Attorney Matt Kezhaya of Kezhaya Law PLC drafted an amicus brief on my behalf in the matter U.S. v. Cherwitz & Daedone a few weeks ago, and I am grateful for his substantial work on it. I’m sharing the brief here:
Summary of Argument
If the Government’s theory of spiritual coercion is correct, individuals who once believed that volunteering for a religious group could lead to enlightenment or salvation, yet later grow disillusioned with those beliefs, could be retroactively deemed to have been coerced into offering that labor. The same reasoning could implicate nuns who felt religious pressure to perform the educational or nursing duties associated with their order, or monks compelled to do agricultural work that sustains their monastery. Any religious institution that operates a monastery, convent, or any other organization where adherents are expected to labor as part of their vocation could face felony prosecutions under this theory.
Such a theory of criminal liability runs afoul of the Free Exercise Clause because it is not neutral. Government action becomes biased not only when lawmakers craft laws aimed at suppressing religion, but also when courts enforce otherwise neutral statutes in ways that suppress religion due to the spiritual or religious character involved. Here, liability hinged on the religious nature of the purported coercive conduct, and it was imposed without any secular basis such as violence or its threat.
The sexual subject matter and the conduct intrinsic to OneTaste’s beliefs and practices are not material to the outcome. The labor statute in question is not limited to sexual labor; 18 U.S.C. § 1589 governs labor obtained through threats of serious harm (a broader provision than sex-specific coercion). In fact, the charged “labor” was ordinary, non-sexual administrative work involved in operating a religious organization that hosts events and facilitates communal living.
To be sure, statutes restricting sexual labor tend to be neutral and generally applicable because they do not hinge on religious or spiritual coercion. If any business—religious or not—presents sexual services for money, such conduct could breach generally applicable prohibitions on prostitution or pandering. Similarly, if employment hinges on an employee providing sexual services, that would typically constitute civilly actionable quid pro quo sexual harassment. Enforcing such laws would not jeopardize ordinary religious labor, as they target a narrow, secular behavior (the exchange of sex for money or employment) rather than a broad theory of spiritual coercion that could apply to a wide array of labor.
However, those laws were not invoked in this case. The essence of the charge was to punish a specific religious group. The Court should reverse the convictions, or at minimum overturn and remand for a new trial with appropriate limiting instructions.
Argument
[I.] A theory of “spiritual coercion” violates the Free Exercise Clause.
The Free Exercise Clause of the First Amendment bars governments from targeting particular religious beliefs or practices as such. In Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993),
That prohibition extends beyond explicit legislative acts aimed at religion and covers criminal prosecutions that apply facially neutral laws in ways that target disfavored religious beliefs. See Fowler v. State of R.I., 345 U.S. 67 (1953).
As discussed in Part III, even though “neutral” and “generally applicable” criminal statutes can regulate religious behavior in the same manner as secular conduct, this power cannot be used to target religious actions because of their spiritual character. 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 authority cannot be used to penalize religious actions merely because of their religious or spiritual nature.
The initial question is whether the ideas fall within what OneTaste characterizes as “religious.” See Patrick v. LeFevre, 745 F.2d 153, 158-59 (2d Cir. 1984). Undeniably, the Defendants, OneTaste, and its followers treated the doctrines at issue as religious. See A-977 (quote: “We believed that … your path to God was through your orgasm”) (emphasis added); see also A-1053 (adherents seek “something more” beyond ordinary life, believing “Our most potent biological drive, Orgasm, is the key to unlocking this power.”).
OneTaste’s teachings delineated a split between the physical and the spiritual, framed as a division between a “third dimension” and a “fourth dimension.” See A-694. They addressed worldly suffering and promised enlightenment and transcendence through ceremonial rites. A-1114 (orgasm described as “more about energy,” drawing on “Buddhist principles like the concept of qi”); see also A-1446 (“OneTaste teachings integrate mindfulness with the practice of orgasm”); A-1089 (OneTaste taught sex “as a ritual practice” and created a “Magic School … with priests and priestesses of orgasm”); see also A-1426-1427 (PowerPoint outline of “Alchemize shadow into power through orgasm” and “Orgasm Magic: Bringing out the elements of magic [and] Put the principles of OM into practice in creating what you want … [including] Rituals and ceremonies”). Documented ceremonies included a marriage ceremony at A-891, a foot soaking ritual at A-1085, and a shower ritual at A-1152. The core ritual tenet was that ritualized sexual activity—“OMing” or “Orgasmic Meditation”—constituted a mindfulness practice, a “meditation on sensation without a goal,” as described in A-577, A-785.
The Government emphasized the sexual dimensions of these beliefs and practices. See A-1229. Yet it is not the government’s role, including the courts, to dictate what counts as orthodox in any religion. W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943). Because OneTaste and its adherents viewed these beliefs and practices as religious, the Free Exercise Clause shields their beliefs and practices from governmental targeting.
And the Government did not seriously contest OneTaste’s religiosity. It acknowledged and even underscored the spiritual character of OneTaste’s activities. In the Government’s closing, it claimed the essence of the charge was that “the defendants indoctrinated the victims to believe that Nicole Daedone was a guru and that her teachings were the path to enlightenment and spiritual growth.” A-1222. Prosecutors argued that “Nicole Daedone taught that orgasm was God.” A-1232. And “nearly all of them [the victims] lived in OneTaste housing and were subjected to these teachings incessantly.” A-1234. The asserted problem—indoctrination and teachings—constitutes the very core of religion: persuading followers to accept doctrines as spiritual truths. The fact that the claimed victims organized their lives around OneTaste’s beliefs and practices demonstrates spiritual and religious belief, not criminal coercion.
There would have been illegality if there had been proof that the victims were physically forced to embrace OneTaste’s doctrines; but that was not the Government’s theory. Each claimed victim testified that they joined voluntarily and left of their own accord. A-267-268; A-872-873; A-939; A-1152-1153. They also testified that they left freely. A-882; A-939; A-1107. The “indoctrination” and “teachings” for which the Defendants stood trial describe proselytization—the essence of religion—which cannot be criminalized.
Similarly, the prosecution argued that the Defendants “disrupted victims’ personal relationships and isolated them from friends and family.” A-1222; see also A-1235 (victims “felt like OneTaste was all they had”). More specifically, the Defendants allegedly encouraged adherents, including the claimed victims, to reside in a commune with others sharing their views. A-262, 359-60, 775, 893-894, 1004-06. But this disruption did not stem from physical coercion or threats of violence; rather, it arose from the adherents’ perceived spiritual value of participating in a particular religious community. A-872; A-1008-1009 (Ms. Kandell described cohabitation as “one of the greatest experiences of my life,” due in large part to “the sense of community” and “the focus of the communal living”); A-1138-1139.
This is a common practice among many religious orders. By definition, any follower of any monastic tradition might be described as having their personal relationships disrupted or becoming isolated from less committed friends and family. See Volokh, Addiction, 75 Emory L. J. at 1190. Nor does it demonstrate that a religion discourages association with non-adherents, as many do. E.g., Paul v. Watchtower Bible & Tract Soc’y of N.Y., Inc., 819 F.2d 875, 883 (9th Cir. 1987) (harms from being shunned by Jehovah’s Witnesses are not tortious conduct).
The Government also urged the jury to convict because Defendants “harmed victims financially by driving them into debt and not paying them for their labor.” A-1222. Specifically, the Government stressed that the Defendants accepted and even encouraged volunteers to offer their labor to the chosen religious organization. A‑908‑910; A‑1028‑1030; A‑1095-1103. But these “victims” were not coerced or defrauded into volunteering; they knew full well that their services would be unpaid, and they still chose to volunteer. A-947-48; A-1152-1153; A-872-76. This dynamic is also common in religious contexts: a hallmark of religious practice is reliance on voluntary contributions of money, goods, and services from adherents. See James Madison et al., Remonstrance Against Religious Assessments (reproduced in full at Everson v. Bd. of Ed. of Ewing Twp., 330 U.S. 1, 63–72 (1947)). Indeed, many faiths urge adherents to tithe around 10% of their secular income. See Volokh, Addiction, 75 Emory L. J. at 1180 n. 5. But under First Amendment protections, one could not criminalize that practice as extortion merely because religious pressure might convey social ostracism or spiritual rewards. Id., at 1180.
The government’s central claim was that the Defendants compelled the supposed victims to perform voluntary services through religious indoctrination and, more broadly, created a sense of dependence on OneTaste. See A-1236 (victims “felt like their entire world was OneTaste. It was their community, their friends, where they worked, and where they lived. And the defendants did all of this by design”). Yet such perceptions of reliance on a religious community are unremarkable within religious contexts. See Volokh, Addiction, 75 Emory L. J. at 1183 (noting that many religions slowly draw people into a community and belief system that they may find emotionally hard to leave).
Across many faith traditions, believers are taught eternal consequences without Christ, the promise of lasting fulfillment through religious practice, and the expectation that fervent commitment—whether through mission work, communal service, or ritual observance—will bring spiritual reward. See Volokh, Addiction, 75 Emory L. J. at 1180, 1190. These dynamics are not irrational from a religious standpoint; they are typical of religious life. See United States v. Ballard, 322 U.S. 78, 86 (1944).
Challenging the Government’s position by arguing that victims felt “compelled” to perform services because of religious conviction does not excuse criminal punishment. If individuals must be free to enter and exit their chosen faiths at will, they must also accept the risk that their religious commitments may lead them to contribute time, money, or labor. The Court should hold that the Free Exercise Clause bars this conviction.
[II.] The trial itself was not rooted in religious neutrality.
The Government’s enforcement action, even under a facially religion-neutral and generally applicable statute, violates the Free Exercise Clause when its application itself lacks neutrality. In Masterpiece Cakeshop v. Colorado Civil Rights Comm’n, 138 S. Ct. 1719 (2018), the Court invalidated an enforcement action because of religious bias in how the decision was made. The decision-makers disparaged the baker’s religious beliefs as “despicable” and treated them as mere rhetoric. See Masterpiece Cakeshop, 138 S. Ct. at 636-39. The Court explained that even subtle departures from neutrality on religious matters are unconstitutional, not only in legislation but also in executive enforcement. Id., at 638.
Just as in Masterpiece Cakeshop, the record here shows a pattern of denigrating this particular religion. Ms. Gupta guided the jury to examine OneTaste’s vocabulary and doctrines as proof of misdeeds. A-1232. She highlighted terms like “TurnON” (appearing alongside the yoga concept “state of flow”), “muggles” (non-adherents), “matrix” (a notion of one’s false reality), and “tumescence” (a spiritual sense of “bad energy you’re holding on to”), and she described these terms as tools used to “indoctrinate the victims.” A-1232, A-1235. This approach invited jurors to judge unfamiliar religious language as evidence of religious illegitimacy, something neither prosecutors nor jurors may do. See Masterpiece Cakeshop, 138 S. Ct. at 639; Fowler, 345 U.S. at 70.
Religions routinely employ specialized terms such as “saved,” “possessed,” “called,” or “enlightened,” which can seem opaque or peculiar to outsiders. That unfamiliarity does not strip OneTaste of First Amendment protections and certainly cannot justify a felony conviction on the basis of religious language alone. See, e.g., Thomas v. Rev. Bd. of Indiana Emp. Sec. Div., 450 U.S. 707, 714 (1981). To the contrary, our tendency to distrust unfamiliar religious expressions is precisely why the First Amendment protects diverse religious practices. See Ballard, 322 U.S. at 87; see also Marsh v. Chambers, 468 U.S. 783, 792 (1983).
Additionally, the prosecutor labeled OneTaste a “sex cult.” A-1223, A-1264. That pejorative framing served as a rhetorical device to persuade jurors to view OneTaste’s teachings with suspicion because they deviated from the mainstream. Like the name-calling in Masterpiece Cakeshop, this label aimed to cast doubt on the legitimacy of a religious belief system. See Masterpiece Cakeshop, 138 S. Ct. at 635.
The government argued that “OMing” was not genuinely spiritual; it linked the practice to spirituality merely as a legal shield, insinuating that what followers regarded as sacred was a manipulation for legal protection. A-1233; see also A-1381 (“They [Defendants] reduced them [victims] by … indoctrinating them with so-called spiritual teachings and practices.”). But whether certain meditation or spiritual practices are “truly” spiritual is not a question for secular courts to decide. The Government cannot dictate what shall be considered orthodox in religion. Barnette, 319 U.S. at 642. The Government’s position reduces to determining which religious ideas deserve legitimacy, which is impermissible under the First Amendment. See Ballard, 322 U.S. at 86-88. Yet the Government pressed this point by arguing:
It is improper to teach your employees that their spiritual purpose is to alter the course of war through their work, and that straying from OneTaste’s path would ruin them spiritually.
A-1284.
While there is a narrow zone in which a properly instructed jury can assess whether beliefs are sincerely held (see United States v. Seeger, 380 U.S. 163, 165 (1965)), the trial did not provide any such instruction. On the contrary, the District Court refused to give jury instructions acknowledging that any “alleged threats were covered by the First Amendment.” A-1211. The District Court even cautioned defense counsel against invoking the First Amendment before the jury: “I’m not going to let you instruct the jury or even come close to instructing the jury on the First Amendment.” A-1212. The court refused to order a mistrial despite the Government’s urging that jurors should judge the defendants’ spiritual beliefs.
The Government’s rhetorical strategy falls far short of the neutrality required by Masterpiece Cakeshop. It openly disparaged the defendants’ religion and invited the jury to assess the legitimacy of OneTaste’s beliefs. It would be naive to think that jurors can always resist the pull of such persuasion, especially given that the highest law of the land disallows providing that power to judges, lawmakers, jurors, and prosecutors alike. “If a person could be jailed because a jury in a hostile setting found those teachings to be false, religious freedom would be hollow indeed.” Ballard, 322 U.S. at 87.
[III.] Defendants were not charged with commercial sexual practices.
Of course, nothing precludes applying truly neutral laws to regulate commercial sexual conduct. For example, a group that sells sexual services for money could still face neutral, generally applicable bans on prostitution under Employment Division v. Smith. Such laws can apply without relying on arguments about spiritual coercion or claims that the defendants indoctrinated individuals to regard someone as a guru and to pursue enlightenment and growth through such teachings. A-1222. It would not matter whether the instructor “taught that orgasm was God.” A-977. If the alleged crime involved the sale of sexual services, it would be the commercial act that constitutes the offense, not the religious significance of the act.
Likewise, if an employee could claim that an employer required sexual services as a condition of employment, the employee might pursue a claim for quid pro quo sexual harassment—a matter that is largely religion-neutral. The Government could even criminalize such quid pro quo harassment. See Tex. Penal Code Ann. § 39.03 (criminalizing sexual harassment under the color of public office).
Unlike the Government’s broad reading of the coerced labor statute, none of these scenarios would threaten religious traditions that emphasize monastic life or religious labor as a calling. None would treat religious or spiritual doctrines as coercion. And none would deem such teachings criminal when they move people to feel compelled or spiritually obligated to perform duties assigned by a religious community.
Indeed, in this case the Government chose not to prosecute under laws that ban the commercial sale of sexual services—perhaps because there was no evidence of money changing hands for sexual activity. But those laws exist and address genuine commercial exploitation of sex. Similarly, there are laws addressing rape and sexual assault that respond to true physical coercion. There is no reason to expand coerced-labor statutes to cover a far broader range of religiously influenced labor merely because it has a spiritual dimension, especially when it could impact much more than sexual conduct.
Conclusion
Because the Government’s coercion theory rested in part on indoctrination into religious beliefs and on the threat of expulsion from a religious community, these convictions cannot withstand Free Exercise Clause scrutiny….
