Monday, May 23, 2011

Who Will Care for Your Pets After the Rapture?

By Mike Dorf

With doomsday having come and gone (phew!), it's worth reflecting on a phenomenon that sparked increased interest in recent weeks, as anticipation of the apocalypse turned the thoughts of apocalypse-minded folk to the post-Rapture world: Who will care for their pets who will be left behind?  The answer, given by websites that specialize in such matters, such as this one, is: We non-Christians--a term used by the Rapture-minded to include atheists, agnostics, adherents to non-Christian faiths, and adherents to Christian sects that don't believe in the Rapture, i.e., the overwhelming majority of people now living on Earth.

You're probably thinking: Why would a merciful God rapture His obedient human servants but leave their obedient non-human animal servants behind?  And isn't the post-Rapture world supposed to be, well, post-apocalyptic, thus rendering pet care well-nigh impossible? According to the FAQ section of the website linked above, the answer to the second question is no: To be sure, there will be "massive confusion" post-Rapture, but the Google servers will likely survive!  Anyway, these are theological questions beyond my pay grade. Here I want to raise some legal questions about Rapture insurance for pets.

Let's begin with a question of criminal law: Could the proprietors of a Rapture pet insurance plan be prosecuted for fraud?  The leading Supreme Court case, United States v. Ballard, decided in 1944, appears to make the answer turn on the sincerity of the beliefs of the proprietors.  At the very least, Ballard forbids prosecution for fraud of those who sincerely believe in the truth of the religious claims they make.  That principle applies here.  In every jurisdiction with which I'm familiar, fraud is not a strict liability offense; it requires mens rea--the intent to take something of value in exchange for something dishonestly represented.  Rapture-believing Christians who sell Rapture pet insurance are taking something of value, but they are doing so honestly.

In Ballard, Justice Jackson, joined by Justice Frankfurter, would have gone further to say that even insincere peddlers of religious information, goods, and services should be protected because of the difficulty of separating inquiries into sincerity and inquiries into truth.  (Jackson made very effective use of observations by William James about the nature of religious belief.)

I can illustrate the problem that concerned Justice Jackson with a hypothetical variant on Rapture pet insurance.  Suppose two otherwise identical Rapture pet insurance organizations.  One is run by Rapture-believing Ned; the other is run by heathen Homer.  Each charges a $10 registration fee.  Is it possible that Homer but not Ned is guilty of fraud when the only difference between them is their respective religious beliefs?

We might not have to rely on proof of sincerity of belief if there are behavioral differences between Ned and Homer.  Ned, believing the Rapture is real, will take steps to enlist pet-loving non-Christians to gather and care for the pets in the event of the Rapture.  Homer, believing there will be no Rapture, might simply pocket the money.  If that were so, a prosecution of Homer but not Ned would not raise the issue that worried Justice Jackson.

Still, we can also imagine cases in which Ned and Homer behave identically in the pre-Rapture world.  Suppose the Rapture insurance contracts used by both Ned and Homer provide that registration fees can be used to pay current administrative costs, with the balance going into escrow; should the pet die before the Rapture, the balance is returned to the registrant.  Ned and Homer run their respective businesses as sole proprietorships, paying costs and paying themselves a reasonable salary for administering the site.  Or they both organize as non-profits, with each drawing the same salary as director.  Now it would literally be true that the only difference between Ned and Homer is their respective intents as mediated by their respective religious beliefs. In such circumstances, we have three choices:

1) Ned can't be prosecuted for fraud because of the sincerity of his beliefs, but Homer can.

2) Prosecute neither.  Ned can't be prosecuted for the reason just given, and it would be unfair to Homer to prosecute him because he holds different beliefs.

3) Prosecute them both because the Rapture is nonsense.

I assume 3) is off the table.  People can be prosecuted for making some false factual claims that have religious content.  E.g., a grocer who knowingly sold a pork sausage labeled as "kosher" or "hallal." However, the prosecution in such a case would be based on the fact that the sausage is falsely labeled, not that the state requires sausages to be kosher or halal or takes a position on the value of observing Jewish or Muslim dietary law.  The same grocer could be prosecuted for the same offense if he labeled the sausage "vegan."

So there's nothing necessarily wrong with secular courts enforcing general anti-fraud provisions that merely implicate religious views.  The core difficulty identified in Ballard arises when a secular court takes a position on religious matters.  A church that charges $25 for the minister to say a special prayer commits no offense if the minister in fact says the special prayer, and commits an offense if she does not.  But the church cannot be subject to any legal penalty on the ground that prayers lack efficacy.  (There may be implications for the church's non-profit status if it is literally selling indulgences.  Let's assume that these purchases are structured as donations in a way that is legally permissible.)

The hard question, therefore, is between options 1 and 2, i..e., whether Homer can and should be prosecuted even though Ned cannot be.  I'm inclined to prefer option 2 on grounds of equality and administrability as well as the reasons discussed by Justice Jackson in Ballard.  To be clear, the issue would not be one of religious liberty for Homer or even for Ned.  Post-Employment Division v. Smith, there is no Free Exercise right to exemption from a general anti-fraud law.  But the Ballard rule--that courts do not inquire into the truth or falsity of religious doctrines--survives Smith. 

And, following Justices Jackson and Frankfurter in Ballard, I would at least tentatively go further.  Under the Jackson approach, we should give con men and women greater freedom to make (what they believe to be) false representations about some religious matters than about non-religious matters.  That's an unfortunate byproduct of implementing the principle that secular courts cannot make judgments about the truth or falsity of religious claims, but the alternative would be worse. Moreover, as Justice Jackson himself eloquently wrote, this is only the tip of the iceberg.  I'll close with his remarkable and, as always, eloquent, language.  Justice Jackson wrote in his Ballard dissent: 
The chief wrong which false prophets do to their following is not financial. The collections aggregate a tempting total, but individual payments are not ruinous. I doubt if the vigilance of the law is equal to making money stick by over-credulous people. But the real harm is on the mental and spiritual plane. There are those who hunger and thirst after higher values which they feel wanting in their humdrum lives. They live in mental confusion or moral anarchy and seek vaguely for truth and beauty and moral support. When they are deluded and then disillusioned, cynicism and confusion follow. The wrong of these things, as I see it, is not in the money the victims part with half so much as in the mental and spiritual poison they get. But that is precisely the thing the Constitution put beyond the reach of the prosecutor, for the price of freedom of religion or of speech or of the press is that we must put up with, and even pay for, a good deal of rubbish.