Because I have not heard the argument that Professor Delgado purports to derive from the thirteenth amendment before and I am fascinated by it, I would like to share my immediate reactions to it.
If we establish that certain groups calling themselves religions (but which we label as cults because of the way they influence people to become devoted to their principles) are to be labeled as slavemasters of those people whom they recruit, then we are violating both the establishment clause and the freedom of religion clause. If we say that groups A, B, and C are legitimate, so that people can become devotees of these religions and join monasteries and nunneries and priesthoods and the state will not interfere, but that groups D, E, and F are not legitimate religions, then we are establishing A, B, and C as the only true religions, and thus violating the establishment clause and interfering with the free exercise of religion by groups D, E, and F. According to Professor Delgado, if a particular group were to be defined as a “cult,” then even if an individual claimed that he or she belonged voluntarily to that group, his or her protest of voluntariness would be overridden. If we say, “You are a slave and we will not permit you to remain a member of that group,” we are violating both the freedom of association and free exercise rights of the individual who may want to join the group and remain a member whether we like it or not.
Professor Delgado argues that the advantage of a thirteenth amendment model is that we will not have to face the voluntariness issue; he then says (and correctly) that the thirteenth amendment cases deal without exception with either force or a threat of force. If force or a threat is involved, however, the question of whether one has voluntarily surrendered to a cult remains unresolved, and so we still must face the “voluntary” issue which Professor Delgado claims we can avoid by utilizing this model.
I have no doubt that some religious minorities do instruct their members to do some of the things that Professor Delgado has mentioned. Some religious minorities, for example, do instruct their members to chant. I do not think that we have the right, however, either to prevent someone from suggesting to another that he or she chant or to interfere with the desire to chant. I believe that right is protected by the first amendment.
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