joined by CORNYN and BAKER, Justices, concurring in part and dissenting in part.
This matter is here on petition for writ of mandamus. Because mandamus is inappropriate, I would deny all relief. Consequently, I concur in the partial denial of relief but dissent from the Court’s judgment granting mandamus relief.
I think it is safe to say that the members of this Court believe that the trial court should have granted summary judgment, at least in part, in this case. The Court’s acting on that belief troubles me in several significant respects. First, up until now, this Court has never held that mandamus is available to review the denial of a motion for summary judgment. Second, to review the plea to the jurisdiction, the Court has to directly overrule its own precedent. Most importantly, the Court justifies its holding with the bald implication that the First Amendment right to free exercise of religion is more important than other constitutional rights.
There is good reason for not reviewing the denial of summary judgments on petitions for writ of mandamus. This case is it, and woe to the bench and bar. The solution wrought by the Court today must certainly leave the parties and the trial court slack-jawed. How the trial court is to proceed through the minefield laid in this Court’s opinion and try only certain limited claims of fraud and not others, to admit evidence only pertinent to those limited claims, and even then for limited purposes only, and to ensure that Tilton’s free exercise rights are never implicated in the slightest, is unexplained and inexplicable. I suggest this is the only possible result because the Court has an incomplete record and, consequently, can only fashion a holding by guessing about what the future record will be.
Regarding the plea to the jurisdiction, we have specifically held that the denial of such a plea is not reviewable by mandamus. Bell Helicopter Textron, Inc. v. Walker, 787 S.W.2d 954, 955 (Tex.1990). The Court explains neither why it was wrong a mere six years ago nor why it overrules Bell Helicopter today.
As for why the Court jumps into this case at this stage of the proceedings, it gives no reason other than an implication that free exercise of religion is relatively more important than other rights. Without explanation, the Court notes that mandamus “may not be appropriate in every case in which constitutional rights are impaired,” but it is in this case. 925 S.W.2d at 682. I see no principled basis for elevating free exercise rights above others.
Consider free speech rights. The courts may be called upon to intercede in favor of free speech in cases involving prior restraints. See Davenport v. Garcia, 834 S.W.2d 4, 10-11 (Tex.1992) (mandamus granted in part to vacate trial court’s gag order). But a prior restraint of speech involves direct government infringement of the freedom to speak. In this case, the state is acting through the courts only indirectly, and only as a referee, an arbiter of disputes between private parties, all of whom have interests they seek to vindicate.
In jumping into this ease prematurely, the members of this Court are forced into an unnecessary debate. We all agree that enduring a trial impinges on Tilton’s First Amendment rights. But that’s not the point. While arguing over whether the plaintiffs make viable claims in this ease, neither the Court nor my dissenting colleagues argue that the Free Exercise Clause of the First Amendment grants clergy a license to defraud or inflict torts on others. Nor do they dispute that while the freedom to believe is absolute, the freedom to act, though based on *696religious belief or arising in the context of religion, is not. Cantwell v. Connecticut, 310 U.S. 296, 303-04, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940). Religious conduct is subject to regulation for the protection of society. Id. at 304, 60 S.Ct. at 903. My colleagues are merely arguing over the significance of the pleaded facts and the intent of the plaintiffs. A complete record would likely eliminate much of their discussion.
Furthermore, my colleagues agree that in refereeing personal injury actions in which the free exercise of religion is asserted as a defense, courts necessarily must balance a tension between remedying tortious injuries and protecting the free exercise rights of the defendant. We each acknowledge that this balance, because freedom of religion is so entrenched in our history and constitutional make-up, is precarious. The Court’s opinion and my colleagues’ dissents today simply are a testament to the difficulty of discerning the proper balance between the competing interests.
To be sure, sending certain matters to the jury may ultimately be improper. See United States v. Ballard, 322 U.S. 78, 87-88, 64 S.Ct. 882, 886-87, 88 L.Ed. 1148 (1944) (trial court properly withheld from jury all questions concerning the truth or falsity of the religious beliefs of defendants convicted of mail fraud). However, I reiterate, religious conduct is not per se exempted from regulation. The state has an interest in providing remedies to persons injured by the clergy’s fraud or other tortious conduct. And while the trial court perhaps should have granted summary judgment on one or more of the plaintiffs’ claims, the Court concedes that the trial court may try certain of the plaintiffs’ claims without interference with Tilton’s free exercise rights. Consequently, this case is going back for further proceedings, maybe even a trial. I do not understand why the Court chooses to hamstring the parties and the trial court by hastening to parse out in advance, and without a complete record, what may be tried and what cannot be broached in the slightest. The trial court is in the best position to determine, as the trial progresses, which areas of inquiry are proper and which are not, and what may be submitted to the jury and what may not. That is what trial courts do all the time.
My colleagues on this Court, in granting the extraordinary remedy of mandamus, rush to vindicate religious liberty, a liberty that exists only in balance with other liberties we enjoy. In the process, they ignore the Court’s role as arbiter and run roughshod over other vital rights. I cannot join my colleagues in this effort. Tilton’s free exercise rights may ultimately win, on balance, because of the record that evolves at trial. But mandamus in this case is not the vehicle by which this Court should strike that balance.
I would deny the petition.