By HOWARD TROXLER
St. Petersburg Times
December 8, 1999
There is a story about lawyers that involves a flower pot falling off a
high ledge. A passer-by sues, claiming he was injured.
The defense lawyer answers:
First, it wasn't our pot.
Second, if it was, it didn't fall.
Third, if it fell, it didn't hit you.
Fourth, if it hit you, you weren't hurt.
This "flower pot strategy" is being employed by both sides in the current
criminal case against a corporation of the Church of Scientology. Both
sides' arguments are excellent.
Lisa McPherson, 36, was a Scientologist who died after being under the
church's care in Clearwater in 1995. The state has filed charges of abuse
and practicing unlicensed medicine against the church's Flag Service
Organization, or simply "Flag."
McPherson died that Dec. 5 after 17 days at the church's Fort Harrison
Hotel under the supervision of Scientologists. The state says she died of
a pulmonary embolism, with dehydration and immobility as contributing
factors. The state says her final days featured raving delusions and
forced medication.
Flag's lawyers seek to have the charges dismissed.
First, they say it is a violation of the First Amendment, and laws that
protect religious freedom, to charge the entire organization instead of
individuals (if anybody at all). It is an overbroad and damaging
interference with religion.
Second, even if Flag can be charged, it is unconstitutional to punish
Scientologists for their religious belief opposing psychiatric care. After
all, the law cannot force a Christian Scientist to accept medical care, or
a member of Jehovah's Witnesses a blood transfusion.
Third, even if the laws of abuse and unlicensed medicine were violated,
that was done by "errant, albeit well-meaning" individuals, and not by
Flag or the church itself, the lawyers argue.
"The state indeed has the power to inflict far greater and wider
punishment by prosecuting the church rather than the individuals," Flag's
lawyers argue. "But it has no legitimate interest in so doing."
Florida politicians, pay attention. This is your doing. This argument is
based in part on the state Religious Freedom Restoration Act of 1998,
which the Legislature passed as a sop to the Christian Coalition. I'll bet
nobody had the Scientologists in mind.
This law says that the state must have a "compelling interest" before
imposing a burden on the exercise of religion. Even then, the state must
use the "least restrictive means necessary."
Bernie McCabe, the Pinellas-Pasco state attorney, and his assistants have
filed a vigorous counter-argument.
First, Flag's treatment of McPherson is not about religious freedom, they
argue. It was not consistent with the church's own doctrine.
Second, even if there is a legitimate claim of religious freedom, that
freedom does not protect a crime. The most famous example is that Mormons
can be prosecuted for bigamy.
Third, even if the religious-freedom law applies, these charges are not a
"substantial burden" on the church. Mere bad publicity is not an
impermissible burden. Neither are the minimal potential fines involved.
Finally, the state argues that Flag should be charged because the
organization as a whole, many of its officers and staffers, were involved
in or aware of McPherson's case. This was not a case of one or two loose
cannons.
"The complicity in the crimes arising out of Lisa's stay at the Fort
Harrison is widespread," the state argues, "and the responsibility for the
failure to act is collective."
How would you rule? Like the Scientologists' lawyers, I am not keen on the
idea of charging churches with crimes. But not many people die in a
church's care because of alleged negligence, either. I would deny the
motion to dismiss and let a jury decide the central question of fact --
did Flag as an institution break the law in Lisa McPherson's death?