A very interesting decision today from the Iowa Supreme Court, in Bandstra v. Covenant Reformed Church. A short and oversimplified summary:

[1.] Two married women, the Bandstras, were parishioners of the Covenant Reformed Church who (separately) went to their minister, Pastor Edouard, for counseling. They say that he pressured them into having sexual relations with him. In each relationship, at least some (and perhaps all) of the sex was not physically coerced, but Iowa law takes the view that such sex between a counselor (religious or not) and a client or parishioner is improperly exploitive. Pastor Edouard was indeed ultimately convicted of sexual exploitation by a counselor or therapist, and sentenced to five years in prison.

[2.] The women and their husbands sued on various theories, but in this post I'll focus on two claims. First, they claimed that various statements by the church, such as labeling their conduct "adultery," and arguing that they were partly responsible for their conduct, were defamatory. Second, they claimed that the statements blaming the women negligently caused the women emotional distress, because they ran contrary to "accepted mental health treatment concepts"; in the words of their brief,

[W]here a reasonable church would seek assistance for parishioners and would not label victims "adulteresses," but the Elders of the Covenant Reformed Church do, they can be held liable for failing to meet the ordinary standard of care. The Elders of the Covenant Reformed Church have every right to believe as they see fit, but counterculture practices such as those posited above will often be accompanied by negative legal consequences.

[3.] No, said the court; here's a sample of its reasoning as to the libel claims, which are mostly rejected on the grounds that, in context, they are opinion:

[In a phone call], Elder Van Donselaar stated, "Edouard is more repentant than any of the women will ever be." At first glance, it appears the statement is nonactionable because it is not false. [The women] have always maintained they have nothing to "repent" as they were victims in Edouard's sexual exploitation scheme. Yet, given the context of the statements, the true message here is not that the women are factually unrepentant, but rather that they should be repentant because they too sinned. However, the latter notion is similarly nonactionable for the same reasons as the first communication. Whether, in the eyes of an elder, the women are victims or sinners in need of forgiveness is not objectively provable.

[On another occasion,] Elder Van Donselaar further stated, "If Edouard goes to jail, there are four women who should go to jail as well." This statement is a nonactionable opinion. Whether the women are morally deserving of criminal punishment is not objectively capable of proof or disproof and is therefore protected by the First Amendment.

[On one occasion, the husband of one of the women] was experiencing significant distress from the circumstances and threatened to hurt himself. He reached out to [the other woman's husband, who was his brother], who called several individuals to come and stay with [the first husband]. That evening, Elder Hettinga told the plaintiffs, in front of the other third parties present, that "you are not victims." Plaintiffs allege this statement is defamatory…. [But] the statement was made in the context of the dispute between the parties as to whether the women should be referred to as "victims" by the elders when communicating with the congregation. While many may find Hettinga's statement offensive, whether the women are victims or sinners in need of forgiveness is not objectively capable of proof or disproof….

The libel claims as to some of the other statements were dismissed largely on the grounds that the defendants sincerely believed they were true, so the court didn't have to decide whether or not they were opinion.

[4.] The court likewise rejected the claims that some statements negligently distressed the women:

Following Edouard's resignation, the elders sought to help the congregation move forward and heal. The means by which they chose to counsel and advise the congregation is outside the purview of the government. Plaintiffs argue "a reasonable church would seek assistance for parishioners and not label victims 'adulteresses.'" Yet, that is precisely the type of determination that the Religion Clauses prohibit. The elders determined that certain speakers and mental health resources were outside of their faith. A court cannot dictate what teachings and services a church offers its parishioners. Nor can we disapprove of the elders deciding, pursuant to their duty as religious authorities, that the women would be best healed by simply confessing their "sins." Because plaintiffs' first two negligence claims go to the very heart of religious decision-making, they are barred by the First Amendment.

[5.] My students Jennifer Milazzo, Joshua Ostrer, and Furqaan Siddiqui and I filed an amicus brief in this case—with the invaluable pro bono help of local counsel Jason Walke (many thanks for that!)—on behalf of the International Society for Krishna Consciousness, Inc.; here is the heart of our argument, which I think largely coincides with the court's:

Summary of Argument

When Covenant Reformed Church described the lead plaintiffs' conduct as adulterous, it was expressing a moral evaluation of uncontested facts—an opinion based on those facts. It is a fact that each of the plaintiffs had a sexual relationship with the pastor. Whether this sexual relationship should be labelled adultery, though, is an opinion, which turns on Covenant's moral and religious beliefs that the plaintiffs were morally culpable (though of course the pastor was even more morally culpable).

This expression of opinion is protected under the First Amendment:

[1.] It is protected free speech, even without regard to Covenant's being a religious institution. Covenant believes the women's conduct is adulterous even though the women were subject to psychological pressure. The women believe that the psychological pressure sufficiently nullified their consent that their actions thus were not adulterous. Both sides have a Free Speech Clause right to express their opinions.

[2.] Covenant's speech is also protected under the Religion Clauses because it is a religious evaluation of how conduct should be labeled. Secular courts may not decide whether religious opinions are true or not. Some churches, for instance, may define "marriage" to include same-sex marriages; some may define them to exclude such marriages, or even exclude remarriages after a divorce. If those churches want to label some secular marriages as not true marriages, they are free to do so. Likewise, if they want to describe conduct as adultery, under their religious definitions, they are free to express that opinion (at least so long as the audience knows the underlying historical facts, as the audience here did).

[3.] The First Amendment also precludes negligence liability imposed on the theory that the expression of opinion negligently distresses the listeners. The First Amendment protects the expression of opinion against tort lawsuits, regardless of the tort around which the plaintiffs frame their arguments.

[4.] The First Amendment protects "counterculture" religions and ideologies as well as ones within the mainstream culture. Plaintiffs might view the church's statements as "counterculture practices" that "fail[] to meet the ordinary standard of care." Appellants' Proof Brief 24. But even if jurors agree with plaintiffs on this, a church's expression of moral and religious views cannot lead to financial liability, regardless of whether the views adhere to the majority culture or the "counterculture."

This Court should therefore affirm the trial court's grant of summary judgment for Covenant.

Argument

[I.] Covenant's speech is protected opinion under the Free Speech Clause.

The word "adultery" generally means voluntary sex between two people, at least one of whom is married (but not to the other participant). There is a factual core to the term: Calling someone an adulterer even though she never had sex with anyone who was not her husband would indeed be a false factual assertion. When it comes to this factual core, though, Covenant's speech was accurate. The women had indeed had a sexual relationship with the pastor.

But "adultery" also, in many instances, represents a personal opinion about what counts as sufficiently voluntary behavior to merit moral condemnation. If a married man has sex with his boss, fearing that she might fire him if he refuses, is that adultery? What if he has sex with a prospective business client, in order to close a deal that means the difference between success and ruin? What if he has sex with his psychotherapist, who seduces him when he is emotionally vulnerable? What if he has sex with the minister who is counseling him? What if he was seduced by a close friend who targeted him when he was emotionally vulnerable, and used the friendship to figure out how to emotionally manipulate him?

Different people can answer these question differently. One way of seeing that is to consider how someone one knows might react if she learned that her husband was having sex with his pastor and spiritual counselor.

Would she view this as adultery? Would she be forgiving—or even feel that there is nothing to forgive—because the husband was under the pastor's psychological pressure? Or would she be angry at her husband (of course, as well as at the pastor), because she viewed the husband as sufficiently morally responsible for his actions?

Different wives would react differently, which reflects the difference in moral judgment and moral opinions. People's use of the word "adultery," which suggests a moral and religious transgression, reflects this difference in opinion. And it is precisely this difference in opinion that rests at the heart of plaintiffs' objections to Covenant's statement.

This Court's decision in Yates v. Iowa West Racing, 721 N.W.2d 762 (Iowa 2006), further illustrates these two aspects of the word "adultery." [Details omitted. -EV]

[II.] Covenant's speech is protected under the Religion Clauses, because it is a religious evaluation about how conduct should be labeled.

Covenant's speech is thus protected under the Free Speech Clause, and would have been protected even had it been said in a secular discussion. But this protection is especially clear within a religious discussion.

Church leaders and congregants must be free to discuss what they view as adultery in God's eyes, not just theoretically but with respect to events in their community. They have to be able to define terms in accordance with their religious doctrines, free from interference by the secular legal system.

Consider, for instance, the word "marriage." Some people define this to include same-sex marriage; others define it to cover only opposite-sex marriage. Some define it to include polygamous marriage; others define it as purely monogamous marriage. The secular legal system today defines it one way; until recently, it defined it another way; and different religious groups define it in still other ways.

The Religion Clauses, as well as the Free Speech Clause, protect churches' ability to use any of these definitions. Say, for instance, that a minister faults two people for having sex even though they are not married to each other, but listeners know that the people are a same-sex couple in a civilly recognized same-sex marriage. The statement, in context, is a statement of religious opinion—in God's eyes, the minister is saying, this relationship is not a marriage, regardless of what it might mean to the secular legal system.

The change in meaning of "marriage" within the legal system leaves "[r]eligious doctrine and views contrary to this principle of law … unaffected"; "people can continue to associate with the religion that best reflects their views," and presumably to express those views. Varnum v. Brien, 763 N.W.2d 862, 906 (Iowa 2009). This Court has thus recognized that two definitions—secular and religious—may simultaneously exist, one for use in secular institutions and another in churches. Id. Likewise, even if "adultery" had a clear secular definition applicable to this case (which it does not, for reasons given in Part I), churches would still have a right to use the definition that they see as God's will rather than Caesar's.

Likewise, say that a church calls someone a "murderer," in a context where it is clear that it is referring to that person having performed an abortion (which the person did indeed perform). In context, this is a statement of opinion—that abortion is murder. Many people do not share this opinion. The secular legal system does not share this opinion. But the Religion Clauses protect the rights of churches to express this opinion (just as the Free Speech Clause protects the rights of others). The same is true for the opinion that sex with one's pastor is voluntary enough to constitute "adultery."

Nor does Kliebenstein v. Iowa Conference of United Methodist Church, 663 N.W.2d 404 (Iowa 2003), call for a different result. [Details omitted. -EV]

[III.] The First Amendment protects Covenant's speech from a finding of negligence liability by a jury.

Just as Covenant cannot be held liable for defamation based on its religious speech, so it cannot be liable for negligence. Indeed, even when speech has led to physical injury, courts have found it to be immune from negligence claims. Thus, for instance, broadcasters and film distributors cannot be liable on the theory that their speech negligently provoked some viewers into copying the crimes that the speech depicts. See, e.g., Olivia N. v. NBC, 178 Cal. Rptr. 888, 894 (Ct. App. 1981); Yakubowicz v. Paramount Pictures Corp., 536 N.E.2d 1067, 1071 (Mass. 1989). Magazine publishers cannot be liable on the theory that their speech negligently provoked some readers (even children) into doing dangerous, even deadly things. See, e.g., Herceg v. Hustler Magazine, Inc., 814 F.2d 1017, 1024 (5th Cir. 1987).

This protection exists because the government may not impose liability based on its judgments about what artistic, moral, and religious expression is "unreasonable." Speakers "[can]not properly be found to have violated their duty of reasonable care by exercising protected rights of free speech," Yakubowicz, 536 N.E.2d at 630. And "[i]n any event, the [speakers] cannot be liable for exercising those [free speech] rights." Id. at 630 n.4.

The same is true of religious speech. Reasonable people disagree about whether various religious teachings can cause harm, including physical or emotional harm (and not just theological or spiritual harm). Is it harmful to teach that homosexuality is evil, given that gay children (or even adults) could find that distressing or even emotionally traumatizing?

Is it harmful to teach that premarital sex is evil, on the theory that such teachings can lead people to feel guilty about natural human desires? Is it harmful to teach that premarital sex is acceptable, on the theory that such teachings can lead people to engage in behavior that can cause disease or unwanted pregnancy? Is it harmful to deny the existence of Heaven and Hell, on the theory that lack of concern about divine justice will encourage people to commit crime?

Whatever disputes there may be about these questions, judges and juries should not resolve those disputes, or decide which position is unreasonable. Likewise, it is not for judges and juries to decide whether it is reasonable for a church to use the word "adultery" to refer to congregants' being seduced by their pastor, regardless of whether this distresses those people. "It is not the province of the courts to inquire as to the soundness or reasonableness of religious beliefs." Wilmes v. Tiernay, 174 N.W. 271, 272 (Iowa 1919) (quoting Moran v. Moran, 73 N.W. 617, 621 (Iowa 1897)). The "reasonableness of [religious] statements is protected from judicial scrutiny by the First Amendment," including in tort lawsuits alleging negligence. Smith v. Tilton, 3 S.W.3d 77, 85-86 (Tex. Ct. App. 1999) (rejecting negligent misrepresentation claim based on such religious statements); see also, e.g., Braverman v. Granger, 844 N.W.2d 485 (Mich. Ct. App. 2014) (jury in negligence cases may not, in determining whether Jehovah's Witness defendant reasonably refused a blood transfusion, evaluate the "reasonableness of the tenets of the person's religion or the reasonableness of the person's decision to abide by his or her religious beliefs").

And liability for allegedly unreasonable religious statements is foreclosed even when the statements seriously distress people. Religions deal with matters that are deeply important to their members, both because they can touch on eternal life or eternal damnation, and because people's family and social lives are often centered on the church. Religious teachings, as well as related practices such as excommunication, shunning, prohibition of interfaith marriages, and more, can thus often deeply distress some members or ex-members of a religious group. Nonetheless, these religious teachings and practices are protected by the First Amendment. See, e.g., Sands v. Living Word Fellowship, 34 P.3d 955, 959 (Alaska 2001) (religiously motivated shunning cannot form the basis of a negligence claim, even when it led plaintiff to a suicide attempt that left him permanently paralyzed).

[IV.] The First Amendment protects "counterculture practices" as much as it protects the mainstream culture.

Plaintiffs argue that "counterculture practices" such as Covenant's "will often be accompanied by negative legal consequences." Appellants' Proof Brief 24. But the First Amendment protects countercultural speech and religious belief as much as it protects the mainstream culture. Indeed, countercultural speech and beliefs especially need constitutional protection. "The First Amendment protects the right of individuals to hold a point of view different from the majority …." Wooley v. Maynard, 430 U.S. 705, 715 (1977).

Conclusion

Covenant has a free speech right to voice its opinion about what constitutes adultery, even when such judgments are disputed. Covenant's speech is protected under the Religion Clauses because it is a religious judgment about moral responsibility. The First Amendment precludes negligence liability for such speech, even if it emotionally distresses plaintiffs. And there is no "countercultural practices" exception to the First Amendment. This Court therefore ought to affirm the District Court's decision to dismiss the plaintiffs' claims.