteries and convents demonstrate how retreat and isolation can promote single-minded devotion *1138to God. The separation from friends and family members may be an important step in achieving this goal. Jesus Christ is quoted as saying: “He who loves father or mother more than me is not worthy of me.” (Matthew, 10:34-38.) The Mennonites likewise teach that true Christians must be prepared to take upon themselves the cross of Christ, and forsake father, mother, husband, wife, children, possessions and the self, for the sake of the testimony of His Holy Word when the honor and praise of God require it. (J. Wenger, Glimpses of Mennonite History and Doctrine (2d ed. 1947).) Although transcending one’s family may be traumatic and painful, it is sometimes an essential element in the pilgrimage of faith. The guilt and awareness of sin also may be an important factor leading to conversion. The promise of salvation and the threat of damnation are the very foundation of the life of the devout. Ascetic, regulated life, hard work, fasting and giving up earthly pleasures are also parts of many religious teachings aimed at spiritual purity and pleasing God. The dogmatic approach and intolerance of criticism are not uncommon with established religions which profess that divine truth is revealed in Holy Scriptures, church dogmas and in ex cathedra declarations of anointed leaders (e.g., papal infallibility in the Catholic Church) which is not to be questioned by faithful followers. Finally, the introverted view forsaking interest in the outside world necessarily flows from the religious teaching that one must separate himself or herself from the world dominated by Satan and his evil forces in order to join and serve God’s kingdom.

Indeed, what this expert evidence characterizes as indicia of brainwashing or mind control, might very well be equated with the more popularly accepted symptoms of genuine religious conversion. Religious behavioral change induced by the mystery of faith cannot be proved or disproved by secular science, which limits its scope of inquiry to tangible, rational and logical phenomena, comprehensible and explainable by human reasons. As Mr. Shapiro states in his essay: “Religious beliefs—whether held by adherents to new sects or by ‘mainstream’ believers—may not be dictated by societal norms. Such norms can easily encourage labels that transform religious beliefs into illnesses. ‘A religion becomes a cult; proselytization becomes brainwashing; persuasion becomes propaganda; missionaries become subversive agents; retreats, monasteries, and convents become prisons; holy ritual becomes bizarre conduct; religious observance becomes aberrant behavior; devotion and meditation become psychopathic trances.’ ” (Shapiro, Of Robots, Persons, and the Protection of Religious Beliefs, supra, 56 So.Cal.L.Rev. at pp. 1316-1317, fn. omitted.) A similar analysis has been advanced by Justice Jackson: “[religious] experiences, like some tones and colors, have existence for one, but none at all for another. They cannot be verified to the minds of those whose field of consciousness does not include religious insight. When one comes to trial which turns on any aspect of *1139religious belief or representation, unbelievers among his judges are likely not to understand and are almost certain not to believe him. . . . Prosecutions of this character easily could degenerate into religious prosecution.” (United States v. Ballard, supra, 322 U.S. at pp. 93, 95 [88 L.Ed. at pp. 1157, 1158] [dis. opn. of Jackson, J.].)3

(3) The Church's Conduct Is Not so “Outrageous” as to Be Subject to Governmental Regulation

Case law teaches that overt acts or conduct connected with the exercise of religion are subject to governmental interference only if the conduct poses substantial threat to the public safety, peace or order. As the Supreme Court stated: “ ‘only the gravest abuses, endangering paramount interest give occasion for permissible limitation.’ ” (Sherbert v. Verner, supra, 374 U.S. at p. 406, italics added.) This was reiterated in Wisconsin v. Yoder, supra, 406 U.S. at page 215 [32 L.Ed.2d at p. 25]: “[0]nly those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion.” (Accord Thomas v. Review Bd. Ind. Empl. Sec. Div. (1981) 450 U.S. 707, 717-718 [67 L.Ed.2d 624, 633-634, 101 S.Ct. 1425], italics added.)

The majority opinion rests on a theory of fraudulently induced brainwashing. However, the conduct of “brainwashing” itself is not actionable because that method is commonly employed by religious groups, and it fails to constitute that outrageous conduct which goes beyond the limits of social toleration. (Meroni v. Holy.Spirit Ass’n, supra, 506 N.Y.S.2d 174; see also Christofferson v. Church of Scientology (1981) 57 Ore.App. 203 [644 P.2d 577, 584, 40 A.L.R.4th 1017].) Thus, the critical issue is whether the act of brainwashing becomes tortious because it was preceded by the wrongful act of “heavenly deception” employed in recruiting.

It bears emphasis, and indeed the majority concedes, that the claimed deceptions, although secular on the surface, are clearly “rooted in religious belief.” (Wisconsin v. Yoder, supra, 406 U.S. at p. 215 [32 L.Ed.2d at p. 25].) It is settled that the Constitution guarantees not only the free exercise of *1140religion, but also protects certain acts undertaken in furtherance of these religious beliefs. Included among these acts are the proselytizing and indoctrination activities of religious organizations. As explained in McDaniel v. Paty (1978) 435 U.S. 618, 626 [55 L.Ed.2d 593, 600, 98 S.Ct. 1322]: “the right to the free exercise of religion unquestionably encompasses the right to preach, proselyte, and perform other similar religious functions.” Turner v. Unification Church (D.R.I. 1978) 473 F.Supp. 367 further teaches that indoctrination and the motivation of one who joins a religious group usually cannot be judicially scrutinized and that only “the ‘operational activities’ of a religion, those activities that are not solely in the ideological or intellectual realm, [that] are subject to judicial review and may be regulated to achieve a sufficiently important state objective. [Citations.]” (Id., at pp. 371-372.) The examples listed by the majority for the permissibility of government interference with religious affairs are consistent with Turner inasmuch as they all involve operational activities of the religious organization (i.e., law against polygamy, distribution of religious literature, compulsory vaccinations, license for religious parades, denial of tax exempt status, etc.), rather than intellectual or doctrinal matters, such as proselytizing and indoctrination.

Thus, a persuasive argument may be made that the principal wrong here claimed (i.e., “heavenly deception” in recruiting) is not subject to government intervention at all, because it includes doctrinal matters rather than operational activities. But even if we assume that such acts are purely “secular” in nature and may properly be regulated by government, they fail to amount to an abuse of such magnitude that would justify government interference under the strict balancing test prescribed by law. This is so because the First Amendment ensures wide protection for religious persuasion which may encompass not only exaggeration, but also outright falsehood. As stated in Cantwell v. Connecticut, supra, 310 U.S. at p. 310 [84 L.Ed. at p. 1221]: “In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields the tenets of one man may seem the rankest error to his neighbor. To persuade others to his own point of view, the pleader, as we know, at times, resorts to exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement. But the people of this nation have ordained in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy.” (Italics added.)

In sum, I am firmly convinced that since “heavenly deception” and its ensuing “brainwashing,” fail to constitute those gravest abuses, this court is powerless to impose tort sanctions thereon.

Finally, I find an additional reason for holding that imposition of tort sanctions is particularly inappropriate in the present instance. Case law *1141emphasizes that only a compelling governmental interest supported by ample evidence can justify state regulation of religious practices. (Wisconsin v. Yoder, supra, 406 U.S. at pp. 215, 224-225 [32 L.Ed.2d at pp. 25, 30-31].) In the case at bench, the State of California has made no claim that such governmental interest exists, nor has it enacted any statute or regulation purporting to restrict the practices at issue. When scrutinizing conduct which is ostensibly subject to constitutional protection and which can be regulated only by showing a compelling state interest, the judiciary should tread cautiously in independently creating such governmental interest without any prior consideration by the Legislature. The Legislature is far better equipped than this court to undertake the factual investigation and to formulate the social policies which justify restrictions on exercising religious freedoms. Indeed, in the overwhelming majority of cases courts have merely upheld state regulations curbing religious conduct rather than creating such regulation. The majority’s creation of this new tort liability in such an historically heretofore sensitive area, without either legislative initiative or guidance, constitutes judicial activism of the first degree.

II. Intentional Infliction of Emotional Distress

The elements of a cause of action for intentional infliction of emotional distress are: (1) outrageous conduct by the defendants; (2) intention to cause or reckless disregard of the probability of causing emotional distress; (3) severe emotional suffering; and (4) actual and proximate causation of the emotional distress. (Newby v. Alto Riviera Apartments (1976) 60 Cal.App.3d 288 [131 Cal.Rptr. 547], disapproved on other grounds in Marina Point, Ltd. v. Wolson (1982) 30 Cal.3d 721, 740, fn. 9 [180 Cal.Rptr. 496, 640 P.2d 115, 30 A.L.R.4th 1161]; Rest.2d Torts, §46.) The conduct is deemed extreme and outrageous when it exceeds “ ‘ “all bounds [of decency] usually tolerated by a decent society, [and is] of a nature which is especially calculated to cause, and does cause, mental distress. . . .” ’ ” (Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 155, fn. 7 [233 Cal.Rptr. 308, 729 P.2d 743].) In order to successfully resist a motion for summary judgment the plaintiff must sustain each element of the cause of action; conversely, the defendant is entitled to summary judgment if proof of any one element is lacking. (Stationers Corp. v. Dun & Bradstreet (1965) 62 Cal.2d 412, 417 [42 Cal.Rptr. 449, 398 P.2d 785].)

Respondents herein contended that the emotional distress cause of action was inherently defective because the Church’s conduct was not outrageous within the meaning of the law. The majority has rejected this argument by finding that the very same wrong (i.e., the fraudulent inducement of appellants into an atmosphere where they could be brainwashed), served as the foundation of both the fraud and the emotional distress causes of action because the conduct complained of was both extreme and outrageous. I *1142respectfully submit that the conclusion of the majority is erroneous and unsupported by legal authorities.

As discussed above, appellants failed to state actionable wrong on the fraud count. A fortiori, the same allegedly fraudulent conduct cannot furnish the legal premise for the emotional distress cause of action.

But even if the fraud cause of action were valid, it would not, ipso facto, constitute outrageous conduct giving rise to recovery for causing severe emotional distress. The bootstrapping reasoning of the majority that the very same fraudulent conduct automatically produces a double cause of action (i.e., for fraud as well as for intentional infliction of emotional distress) has been unequivocally rejected by persuasive case authorities.

For example, in LeCroy v. Dean Witter Reynolds, Inc. (E.D.Ark. 1984) 585 F.Supp. 753, plaintiff brought an action for fraud and intentional infliction of emotional distress growing out of defendant’s intentional misrepresentation and wilful concealment in connection with selling securities. The court rejected plaintiff’s emotional distress claim by stating: “The Court recognizes that deception and fraud associated with the sale of securities can, on occasion, create emotional distress. Moreover, a broker’s repeated use of such unsavory business methods purely in the pursuit of exploitation and financial gain can offend the conscience of the average citizen. Yet . . . mere fraud in connection with the sale of securities does not ipso facto make out a prima facie case for intentional infliction of emotional distress. Unless the defendant’s acts are truly outrageous, an action for intentional infliction of emotional distress will not lie.” (Id., at p. 766, italics added.)

In referring to Restatement Second of Torts section 46, comment d, the court emphasized that “ ‘Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’ ” (LeCroy v. Dean Witter Reynolds, Inc., supra, 585 F.Supp. at pp. 763-764, italics omitted.)

In Barrett v. Farmers & Merchants Bank (Ala. 1984) 451 So.2d 257, plaintiff instituted an action against defendant bank and its vice president to recover damages for wantonness, outrage, fraud and conversion in connection with the payment of life insurance policy proceeds. In ruling against plaintiff, the court held that the tort of outrageous conduct was not established by a showing of mere fraud; rather, it should have been shown that defendant’s conduct was such as not to be tolerated in a civilized society. (Id., at pp. 263-264.)

In Christofferson v. Church of Scientology, etc., supra, 644 P.2d 577, a case factually close, plaintiff complained that defendant church took control *1143of her mind and forced her into life service by way of fraudulent representations. In rejecting plaintiff’s claim premised on intentional infliction of emotional distress, the court emphasized: “Plaintiff was recruited and indoctrinated into the Church of Scientology. That recruitment and indoctrination . . . were not so very different than might be used by any number of organizations. She joined the group voluntarily, albeit, as she claims, on the basis of misrepresentations made to her. However, she continued to participate and maintained her involvement for whatever reason without actionable threat or coercion by defendants.” (Id., at pp. 590-591.) “If misrepresentations were made regarding the benefits or nature of Scientology . . . her remedy would be for fraud, not outrageous conduct.” {Id., at p. 590.)

And finally, in Meroni v. Holy Spirit Assn, for Unification, supra, 506 N.Y.S.2d 174, the court was confronted with the nearly identical issue, i.e., whether brainwashing by defendant Unification Church constituted outrageous conduct rendering it liable for intentional infliction of emotional distress. In finding it did not, the court emphasized that no outrageous conduct has been presented inasmuch as “The plaintiff has failed to demonstrate that the recruitment and indoctrination techniques used by the appellant, which are similar to those used by a number of other organizations ‘go beyond all possible bounds of decency, and [are] to be regarded as atrocious, and utterly intolerable in a civilized community’ . . . .” (Id., at p. 177.)

III. Restitution

Finally, I find myself in profound disagreement with the reversal of summary judgment on the restitution count. The majority’s ruling as to this issue rests on the theory of fraud (fraudulent inducement to facilitate brainwashing) and undue influence.4 However, neither of these theories support the cause of action at issue.

The uncontroverted evidence provided by Molko clearly demonstrates that he made the gift of $6,000 out of a then-held religious belief. Thus, Molko explained that he gave the money to the Church to please God, the Heavenly Father, and that he had not asked that the money be returned while a member of the Church, because he had been afraid of the evil forces and felt guilty of demanding back something he had given to God.51 quite *1144agree with the trial court’s finding: “Careful review of Mr. Molko’s deposition testimony negates the conclusionary allegations contained in the Complaint.” Molko made his gift after careful consideration and consultation with one of the two Church members in whom he had the greatest confidence.6 That he did not part with all his savings further negates the conclusionary allegations of undue influence in his complaint and indisputedly establishes the gift as a product of his free will.7

Since this gift was indisputably prompted by religious beliefs, and the issue of fraudulent inducement cannot be determined without inquiring into the truth or falsity of such beliefs, the theory of fraud as a ground justifying restitution cannot be judicially entertained without transgressing the free exercise clause of the First Amendment. (See detailed discussion, supra.) This same reasoning is equally applicable to the undue influence theory of recovery; as with the theory of fraudulent inducement, it is so intricately interwoven with religiously held beliefs that it cannot be proven without questioning the verity of underlying religious doctrines. (Estate of Supple (1967) 247 Cal.App.2d 410 [55 Cal.Rptr. 542].)

That civil courts may not entangle themselves in religious disputes arising between disgruntled ex-church members and the Church, is well supported by case law as well as by legal scholars. In Watson v. Jones (1872) 80 U.S. 679, 731 [20 L.Ed. 666, 677], the United States Supreme Court emphasized: “ ‘the judicial eye cannot penetrate the veil of the church for the forbidden purpose of vindicating the alleged wrongs of excised members; when they became members they did so upon the condition of continuing or not as they and their churches might determine, and they thereby submit to the *1145ecclesiastical power and cannot now invoke the supervisory power of the civil tribunals.’ ” In Founding Church of Scientology v. United States, supra, 409 F.2d 1146, speaking to the same issue, the court stated: “under Ballard it seems unlikely that a disgruntled former adherent could sue a church for fraud and deceit because it had collected money from him on the basis of allegedly ‘false’ doctrines . . . .” (Id., at p. 1156, fn. 32.)

Estate of Supple, supra, 247 Cal.App.2d 410, 414, reaffirms that religious gifts made to a church cannot be set aside by a court on the grounds of fraud or undue influence because the entertainment of such issues is foreclosed by the constitutional guarantees of religious freedom contained in the First Amendment and applied in Ballard, supra, 322 U.S. 78.8

Finally, Professor Tribe, a highly respected constitutional scholar, fearing entanglement with church affairs, expressed his concern thusly: “Once it is conceded that first amendment values are unacceptably compromised when civil courts undertake to settle religious issues, it becomes clear that allowing a legal determination about property or some other secular matter to turn on a court’s answer to a religious question represents a path fraught with peril: the path is one along which unsatisfied former believers could drag the civil courts into the theological thicket by the simple expedient of suing for a refund of their prior donations to a religious organization. . . . The same is true when a church contributor seeks return of a donation on the ground that the religious beliefs inducing the contribution were false; once we assume that the underlying dispute is properly characterized as religious, the suit for a refund becomes a transparent vehicle for invoking *1146governmental assistance to benefit one side in a religious conflict at the expense of the other, something the establishment clause plainly forbids.” (Tribe, American Constitutional Law (1988) § 14-11, p. 1235.)

Members of this court may detest the practice of heavenly deception. We may abhor the results of the Church’s selective (and successful) proselytization. We may condemn such practices as destructive of the integrity of the family.9 Yet, as judges we must resist the temptation to tread into this theological thicket. For it is neither for governments, nor their instrumentalities, the courts, to divine the truth of those teachings. That is the law to which we are all bound.101 am satisfied that both the Court of Appeal and the trial court before it have correctly found the law and applied it to these appellants. Therefore, I would affirm the trial court’s grant of summary judgment on the fraud, emotional distress and restitution counts.

Presiding Justice, Court of Appeal, First Appellate District, Division Four, assigned by the Chairperson of the Judicial Council.

Scientology teaches that by “clearing” or “auditing” the mind, one can improve both spiritual and bodily health. The E meter plays an essential role in the process of auditing. The vast literature describing Scientology claims, inter alia, that many bodily ailments, including cancer, may be cured by auditing.

In the words of the majority: “The legal question is simply whether a religious organization can be held liable on a traditional cause of action in fraud for deceiving nonmembers into subjecting themselves, without their knowledge or consent, to coercive persuasion ” and “The challenge is to the Church’s practice of misrepresenting or concealing its identity in order to bring unsuspected outsiders into its highly structured environment.” (Italics added.)

The trial court granting summary judgment for defendants eloquently voiced this same concern: “The declarations of Dr. Singer and Dr. Benson reveal that both doctors rest their opinions in large part upon the view that Defendants’ recruitment techniques involve ‘systematic manipulation of social influences’ which, both doctors conclude, lead Plaintiffs to make choices they would not have made in the ‘free exercise of (their) own will and intellect.’ But these are not statements which are either true or false-, they are veiled value judgments concerning the entire outlook of the Unification Church. What is ‘systematic manipulation to some may be the only true outlook to others. ... [11] Testing the uncontroverted facts here by the principles applicable to regulation of acts of religious organizations and their members, as Katz requires, imposition of liability cannot be constitutionally countenanced.” (Italics added, fns. omitted.)

The majority also mentions breach of confidential relationship by the Church as a potential basis for restitution. However, emphasis on the latter aspect does not add a new dimension to the cause of action because under well-settled law breach of fiduciary or confidential relationship is constructive fraud (i.e., a subspecies of fraud). (Civ. Code, § 1573; Darrow v. Robert A. Klein & Co., Inc. (1931) 111 Cal.App. 310, 315-316 [295 P. 566]; Barrett v.Bankof America (1986) 183 Cal.App.3d 1362, 1369 [229 Cal.Rptr. 16].)

The pertinent part of the record reads as follows: Molko was told (and at that time he believed) that “The Heavenly Father is asking to help us . . that “[y]ou are giving a benefit to God and he would look favorably on that”; “that it was tax time and that the church was *1144in desperate need of funds, and that it would be most—that the Heavenly Father would really appreciate, and really look favorably on seeing me give the money to the church . . .”; and “[t]hat you gave God money and then God, used your money rather than you using your money, and it worked better that way. In other words, you give your money to God and then God can distribute your money. And that way, the spiritual world can work for you.”

The reason Molko did not ask for the return of his gift is reflected by the following excerpts: “Q. Did you ever feel that you should ask for the money back in order to—[]f] A. Yes, I thought about that. [][] Q. But you never asked for it back? [j|] A. The situation was such that I—there was too much guilt and too much fear to ask. You just don’t ask something like that. [j|] Q. What in particular were you afraid of happening if you did not—if you did ask for the money back? [j[] A. That something evil could happen to me. [j[] Q. You were afraid that by asking for your money back from the church, that something evil—[j[] A. No, not something —[fl] Q.—would happen to you? [j[] A. You see, some evil force. You have to understand, I really believed that there was evil forces lurking around. And that if I disturbed the spiritual world enough, that something could happen. I believed that. And therefore, I felt a terrible sense of guilt and fear to ask for something that I had supposedly given to God.”

He testified that she told him she “thought I should do what I thought was best” and “was pretty much leaving it up to me.”

When referring to the several thousand dollars which were available to him and which he did not disclose to Church members, he stated, “I drew the line. . . . They were quite under my control, but they stayed where they were.”

I disagree with the position of the majority that the complaint in Estate of Supple was not based upon fraud and undue influence; it clearly was. That opinion states: “It was also alleged that all of the above representations [i.e., that there are Heaven and Hell, eternal award and punishment depending on earthly conduct, etc.] were in fact false and untrue, constituting childish superstitions incompatible with man’s advanced position in science and technology, and that the charitable beneficiaries who made these representations were guilty of unduly influencing the testator and were also guilty of fraud because they had made positive assertions which, although they believed them to be true, were not warranted by the information which they had (Civ. Code, § 1572, subd. 2) and because they had breached a duty which, without an actually fraudulent intent, gained them an advantage by misleading the testator to his prejudice and the prejudice of his heirs at law (Civ. Code, § 1573, subd. 1). . . . []]] In this state of the case, the beneficiaries under the will moved for judgment on the pleadings against Smith as to the fraud and undue influence counts of his pleading, and against Hallinan as to his entire pleading. On the same day, the beneficiaries also moved to strike the Hallinan pleading and the fraud and undue influence counts of the Smith pleading. [10 In due time the matter was heard and in ruling upon the matter, the court filed a memorandum opinion in which it stated that the gist of the fraud and undue influence counts of the two pleadings was that the charitable beneficiaries named in the will had influenced the making of the will by teaching the testator certain religious beliefs which were in fact untrue and which they had no reason to believe were true. . . .” (247 Cal.App.2d at pp. 412, 413, italics added.) Since the cited excerpts of the opinion clearly indicate that Estate of Supple was decided upon fraud and undue influence, it is not only relevant, but extremely persuasive.

The Court of Appeal said it best: “The beguiling and very intensive recruiting methods of the Unification Church, which appear primarily directed at those young people who are most emotionally impressionable and vulnerable, seem objectionable to us, as doubtless they do to most disinterested observers.”

See Justice Mosk’s eloquent concurring opinion affirming this principle when he voted to uphold the constitutionality of the death penalty, People v. Anderson (1968) 69 Cal.2d 613, 635 [73 Cal.Rptr. 21, 447 P.2d 117]: “As a judge I am bound to the law as I find it to be and not as I might fervently wish it to be.”