Opinions

 

Writing the majority opinion, judge J. Skelly Wright said that accounts of auditing, integrated into the general theory of Scientology are prima facie religious doctrines, and that "literature setting forth religious doctrines, and related to an instrument in the manner in which the 'auditing' literature here is related to the E-meter, cannot be subjected to courtroom evaluation and therefore cannot be considered 'labelling' of such an instrument for purposes of the 'false or mislabelling' provisions of the Act" (under which FDA had moved against the instruments).Even though FDA thus stood judicially adjusted as having acted illegally in seizing equipment and scriptural literature protected by the Constitution, the federal apparachiki were not ready to accept the appeal court's ruling and throw in the sponge. Instead, they filed a petitition for a rehearing.Despite the straightforward, lucid opinion just cited, clearly stating that the Food and Drug Administration was seeking to interfere in religious matters that lay outside its purview, the appeal court granted the government's petitition for a rehearing of the case.

Not only that, but the court now "clarified" its ruling, stating that "we found that some of the literature was at least primajacie religious doctrine". It suggested that on retrying the case, the District Court should make an itern-by-item determination of whether any item of Scientology literature put forth claims on a wholly non-religious basis or whether a religious appeal "has been merely tacked on" to any item.The District Court refused to do any such thing. Noting that the seized literature contained some 2o,ooo pages, the trial court said that a single false scientific non-religious label claim was sufficient to support FDA's charges.Defence attorneys, asserting that the most salient feature of the case at bar was the fact that Scientology is a religion, argued that the government had to prove by clear and convincing evidence that the religious practice of auditing was one of the gravest abuses, endangering paramount interest.But the appeal court, in reversing the findings of the first trial, had already declared:

"Here the E-meter has been condemned, not because it is itself harmful, but because the representations made concerning it are 'false and misleading'. And the largest part of those representations is contained in the literature of Scientology describing the process of auditing which appellants have claimed, without contest from the Government, is part of their religion and central to its exercise."The Government had used the misbranded device charge merely as a handle to institute the legal action, said the Scientology lawyers. "But the entire thrust of their case is directed against spiritual healing and improvement. Without the books and pamphlets referring to auditing, the Government is left with a completely harmless article, a variation of which can be purchased in a toy shop.

"The entire Government argument that the 'unthinking' public needs the protection of the Food and Drug Administration when they go to confession is a ridiculous, unconstitutional and 'unthinking' extension of Government paternalism."

The defence also argued that in the government's singling out the Church of Scientology's religious use of an artifact, from the many religions in U.S. which also use artifacts, was establishment of religion, prohibited by the establishment clause of the First Amendment.Other religions, without interference from the Government, "buy, sell, and transport in interstate commerce articles and literature concerning and making health claims for such articles."These articles, used by other religions, are stated to have healing powers. A partial catalogue of these articles stated to have healing power for which health claims are made would include the Roman Catholic use of the Lourdes Water, Holy Water, Easter Wafer, Scapulars (cloth straps), Saint Glaize Candles for healing and preventing throat disease, Miraculous Medals. Similarly the Fundamentalists faith healers use Prayer Cloths, oil, and red pieces of string, for which healing claims are made."

The Scientologists cited legal precedent to show that the Government must be neutral when it comes to religious organizations. To do otherwise was discriminatory and a denial of equal protection of the law. In a previous case (Tick Wo v. Hopkins 118 U.S. 356), a federal court had stated:

"Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and unequal hand, so as practically to make unjust and illegal discrimination between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution."

The Government presented no new evidence at the second trial.Once again, however, the District Court found in favour of the government and entered an order condemning the meters and all the confiscated writings. And once again, on November 24, 1971, attorneys for the Church filed notice of appeal.Like all legal battles between the Government goliath and the private sector, the contest was greatly uneven. The protracted litigation was costing the defendants a great deal of money, which they would never be able to recover, no matter what the outcome of the preceedings.The federal dictocrats, on the other hand, had available to them the limitless financial resources of the national treasury - that is to say, the people's money. They had spent thousands of dollars prosecuting a minority religion for employing a simple galvanometer in its practice, an instrument which the District Court itself had declared to be harmless, adding that destruction of it would intrude upon religion. The only possible loser on their side of the bar was the taxpayer.