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Religion and the Law

Amicus Brief in OneTaste Criminal Prosecution

Eugene Volokh | 10.30.2026 1:52 PM

Matt Kezhaya (Kezhaya Law PLC) wrote an amicus brief on my behalf in this case (U.S. v. Cherwitz & Daedone) a few weeks ago—many thanks to him for all his work on it!—and I thought I'd pass it along:

Summary of Argument

Under the Government's theory of spiritual coercion, people who at one point believed that volunteering for a religious organization is the path to enlightenment or salvation, but who later become disillusioned with their former beliefs, can be found to have been retroactively "coerced" into providing that labor. The same logic could apply to nuns who had felt religious pressure to do the educational or nursing work that their order was known for, or to monks who had felt religious pressure to do agricultural work that supports the monastery. Any religious organization that runs a monastery, convent, or any other institution where adherents are expected to work as part of their religious vocation could likewise face felony prosecutions.

Such a theory of criminal liability violates the Free Exercise Clause because it is not "neutral." Governments depart from neutrality not just when legislators pass laws designed to suppress religion, but also when courts enforce otherwise-neutral laws in ways that suppress religion precisely because of spiritual or religious qualities. Liability in this case turned precisely on the religious nature of the allegedly coercive conduct, and was imposed in the absence of any secular coercion such as violence or the threat of violence.

The sexual subject matter and conduct inherent within OneTaste's beliefs and practices is beside the point. The forced labor statute is not limited to sexual labor. 18 U.S.C. § 1589. Rather, it generally prohibits any "labor" obtained through "threats of serious harm." 18 U.S.C. § 1589(a)(3). Indeed, the "labor" subject of this charge was ordinary, non-sexual administrative work entailed in running a religious organization that features events and communal living.

To be sure, laws that restrict sexual labor will usually be neutral and generally applicable, precisely because they do not turn on any claims of religious or spiritual coercion. If any business, religious or not, offers its employees' sexual services in exchange for money, that might well violate generally applicable bans on prostitution or pandering. Likewise, if any business, religious or not, conditions employment on the employee's performing sexual services, that will usually constitute civilly actionable quid pro quo sexual harassment. And enforcing such laws would not jeopardize ordinary religious labor, precisely because they are focused on a narrow range of secularly-defined behavior that is seen as harmful (the exchange of sex for money or employment) rather than on a theory of spiritual coercion that can apply to a wide range of labor.

But such laws were not used in this case. The essence of this charge was punishing a particular religious group. The Court should vacate the convictions, or at least reverse and remand for a new trial with proper limiting instructions.

Argument

[I.] A theory of "spiritual coercion" violates the Free Exercise Clause.

The Free Exercise Clause of the First Amendment prohibits governments from targeting specific religious beliefs or practices as such. Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993). That prohibition bars more than just legislative enactments expressly targeting religion; it extends to criminal prosecutions that apply facially neutral laws in ways that target disfavored religious beliefs. Fowler v. State of R.I., 345 U.S. 67 (1953).

Of course, as Part III will discuss, "neutral" and "generally applicable" criminal statutes may be applied to religious behavior precisely the same way they are applied to secular behavior; otherwise, each of us would "become a law unto himself." Emp. Div., Dep't of Hum. Res. of Oregon v. Smith, 494 U.S. 872, 885 (1990); see also Reynolds v. United States, 98 U.S. 145, 167 (1878). But this power cannot be used to target religious actions because of their religious or spiritual character.

The threshold inquiry is whether the ideas are, within OneTaste's scheme of things, "religious." See Patrick v. LeFevre, 745 F.2d 153, 158-59 (2d Cir. 1984). Indisputably, Defendants, OneTaste, and adherents of OneTaste (including the so-called victims) all considered the doctrines subject of this criminal trial to be "religious." See A-977 ("We believed that … your path to God was through your orgasm") (emphasis added); see also A-1053 (adherents of OneTaste seek "something more" beyond ordinary existence believe "Our most potent biological drive, Orgasm, is the key to unlocking this power.").

OneTaste's doctrines addressed distinctions between the physical and spiritual realms in a dichotomy between the "third dimension" and the "fourth dimension." See A-694. They addressed issues of worldly suffering and promised both enlightenment and transcendence through ceremonial rites. A-1114 (orgasm "was more about energy," borrowing from "Buddhist principles like the concept of qi"); see also A-1446 ("OneTaste teachings integrate the principles of mindfulness with the practice of orgasm"); A-1089 (OneTaste teachings included sex "as a........

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