joined by GONZALEZ, Justice, concurring in part and dissenting in part.
The Court’s significant change in position on rehearing requires that I withdraw my prior dissent and substitute this opinion in its place. I now join in the Court’s opinion and judgment except only insofar as they deny mandamus relief. Specifically, I join in all of the Court’s opinion except the first paragraph of Part I-C, the first paragraph of Part I-D, and all of Part I-E but the last sentence.
*687Word of Faith World Outreach Center Church, a non-denominational congregation of several hundred people in North Dallas who profess the Christian faith, and Word of Faith’s principal pastor, Robert Tilton, are about to stand trial on claims of fraud, intentional infliction of emotional distress, and conspiracy to engage in this tortious conduct, brought by plaintiffs who gave Word of Faith money based on Tilton’s unfounded assurances that if they did, God would answer their prayers. That, according to plaintiffs’ trial counsel's statements to this Court, and what I also think is the fair import of plaintiffs’ pleadings, is the pending case in a nutshell.
From the extensive evidence developed through discovery contained in the record before us, it seems to me that plaintiffs ought to be able to prove without much difficulty that Tilton made misrepresentations to them. There is hardly any dispute, for example, that Tilton promised if prayer requests were sent to him accompanied by monetary contributions, as plaintiffs’ were, he would touch them, read them, and pray over them, and God would answer them. Tilton never touched plaintiffs’ prayer requests (except, he says, in a spiritual sense), or read them (he sometimes read summaries of requests, which could have included plaintiffs’), or prayed over them (he prayed over mounds of requests en masse, but seldom over any individual request by itself). And if God ever answered them, it was not the answer plaintiffs wanted. In short, plaintiffs rather plainly did not receive what Tilton appeared to promise.
But in this country religion and its adherents cannot be held to all their promises in a court of law. Statements of belief, or hope, or even promise, when they have an essentially religious as opposed to purely secular character, are protected by the Free Exercise Clause of the First Amendment to the United States Constitution. Justice Douglas’ simple observation half a century ago has become an aphorism of Free Exercise Clause law: “Men may believe what they cannot prove.” United States v. Ballard, 322 U.S. 78, 86, 64 S.Ct. 882, 886, 88 L.Ed. 1148 (1944). It goes without saying that they may urge others to believe as well, without threat of civil liability. One who finds that the promise of faith rings hollow may not recover damages from the promisor. It is among the most fundamental tenets of our law that people “may not be put to the proof of their religious doctrines or beliefs.” Id.
Not every statement made in the name of religion is entitled to this protection. A cleric has no more right than an agnostic to market the Brooklyn Bridge simply because he believes in faith he owns it. Unfortunately, few examples are so obvious. Along the full spectrum of experience, distinctions between what is protected and what is not are often blurred, as in the case now before us. All of the Members of the Court agree that some of plaintiffs’ claims cannot be tried without abridging the Free Exercise Clause. We disagree on two very difficult matters: whether all of plaintiffs’ claims are barred, as opposed to only some of them; and whether the district court, which has repeatedly refused to dismiss the claims that are barred, should now be directed to do so. If, as I think, the essential element all plaintiffs’ claims share is that Tilton misrepresented what God would do, then those claims are barred, and the district court should be directed to dismiss them. This is the fundamental issue the Court must decide.
Tilton also complains that the district court has ordered him to produce his personal tithing records, which plaintiffs contend will show that Tilton is not only a fraud but a hypocrite — that he does not practice what he preaches. If one could be sued for being a hypocrite, there would be considerably more litigation. This contention, too, is not in my view one which can be tried to a jury consistently with the First Amendment.
I agree with the Court that the district court should be directed to dismiss plaintiffs’ claims of intentional infliction of emotional distress and conspiracy to commit this tort, and to vacate its order requiring production of Tilton’s personal tithing records. To the extent the Court grants mandamus relief, I therefore concur in its opinion and judgment. I also agree that some of plaintiffs’ fraud claims cannot be tried, but unlike the Court, I do not think that any fraud claims can be *688tried. Hence, I respectfully dissent from the Court’s denial of mandamus relief.
I
The pending litigation was originally filed by four plaintiffs: Patsy High and her common law husband Curtis High; Andrea Johnson; and Mary Elizabeth Turk. Turk is now deceased, and two representatives of her estate, Dr. Toni R. Turk and Vicki Crenshaw, have been substituted as plaintiffs. Three of the seven originally named defendants are relators in this mandamus proceeding: Word of Faith World Outreach Center, Inc., once a Texas nonprofit corporation with Tilton as president, but now dissolved; Word of Faith World Outreach Center Church, an unincorporated religious organization and successor to the nonprofit corporation; and Robert Til-ton, Word of Faith’s principal pastor. Four defendants have not joined in this proceeding: Marte Tilton, Robert’s former wife; J.C. Joyce, an Oklahoma attorney who holds a management and administrative position with Word of Faith; Response Media, Inc., an Oklahoma corporation allegedly employed by Word of Faith to provide mass marketing strategies and services; and Internal Data Management, Inc., an Oklahoma corporation which allegedly handles the mail sent to Til-ton and Word of Faith.
Plaintiffs have asserted three tort claims: fraud, intentional infliction of emotional distress, and conspiracy to commit these two torts. They all claim they are entitled to recover the money they contributed to defendants, damages for mental anguish, and punitive damages. Before examining how each of these claims is affected by relators’ First Amendment defense, I recap plaintiffs’ allegations in some detail.
A
Plaintiffs’ amended pleadings contain the following allegations.
Defendants are responsible for two television programs hosted by Tilton, Sunday Morning Live, a broadcast of church services, and Success ’N Life, an “info-ad” program shown throughout the week and more than once daily in some areas. Both programs are devoted largely to Tilton’s urging viewers to send money based on representations that those who do will receive benefits from God including financial prosperity and good health. Viewers are encouraged to call a “prayer line” telephone number to make a “seed of faith” monetary vow. Operators answering this line take information from callers which is entered into computers and used for Word of Faith mailings. Defendants’ broadcasts and mailings include testimonials of individuals identified only by their first names, who claim to have obtained great wealth, new cars, houses, good jobs, and medical healing, all as a result of having “seeded their faith” by contributing money to Tilton and Word of Faith.
Mailings are form letters and brochures composed and produced to appear to be personal messages from Tilton to the individual recipients. Often enclosed with these mailings are forms which recipients can return to defendants with prayer requests noted and monetary contributions included; weekly invoices showing the amount of vows made, amounts paid, and amounts still owed on vows; and forms and envelopes for making and sending contributions. Other items, such as books, tape recordings, literature, calendars, and prayer cloths, are also mailed. The primary message of all mailings, like the broadcasts and “prayer line”, is the need to send money.
To acquire credibility and induce people to contribute money, Tilton claims to be a prophet of God. (Actually, plaintiffs allege, in an apparent attempt at humor: “Robert Til-ton represents that he is a profit of God.”) Tilton constantly represents that if a prayer request is returned with a contribution, then in the words of plaintiffs’ pleadings, “Robert Tilton will personally and actually read, touch and pray over each of these requests and ... thereby, the one making the vow and request will receive whatever is requested.” In broadcasts Tilton is shown praying over actual prayer requests.
Patsy High began watching Tilton’s broadcasts soon after her family had taken physical custody of her four children from her. Distraught, she came to believe that Tilton had the power to help her regain custody of *689the children, and that he would do so if she contributed money to him. The day after she called the “prayer line” and made a $100 vow, she was watching a Success ’N Life broadcast when she heard Tilton say that a person watching the broadcast was experiencing family problems and should call the “prayer line” to make a vow to have her family restored. Tilton said that $100 was not sufficient and implied that at least $1,000 was required. Tilton said that people who were robbing God by holding back on their seeds and not sending enough money would not receive what they requested. Convinced that Tilton was talking directly to her, Patsy made an additional vow of $900. The Highs lacked the financial means to pay this amount, but Patsy believed Tilton’s assertion that the money would somehow become available.
Curtis High was initially unsure about Til-ton’s ability to have Patsy’s children returned to her. When Patsy reported this to “prayer line” operators, they told her that Curtis’ lack of faith in Tilton was preventing the return of her children, and that the devil was using Curtis. At the urging of “prayer line” operators, Patsy insisted that Curtis attend Word of Faith services with her, and he did. Both joined Word of Faith and over time contributed over $15,000. Plaintiffs allege that defendants continually told them to “stay strong, have faith, and continue paying vows and your children will be returned to you.” Once when Patsy was suffering from headaches, Tilton personally prayed with her over the telephone and told her she was cured. Her headaches, however, did not go away.
Tilton sent the Highs a prayer cloth, instructing them to cut it into small pieces and sew it into clothing sent to the children so that they would be returned. Tilton also asked for photos of the children to pray over. The Highs complied with all of these instructions, but their children were not returned. After the Highs had sent defendants all the money they had, they asked Word of Faith for food and help and were turned away.
Andrea Johnson is physically disabled. After watching defendants’ broadcasts daily for a week, she became convinced that she could gain physical and moral strength and financial security by contributing money to Tilton. She called the prayer line and made a vow, began receiving mailings, and eventually joined Word of Faith. When she expressed doubts about her ability to continue making contributions, defendants told her to stand in faith. Johnson used state welfare money to make contributions and even sent defendants food stamps, which they accepted. Johnson never obtained the financial security or physical healing she was promised and eventually became depressed and suicidal.
Mary Elizabeth Turk’s representatives claim that Turk began watching Tilton’s broadcasts while she was caring for her ailing husband. She became convinced that Tilton had the power to heal her of any illness and free her from physical pain if she contributed money to him. After her husband died, she began suffering excruciating pain but refused to seek medical treatment. In reliance on Tilton’s promises, she made a vow of $1,000, believing she would be healed. Turk received a prayer cloth from Tilton which he said he had “anointed”, and she was instructed to place the cloth over the affected area of her body to be healed. She did so, but did not get any relief. Turk put off seeking medical help until she developed severe gangrene and fatal rectal cancer. Before her death she gave Tilton about $1,453.
Tilton did not do what he promised. He had no intention of handling plaintiffs’ prayer requests as he said he would, and he knew that he could not control whether plaintiffs would ever receive what they wanted. He made misrepresentations to plaintiffs solely to induce them to contribute to him and Word of Faith. This is what plaintiffs plead.
B
Plaintiffs allege that defendants acted in bad faith. They stress in their amended petition: “Plaintiffs do not base the allegations herein on the religious faith and/or beliefs of the Defendants, but base the allegations on the specific acts and misrepresentations of the Defendants which are secular acts and practices.” To summarize plaintiffs’ lengthy pleadings, they complain that Tilton misrepresented to them—
*690• that he would read, touch and pray over individual prayer requests when he did not do so and had no intention of doing so;
• that God had spoken to him about specific people when Tilton admitted that God only spoke to him in a general sense;
• that he had personally touched, prayed over or anointed various articles, such as prayer cloths, to imbue them with special power, when he had not done so and the articles possessed no special power;
• that he could perform miracles when he could not do so; and
• that if they would contribute money to him, God would answer their prayers and give them financial prosperity, good health, and other rewards.
In briefs in this Court, plaintiffs have described their claims more succinctly: “Patsy High ... believed that if she sent in her money and her prayer requests to Tilton that Tilton would actually and physically touch, read, and pray over her prayer requests and that because Tilton would do these things, she would regain physical custody of her children.” “Ms. Johnson paid on her vows, believing that if, and only if, she made and paid monetary vows to Robert Tilton and only because Robert Tilton would physically touch, read, and pray over her prayer requests that were to be included with their payments made on the vows, she would become financially independent.” “Mary Turk believed in Tilton, she made her vows to Tilton and sent in her money along with her prayer requests, believing that Tilton would do the things that he promised and that she would thereby be healed.” In each instance it is important to note that plaintiffs did not understand Tilton to say that he could himself fulfill their desires, only that he could move God to do so. Plaintiffs all wanted something — their children, financial security, health — that they looked to God to give, but they believed Tilton’s representations to them that if they contributed money for his personal intervention, God was more likely to act.
As a practical matter, of course, if not a legal one, had plaintiffs’ prayers been answered to their satisfaction they would have had nothing to sue over, as plaintiffs’ counsel conceded at oral argument. Asked, “if the prayers of your clients had been answered in the manner in which they wished those prayers to have been answered, you would not be here today?” plaintiffs’ counsel answered, “I would have to say it is probably true.” Still, plaintiffs contend: “The issue herein is not whether or not God answered the Plaintiffs’ prayers, it is whether or not Robert Tilton used the false promise that if the Plaintiffs would send enough money to Tilton, he would do certain things in relation to Plaintiffs’ prayer request, and that because Tilton would do these things, the Plaintiffs would receive whatever they asked for in their prayer requests.” This characterization of the legal issue before us, which I think is accurate, becomes crucial in analyzing the effect of the Free Exercise Clause. The issue is not whether Tilton made meaningless promises — to touch, to read, to pray, to anoint — that he did not keep, or even that he did not intend to keep; the issue is whether, had Tilton kept those promises, God would have given plaintiffs what they wanted, and because Tilton deceived plaintiffs, their prayers went unheeded. The issue is not whether God answered plaintiffs’ prayers; the issue is whether God would have given plaintiffs what they asked for if Tilton had done what he said he would do.
II
That issue cannot, in my view, be litigated as a fraud claim. Both the liability and the damages components of such a claim impinge on defendants’ Free Exercise Clause rights.
A
I agree with the Court that the First Amendment does not permit trial of a claim which turns on the veracity of a religious belief. I do not agree, however, that plaintiffs’ fraud claims fall into two categories. The claims which the Court describes as involving “Tilton’s allegedly insincere representations of religious doctrine or belief’, ante at 678, are clearly barred by the Free Exercise Clause. But the “representations that he would perform certain concrete acts”, *691ante at 679 —e.g., touching and reading prayer requests — are likewise barred. The distinction for the Court is that while Tilton cannot be required to prove in court that the Holy Spirit actually prompted him as he said, he can be required to prove whether he touched or read a prayer request when he said he would. I agree that this distinction can be made, but I do not agree that it is pertinent in applying the Free Exercise Clause.
Plaintiffs did not seek Tilton’s personal attention to their prayer requests as one might seek a celebrity’s autograph. They believed that only God could give them what they wanted. They saw Tilton, not as god, but as a means of enhancing their access to God. Their contributing money to him, his handling of their prayer requests, their use of articles he said he had anointed with special power — all of this was to make it more likely that God would grant their petitions. I agree with thé Court that whether their contributions or use of special articles really mattered to God is not something that can be tried in court. By contrast, whether Tilton actually read a prayer request when he said he would is an issue which can easily be tried, but it is not dispositive of the case. To prevail on their fraud claim, plaintiffs must still prove that if Tilton had actually read their requests, God would have granted them, and because he didn’t, God didn’t. Otherwise, Tilton’s misrepresentations about what he would do are meaningless and could not have caused plaintiffs injury.
Suppose Tilton had told plaintiffs he would read their requests in the morning because God is especially attentive to morning prayers, and in fact he did not do it until evening. This failure to do what he promised would clearly not render him liable for damages unless it caused injury, unless reading prayer requests in the morning really was important in getting God to answer them. What Tilton did or did not do can be proved; the significance of his actions cannot be. Since it cannot be proved whether God was less likely to grant plaintiffs’ prayer requests because Tilton did not touch or read or pray over them personally as he said he would, or because he did not personally touch prayer cloths as he promised, Tilton’s failure to do these things cannot be determined to have caused plaintiffs’ damages.
Had plaintiffs contributed to Tilton solely to obtain his personal services or attention, I would agree that his failure to perform as promised would be actionable. Had Tilton promised personal counseling or literature or some other service or thing in exchange for contributions, then he could be liable for failing to perform. Had Tilton falsely promised he would dedicate contributions to certain purposes, contributors who relied on that promise might be entitled to their money back. But none of these situations are involved here. Tilton promised that God would give his contributors what they wanted, and he would assist in assuring it. The record seems rather clear that Tilton’s promise failed on both counts, and if that were proven, as it probably could be, plaintiffs would make out a case of fraud. They cannot recover, however, because Tilton’s promise remains the kind of religious statement that is protected by the Free Exercise Clause.
Part of the nature of most religions in general is to hold out to those who respond the hope that they will receive in return— whether it be redemption, forgiveness, blessing, peace, truth, happiness, health, or prosperity. For those for whom that hope fails the law does not afford recompense; otherwise, religious believers would be discouraged from freely stating their beliefs. The Free Exercise Clause protects even the more outrageous claims of religion. In the words of Ballard:
The religious views espoused ... 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.
322 U.S. at 87, 64 S.Ct. at 886. Tilton’s interest in money may be unusually unabashed, his tactics in raising it may be unusually offensive, and his promises as to what God will do may be extraordinarily far*692fetched. He may be exactly what plaintiffs say he is: a sham and a fraud. But his statements are nevertheless essentially religious beliefs for which he is protected from liability.
Tilton is not protected because he is a pastor or because he has simply invoked the name of religion. A promise of a purely secular nature — that contributions would be used to buy contributors new cars — is not shielded from legal enforcement, regardless of who makes it. While the line between what is religious and what is secular is not always a bright one, I think Tilton’s statements are rather clearly on the religious side.
Some were, at least, even if not all of them. The Court agrees yet affords no relief. Its uneasiness in allowing all plaintiffs’ fraud claims to proceed is conspicuous:
We cannot conclude that Tilton’s constitutional rights will be violated by this suit, however, because we cannot determine on this .abbreviated record exactly which of Tilton’s representations plaintiffs will rely upon to prove their claims of fraud.... The dynamic nature of the trial process makes it imprudent for us to structure the trial based on such an abbreviated record. While plaintiffs’ counsel at oral argument before us made several statements that indicated a present intent to proceed on inappropriate theories, we are loath to substitute these comments for a factually developed record. Hence, we do not hold that the trial court has erred to such an extent that correction by extraordinary writ is justified.
Nevertheless, we caution that a failure by the trial court to carefully consider each of the alleged misrepresentations on which plaintiffs base their fraud claims may irreparably violate Tilton’s constitutional rights. The trial court must identify those statements upon which plaintiffs’ fraud claims are based, determine which ones, if any, involve religious doctrines or beliefs, and ensure that the trier of fact does not hear evidence regarding them or pass on their veracity.
Ante at 680. In other words, while plaintiffs’ pleadings assert claims barred by the Free Exercise Clause, and plaintiffs’ counsel has assured us that he intends to prosecute those claims, this Court is unable to provide defendants the protection promised by the Constitution. The responsibility for affording such protection, according to the Court, lies entirely with the district court, and by this pronouncement the Court attempts to wash its hands of the case. But the reason the parties are here is because the district court has already passed on the issues; the district court has repeatedly — at least four times— refused to dismiss plaintiffs’ claims, and the case is on the brink of trial.
Given the Court’s view that it will “irreparably violate Tilton’s constitutional rights” for the district court to allow “the trier of fact” to “hear evidence” on barred claims or “pass on their veracity”, the only remedy remaining for relators is to seek mandamus a third time. The parties should note well that the Court neither prohibits nor discourages another application for mandamus if plaintiffs’ claims proceed to trial. The Court apparently envisions that if the district court orders Tilton to testify whether he believes the statements he made to plaintiffs, the trial will stop while the parties reapply for mandamus to prevent an irreparable violation of their rights, although I suspect that the Court prays that somehow it will never come to that. The better course, it seems to me, is to give relators the relief to which they have already shown themselves entitled.
B
The flaw in the Court’s fraud analysis is also apparent in its discussion of damages plaintiffs may recover. Citing three lower court decisions, two of which were never reviewed by this Court, the Court announces that “the measure of damages in a fraud ease is the actual amount of plaintiff’s loss that directly and proximately results from the defendant’s fraudulent conduct.” Ante at 680. While it is true in a very general sense that a defrauded plaintiff is entitled to be made whole, this superficiality is hardly an accurate restatement of the measure of fraud damages.
*693Damages recoverable for fraud are compensatory, consequential and punitive. Compensatory damages are measured two ways: either as the difference between the value given by the plaintiff and the value received, called “out-of-pocket” damages, or as the difference between the value promised and the value received, called “benefit-of-the-bargain” damages. Leyendecker & Assocs. v. Wechter, 683 S.W.2d 369, 373 (Tex.1984). Consequential damages are other losses occasioned by the fraud. See, e.g., Trenholm v. Ratcliff, 646 S.W.2d 927, 933 (Tex.1983)(lost profits). Punitive damages, as in other cases, are awarded for willful, egregious conduct. Dennis v. Dial Finance & Thrift Co., 401 S.W.2d 803, 805 (Tex.1966).
In this case, compensatory damages cannot be recovered because there is no way to determine the value of what plaintiffs received. The undisputed evidence is that Til-ton prayed for plaintiffs generally. Assuming that what Tilton did was worth less than what he promised — reading plaintiffs’ prayer requests, touching them, and praying for plaintiffs specifically — it is impossible to say how much less. The Court properly prohibits recovery for unanswered prayers, but it does not address how compensatory damages can ever be determined in this case. The jury in this case will be asked to find the difference between the value of what was either given or promised and the value of what was received. The jury could find that the value given was equal to the contributions made, but it cannot put a value on what was received.
The Court specifically approves recovery of pecuniary consequential damages, although the pleadings do not allege any such damages. The only consequential damages plaintiffs allege are for mental anguish. The Court properly would not permit plaintiffs to recover damages for mental anguish. To allow mental anguish damages or punitive damages against defendants in this ease would be to chill defendants free exercise of religion. A person can hardly exercise his religion freely, knowing that he may someday be required to pay mental anguish or punitive damages.
Fraud may also vitiate a transaction, supporting rescission. I find it difficult to characterize the relationship between plaintiffs and Tilton as a transaction — payments of money in exchange for prayers and other things. But assuming that it was, plaintiffs are not as a rule entitled to rescission unless they can prove that the value of what they received was less than they were promised. Moore v. Cross, 87 Tex. 557, 29 S.W. 1051, 1053 (1895). Again, it is impossible to assess the value of Tilton’s prayers. Indeed, one might even argue that God, to whom plaintiffs prayed, would bless them for the contributions they made to Tilton irrespective of what Tilton did in return. The Court’s blithe statement that plaintiffs may be entitled to their money back simply overlooks the difficulties in awarding damages in these circumstances.
Ill
I agree with the Court that plaintiffs’ claims for intentional infliction of emotional distress cannot be tried. Because plaintiffs’ claims for fraud and intentional infliction of emotional distress should be dismissed, it follows that their conspiracy claims must also be dismissed.
Having concluded that plaintiffs’ claims are barred by the First Amendment, I need not consider whether Tilton and Word of Faith are afforded greater protection by article I, section 6 of the Texas Constitution, which provides in pertinent part:
All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences .... No human authority ought, in any case whatever, to control or interfere with the rights of conscience in matters of religion....
The Court, however, is obliged to consider this alternative basis for relief. It refuses to do so on the ground that it is “reluctant to decide an issue as important as the scope of the Texas Constitution’s free exercise guarantee under these circumstances.” Ante at 677 n. 6. The sole “circumstance” referred to is Tilton’s failure to brief the factors involved in construing a constitutional provision. Id.
*694The Court disregards its recent insistence that state constitutional provisions be construed and applied before considering related provisions of the federal constitution. Davenport v. Garcia, 834 S.W.2d 4, 11-21 (Tex.1992). Inadequate briefing is no impediment to consideration of Tilton’s contentions on state constitutional grounds. The Court stated in Davenport:
Our consideration of state constitutional issues is encumbered when they are not fully developed by counsel. Many of our sister states, when confronted with similar difficulties, have nevertheless decided cases solely on state grounds or ordered additional briefing of the state issue. We will follow this procedure as necessary and appropriate, when asserted state grounds have not been adequately briefed.
Id. at 20-21. I seriously doubted whether the Court meant what it said in Davenport. Today’s decision is proof that it did not.
IV
Given that defendants’ First Amendment rights will be impaired by a trial of at least some of plaintiffs’ claims, the position in Justice Enoch’s dissenting opinion that mandamus should not issue to protect against this infringement can hardly be taken seriously. If Tilton were about to lose his interest in maintaining the confidentiality of a privileged document, we would grant mandamus because “the appellate court would not be able to cure the trial court’s discovery error.” Walker v. Packer, 827 S.W.2d 833, 843 (Tex.1992). “ ‘After the [privileged documents] had been inspected, examined and reproduced ... a holding that the court had erroneously issued the order would be of small comfort to relators in protecting their papers.’ ” Id. (citing Crane v. Tunks, 160 Tex. 182, 328 S.W.2d 434, 439 (1959)). Defendants’ interest in not standing trial for their religious beliefs, a right guaranteed by the Constitution, should be afforded at least as much protection as a claim of evidentiary privilege.
- Mandamus will issue to require arbitration rather than allow the parties to go to trial, even though the error could be corrected on appeal. Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272 (Tex.1992). Mandamus will issue to set aside gag orders which infringe on freedom of speech. Davenport v. Garcia, 834 S.W.2d 4 (Tex.1992); Grigsby v. Coker, 904 S.W.2d 619 (Tex.1995) (per curiam). It will issue to transfer venue in eases involving children. Proffer v. Yates, 734 S.W.2d 671, 673 (Tex.1987). Surely the rights at stake in this case are every bit as important as the interests in these other settings.
Justioe Enooh’s dissenting opinion warns of “woe to the bench and bar”, post at 695, because the Court now intends to review all denials of summary judgment by mandamus. This is simply not true. All denials of summary judgment do not threaten the irreparable loss of constitutional rights. If defendants are subjected to trial on claims which infringe on their protected free exercise of religion, it is of little consequence whether they win or lose, in the district court or on appeal. The Free Exercise Clause protects against being “put to the proof’ of religious doctrines and beliefs. Ballard, 322 U.S. at 86, 64 S.Ct. at 886. That right, lost at trial, cannot be restored by a favorable jury verdict or vindication on appeal. Mandamus relief should not be denied because it means “jumping into this case prematurely”. Post at 695. The record is no more limited in this case than it is in other original mandamus proceedings. In fact, it so happens that the issues here are rather fully developed and the case is ready for trial. The only significant means of completing the record is at trial, yet it is trial which threatens to deprive defendants of their rights.
⅝ ‡ # ⅜ ⅜ ⅜
Tilton and Word of Faith are not sympathetic figures in my view. A convincing case can easily be made from the evidence produced in discovery that Tilton and Word of Faith took advantage of plaintiffs’ misfortunes to deceive them with false hopes and deprive them of their meager resources. If protection under the Free Exercise Clause extended only to the deserving, it would probably not reach Tilton and Word of Faith. It does, however, because as important as the State’s interest is in protecting its citizens from fraud, its interest in preserving religious freedom is far more important.
*695Each week the religious communities of this country promise a nobler, better world, and more besides, if only people will respond. Usually they also ask for financial support— perhaps not as greedily as Tilton, but they ask all the same. I agree with the Court that the First Amendment does not require them to prove the promises they make of a religious nature. But as I believe that is what defendants are being compelled to do in this case, I would direct the district court to dismiss plaintiffs’ claims.
Accordingly, I respectfully dissent.