Gather round brothers and sisters, and hear the word of the Texas Court of Appeals. Today’s sermon addresses the intersection of religion and regulation. Take out your hymnal, and turn to Hawkins v. State, 2018 Tex. App. LEXIS 7863 (Texas Ct. App., 14th Dist. Sept. 27, 2018). Consider the case of Mr. Hawkins, hereinafter referred to as “the defendant,” but who self-identified as a bishop of the Genesis II Church of Health and Healing. A primary teaching of said church was the amazing curative power of “MMS,” which variously stands for Miracle Mineral Solution, Master Mineral Solution, or Miracle Mineral Supplement. (We think of MMS as an abbreviation either for the more prosaic Multimedia Messaging Service or the sillier Make Me Smile. But who are we to depart from church doctrine?). MMS is a sodium chloride product typically used as a disinfectant. It is an industrial bleaching agent. The defendant held monthly seminars and taught his flock how to mix and consumer MMS. And what bounty shall this marvelous MMS elixir deliver? Why, nothing less than a cure for cancer, HIV, heart disease, autism, and Ebola. So sayeth the defendant.
The state of Texas heard this preaching and, lo, announced that it was Bad. The state filed an action under the Deceptive Trade Practices Act (DTPA). The main prayer for relief was to enjoin the defendant and his followers to refrain from promoting MMS. Justice in Texas was swift. The state’s prayer was answered. The MMS folly was put asunder. The injunction was issued. Thusly were poor innocents spared the fate of dousing their innards with bleach and tumbling into the fiery pit of disease and despair.
But the defendant gnashed his teeth against this ruling, and filed an appeal. Alas, his teeth must still be gnashing, because the Court of Appeals decreed that the trial court’s ruling was Right and Good.
As a preliminary matter, the trial court quickly disposed of a raft of frivolous arguments, such as that the court had no jurisdiction over a sovereign church, that the government lawyers were unauthorized to practice law, that a church cannot be a dba, and that there was no contract between church and state. For anyone who clerked and had to attend to tax objector appeals, this litany of beefs will seem familiar. Sometimes the hardest part for a court or opponent is first to figure out exactly what the argument is, then restate it cogently, then bash it with solid precedent (which is much preferable to the jawbone of an ass, though we have occasionally encountered or even employed that weapon, too, in our almost two score of legal practice).
The actual substantive argument by the defendant is the most interesting: that “no one has the right to prevent a church or its believers from teaching its belief and offering its sacraments if the sacraments do not consist of controlled or illegal substances.” Ah, at last we arrive at the type of lofty issue we might have encountered in Con Law class. But the religious freedom claim here is framed exceedingly weakly. The state brought the DTPA action on the grounds that the defendant had engaged in false, misleading, and deceptive ads and practices by promising benefits of MMS that it in fact lacks, by failing to disclose the utter lack of scientific research supporting such claims, and, worst, by failing to disclose the health risks of MMS. Religious freedom is not a freedom to poison fellow citizens. That much is clear. We’d also say that religious freedom is not a freedom to lie to one’s fellow citizens, but even with the passing of Christopher Hitchens we’d expect some debate on that proposition. But more to the point, religious freedom does not call off neutral application of the state’s police powers.
Whereupon the Hawkins court consulted a Higher Authority – the federal Food and Drug Administration. In 2010, the FDA issued a safety alert about MMS, warning that it was an industrial bleach used for stripping textiles, and that consumption of MMS could lead to nausea, vomiting, diarrhea, and severe hydration. At least one person suffered a life-threatening reaction after drinking MMS. That’s the FDA warning against physical harm, not taking sides in some religious schism.
What’s the church’s position? According to at least some MMS labels, reactions such as nausea and vomiting were “evidence that MMS is working.” Indeed, MMS seems to work in mysterious ways. Some of the most damning evidence resides on the defendant’s website. Those who adhered to the ways of MMS would know how to fix 95% of mankind’s maladies. The church claimed to be “superior to health insurance.” (Okay, our mind might be open about that one.). Learn about MMS, and you can call yourself a Reverend. Dispense MMS to 50 unlucky people, and you can call yourself Doctor.
But the defendant probably should not call himself Lawyer. For all of his arguments fell on deaf ears. Hawkins was not a case of religious discrimination. The police power of the state had not been exercised arbitrarily or capriciously. Render unto Caesar, etc. Little wonder that the appellate court wasted little ink in affirming the trial court’s ruling and offering an easy Amen.