(Editor’s Note: The following opinion column contains certain language some readers may find offensive.)
I have hanging on the wall of my home a copy of George Washington’s famous letter to the Hebrew congregation of Newport, Rhode Island in 1790.
In it he assures the tiny Jewish community of Rhode Island that the United State government will give “to bigotry no sanction.”
He wished that the “children of the flock of Abraham, who dwell in this land continue to merit and enjoy the goodwill of the other inhabitants — while everyone shall sit in safety under his own vine and fig tree, and there shall be none to make him afraid.”
At the time, many regarded Jews as part of an anti-Christian cult.
Many also regarded the small catholic community as “popish” cult.
Decades later the Mormons were widely considered a cult.
The First Amendment, however, precluded the government from establishing any religion or discriminating based on belief. This has been one of its most important protections of the consciences of American citizens.
In the recent case of United States vs. Cherwitz Et-Al, prosecutors have violated these crucial principles by misusing the Trafficking Victims Protection Act (TVPA) — a statute meant to combat modern-day slavery — to criminalize and ban the spiritual practices of a disfavored and controversial group.
The defendants in Cherwitz were leaders of an organization called OneTaste, which promoted a practice called “orgasmic meditation.”
Some will find such a practice unorthodox, perhaps even objectionable.
But that’s not the issue.
The issue is whether it’s protected by the U.S. Constitution.
For the first time, the federal government has secured a forced labor conviction not by proving violence, threats, or abuse of law, but by claiming that consenting adults were victims because they were “brainwashed.”
The U.S. Supreme Court anticipated this danger decades ago. In United States v. Kozminski, 487 U.S. 931 (1988), the high court made clear that psychological influence alone does not constitute involuntary servitude.
To hold otherwise, the justices warned, would give prosecutors unchecked authority to criminalize unpopular organizations, not because of what they did, but because of who they were and what they believed.
The court insisted that “involuntary servitude” under federal law requires force or threats of physical restraint or abuse of legal process — not mere persuasion, peer pressure, or spiritual influence.
When Congress passed the TVPA in 2000, it never intended it to criminalize the conduct at issue in Cherwitz (ibid.). The statute was designed to target genuine trafficking: situations where people are kidnapped, physically compelled, deceived about their circumstances, or held under threats of serious harm.
It was never intended to punish unconventional forms of spiritual expression, however unappealing they may appear to outsiders.
Yet in Cherwitz (supra), that bright line has been crossed.
Adults who voluntarily joined workshops, lived communally, and described themselves at the time as consenting participants were, years later, recast by the government as forced laborers.
Their subsequent regret over having voluntarily participated was treated as evidence of coercion. Influence was rebranded as exploitation.
The government relied on discredited theories of “brainwashing” serious scholars abandoned decades ago, repackaging them under the label “coercive control.”
If allowed to stand, this precedent threatens not only fringe spiritual movements but mainstream religious life across America.
It’s a common phenomenon that people who willingly join religious, spiritual or other groups later regret that decision and turn against the groups.
Critical books and films have been made by former members of such groups, including Chasidim and Mormons.
Imagine you are a member of the Amish community, whose simple way of life is governed by the Ordnung, a communal set of agreed-upon rules that govern dress, permissible uses of technology, religious duties, and rules regarding interaction with outsiders.
This monastic way of life, which is a prominent feature in many of our country’s vast array of religions, can be characterized as evidence of coercion.
Members who do not conform to the Ordnung and who can’t be convinced to repent face excommunication and shunning, which can later be used as evidence of psychological harm.
Or imagine that you follow the Evangelical Tradition — the faithful proclamation of the Gospel, which is central to this Tradition, later becomes manipulative “recruitment” or “brainwashing” by a creative and zealous prosecutor.
The danger here is not abstract.
I’ve already heard from faith leaders who fear that prosecutors may employ this “psychological coercion” theory against fringe religious organizations.
It’s not hard to imagine how prosecutors, motivated by political pressure or cultural hostility, could target ministries or denominations that are out of step with prevailing opinion.
This is not a hypothetical slippery slope — it is an actual well-paved road to selective prosecution. Popular groups will be protected; unpopular ones will be vulnerable.
That is the very definition of arbitrary justice and faith discrimination.
The First Amendment exists precisely to prevent such outcomes.
It does not require us to embrace or even respect every spiritual practice.
It requires us not to persecute them unless and until they cross the clear line into actual coercion.
Adults have the right to make choices about their faith, even choices they later regret.
They have the right to submit to disciplines, confessions, or lifestyles others may find odd. What the government has no constitutional power to do — is retroactively criminalize beliefs and communities simply because they fall outside the cultural mainstream.
Congress should now act to restore the TVPA to its intended scope. Lawmakers should make clear that the statute targets genuine trafficking — situations involving actual force, threats, or fraud — not spiritual influence, psychological persuasion, or retrospective regret.
Clarifying legislation is essential to prevent prosecutors from turning the TVPA into a catchall statute for criminalizing unpopular faiths.
The stakes are far greater than one case. Today the defendants were leaders of OneTaste, an organization few Americans have heard of.
Tomorrow, the targets could be evangelical ministries, Catholic dioceses, Hasidic Jewish communities, or Muslim institutions. Once prosecutors are allowed to criminalize belief, no faith tradition is secure.
The establishment and free exercise clauses of the First Amendment deny the government the power to decide which religions, or spiritual practices, are legitimate and which are crimes.
That line must remain bright, and it must remain firm.
To do otherwise is to give bigotry sanction. Because when belief itself becomes a crime, every faith is at risk.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law Emeritus at Harvard Law School and the author most recently of “The Case for Color Blind Equality in the Age of Identity Politics,” and “The Case for Vaccine Mandates,” Hot Books (2021).? Read more of Alan Dershowitz”s reports — Here.
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