specially concurring.
I concur with the conclusion in the disposi-tive opinion that a new trial is necessary because the judgment resulted in duplicative or inconsistent damage awards and that the trial court admitted improper expert testimony. I further agree that, on retrial, assuming the presentation of similar evidence as in the first trial, the trial court should submit to the jury an instruction in the form set forth in the dispositive opinion that would require a verdict in favor of defendants if the jury determines, inter alia, that Wolfe’s conduct was based on a sincerely held religious belief. Further, I agree with the dispositive opinion’s treatment of the remaining issues and the cross-appeal. However, I write separately because of the importance I attach to defendants’ claims that liability could not be imposed upon them without violating their rights under the free exercise clause of the First Amendment.
As the dispositive opinion notes, Wolfe consistently maintained that his counseling methods, including the massage technique, were inspired by his religious beliefs which were based on his interpretation of the Bible. Wolfe also consistently asserted that his counseling techniques were not motivated by any sexual desires on his part. Instead, he maintained that he employed the massage technique to facilitate communication between the counselee and God.
The central issue presented by this case, in my view, is that left unanswered by the supreme court in Destefano v. Grabrian, 763 P.2d 275 (Colo.1988). There, in a ease involving alleged sexual misconduct by a Roman Catholic priest, the court recognized that: “If the alleged misconduct of [the defendant] was dictated by his sincerely held religious beliefs or was consistent with the practice of his religion, we would have to resolve a difficult First Amendment issue.” Destefano v. Grabrian, supra, at 284.
In Destefano and, more recently, in Moses v. Diocese of Colorado, 863 P.2d 310 (Colo.1993), the supreme court has held that civil actions against clergy members and their superiors that involve claims of breach of fiduciary duty, negligent hiring and supervision, and vicarious liability are actionable if they are supported by competent evidence in the record. In those cases the court declined to grant churches and clergy broad immunity against being sued in civil courts.
Nonetheless, the defendants in those cases did not claim that their conduct was dictated by sincerely held religious beliefs or was consistent with their religious practices. However, the “difficult First Amendment issue” anticipated by the supreme court is precisely the situation we have here. Defendant Wolfe consistently has maintained that his counseling of the minor plaintiff was dictated by his sincerely held religious beliefs and was consistent with the practice of his religion.
Unlike in Moses, in which the defendants’ First Amendment claims were first raised in the supreme court, Wolfe and the Bear Valley Church of Christ raised their First Amendment contentions early on. They moved for directed verdicts, based on the First Amendment, after plaintiffs’ case-in-chief and at the conclusion of the presentation of evidence. The trial court denied those motions. In addition, the trial court denied defendants’ similar motions for judgment notwithstanding the verdict. Finally, defendants tendered a jury instruction, which the trial court denied, regarding whether Wolfe’s conduct was motivated by a sincerely held religious belief. Consequently, the jury was never informed that the First Amendment was implicated in any way whatsoever.
The First Amendment protects against state action involving the “establishment of religion, or prohibiting the free exercise thereof.” State action includes common law tort rules, New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and court action. Bernson v. Koch, 35 Colo.App. 257, 534 P.2d 334 (1975).
Whether Wolfe’s beliefs are arguably religious in nature is a legal question which must be determined by the court. Courts are to decide whether a person’s beliefs are, in his or her own scheme of things, religious. United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965).
Beliefs are adequately religious even if they are not acceptable, logical, consistent, or *233comprehensible. Only claims “so bizarre, so clearly non-religious in motivation should be denied free exercise protection.” Thomas v. Review Board, Indiana Employment Security Division, 450 U.S. 707, 715, 101 S.Ct. 1425, 1481, 67 L.Ed.2d 624, 632 (1981). All that matters is that the person hold the religious belief. United States v. Ballard, 322 U.S. 78, 64 S.Ct. 882, 88 L.Ed. 1148 (1944).
Hence, a party must show that there is a coercive effect against the practice of his or her religion when challenging governmental action as an infringement of his or her free exercise rights. Destefano v. Grabrian supra, citing Abington School District v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963).
Thus, when making the determination whether a belief is religious, the court must look to the defendant’s assertions rather than the contentions made in the complaint or the evidence presented by the plaintiff. If the court concludes that a defendant’s assertions are not based on a religious belief, the First Amendment does not afford protection. See Africa v. Commonwealth of Pennsylvania, 662 F.2d 1025 (3d Cir.), cert. denied, 456 U.S. 908, 102 S.Ct. 1756, 72 L.Ed.2d 165 (1982) (holding organization was not a religion because it did not address fundamental and ultimate questions, was not comprehensive in nature, and did not exhibit similar manifestations associated with more traditional religions); Church of the Chosen People v. United States, 548 F.Supp. 1247 (D.Minn.1982) (holding “Demigod Socko Pantheon” was not a religion, in part because it was not organized and operated exclusively for religious purposes).
Here, defendants have consistently asserted that Wolfe’s conduct was based on his religious beliefs. Furthermore, Wolfe’s assertions regarding his use of massage as a spiritual counseling technique are not so bizarre or clearly non-religious that they should be denied First Amendment protection. In fact, many Christian sects advocate the laying on of hands by clergy on parishioners for consecration, blessing, invocation, and communication with God. See Dictionary of Christianity in America 636 (R. Linder ed. 1990).
If the court concludes that a defendant’s beliefs are religious, the First Amendment prohibits any governmental action, including tort remedies, that substantially burdens the free exercise of religion, unless there is a compelling state interest and unless the least restrictive means are employed to attain that interest. Thomas v. Review Board, Indiana Employment Security Division, supra; Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963). However, the First Amendment does not provide protection where a defendant’s beliefs are not sincerely held. United States v. Seeger, supra.
In 1990, the Supreme Court held that the compelling state .interest test need not be followed where the impingement on free exercise of religion involves a facially neutral criminal statute of general applicability. Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). However, to the extent Smith departed from the prior “free exercise” jurisprudence concerning facially neutral laws of general applicability, it has been legislatively overruled by the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C § 2000bb (1993). See Western Presbyterian Church v. Board of Zoning Adjustment, 862 F.Supp. 538 (D.D.C.1994).
Furthermore, the Smith decision has been widely criticized as presenting competing answers with pre-Smith law to the question when government, while pursuing secular ends, may compel disobedience to what one believes religion commands. See Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. -, -, 113 S.Ct. 2217, 2240, 124 L.Ed.2d 472, 507 (1993) (Souter, J., concurring). See also McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv.L.Rev. 1409 (1990).
RFRA expressly restores the compelling state interest test in cases involving the free exercise clause of the First Amendment and requires that, even when the law undergoing constitutional scrutiny may be a neutral law of general applicability, government actions that substantially burden the exercise of reli*234gion be the least restrictive means of furthering that interest. As a result, RFRA modifies state tort law pursuant to Congress’ power to enforce the Fourteenth Amendment legislatively. 42 U.S.C. § 2000bb-3 (1993).
Applying this analytical framework here, I agree with the dispositive opinion’s conclusion that by failing to give an instruction concerning whether Wolfe’s conduct was dictated by his sincerely held religious beliefs, the trial court committed reversible error. And, as noted, I agree that the form of an instruction as stated in the dispositive opinion is appropriate in the circumstances presented here because it would adequately protect defendant’s First Amendment rights. Nonetheless, I would go further and require an instruction limited to whether Wolfe’s conduct was motivated by a sincerely held religious belief.
In my view, allowing a tort remedy without, at a minimum, an instruction in the form set forth in the dispositive opinion would substantially burden the free exercise of religion by Wolfe and the Church. See Lupu, Where Rights Begin: The Problem, of Burdens on the Free Exercise of Religion, 102 Harv.L.Rev. 933 (1989) (if government’s ends can reasonably be achieved without the imposition of the free exercise burden, relief from the burden may be appropriate). I further conclude that, without such an instruction, there is no compelling state interest here to allow plaintiffs to pursue a tort remedy.
The First Amendment prohibits the court from interpreting or weighing church doctrine. Moses v. Diocese of Colorado, supra. In my view, the dispositive opinion properly concludes that attempting to impose any professional standard of care upon a pastoral counselor is prohibited by the First Amendment when the pastor asserts that his or her conduct is based on a sincerely held religious belief. Allowing a tort claim here in the absence of a finding that Wolfe’s conduct was not dictated by a sincerely held religious belief would require consideration of the validity of ecclesiastical matters and, therefore, such a claim is barred by the First Amendment. See Presbyterian Church v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440, 89 S.Ct. 601, 21 L.Ed.2d 658 (1969); Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 96 S.Ct. 2372, 49 L.Ed.2d 151 (1966); Van Osdol v. Vogt, 892 P.2d 402 (Colo.App.1994).
Resolution of the First Amendment issue here is indeed difficult since it involves weighing the strong societal interests in allowing tort remedies against those found guilty of sexual harassment or abuse against the freedom of religion claims of a church and minister. Nevertheless, conduct that many people might find objectionable may be protected under the free exercise clause. See Church of Lukumi Babalu Aye, Inc. v. Hialeah, supra (city ordinances prohibiting animal sacrifices violated the free exercise clause since they effectively prohibited only sacrifice as practiced by the Santería religion). Harris v. Harris, 343 So.2d 762 (Miss.1977) (mother, who belonged to a fundamentalist sect which believed in snake handling, had a right to practice her faith and to indoctrinate her child in her religious beliefs so long as she had custody and there was no proof that child was exposed to risk of being bitten by a snake).
In Destefano, the defendants conceded that the priest’s conduct fell outside the practices and beliefs of the Roman Catholic church and, thus, was not protected by the First Amendment. No comparable admissions were made here. Instead, Wolfe has consistently maintained that his actions were legitimate manifestations of pastoral counseling. He argues that his pastoral counseling methods were motivated by the Scriptures and were purely ecclesiastical in nature. Hence, a decision that examines Wolfe’s counseling techniques would require interpretation of church doctrine in violation of the First Amendment.
Indeed, that is precisely what occurred during the jury trial. Plaintiffs presented expert witnesses, as the dispositive opinion has clearly described, who attempted to establish a standard of care for pastoral counseling. Similarly, several elders testified for the Church about their understanding of Biblical counseling. In short, the jury was asked to weigh church doctrine, after hearing not only from lay witnesses but from “ex*235perts” on church doctrine. If the jury finds on retrial that Wolfe’s conduct was dictated by a sincerely held religious belief, then the First Amendment would prohibit plaintiffs breach of fiduciary duty and outrageous conduct claims because those tort remedies would substantially burden the free exercise of his religion without any compelling state interest.
However, even if a compelling state interest existed, the court must use only the least restrictive means in regulating religious activities. Thomas v. Review Board, Indiana Employment Security Division, supra. In my view, to impose liability based on claims of breach of fiduciary duty and outrageous conduct, where a defendant’s conduct is based on a sincerely held religious belief would require the trier of fact to make prohibited inquiries into religious faith and, thus, would violate the least restrictive means test. See Presbyterian Church v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, supra.
Accordingly, I agree that, on retrial, the trial court should give a jury instruction in the form set forth in the dispositive opinion as to whether Wolfe based his actions on a sincerely held religious belief. See United States v. Seeger, supra (whether claimant’s religious belief is sincerely held is question of fact).
Finally, my views based upon the First Amendment would not allow wrongful sexual conduct by a clergyman to go unpunished. In many cases, such as Destefano and Moses, the conduct complained of will not be alleged to be motivated by a sincerely held religious belief. In those situations, a tort remedy would be permissible.
In other cases, as here, where the First Amendment is asserted as a basis for challenged conduct, plaintiffs could assert that such conduct was not based upon a sincerely held religious belief and would be entitled to have a jury resolve that issue. Furthermore, even in circumstances in which conduct is said to be based upon a sincerely held religious belief and such claim is upheld by a jury, the state could still prosecute a clergyman for violation of the state’s criminal laws. See Schmidt v. Bishop, supra.
Thus, while the issues presented here are indeed difficult to resolve, they cannot be resolved properly without consideration of the First Amendment.