Hubbard v. J Message Group Corp. et al

Filing 35

Memorandum Opinion and Order by Magistrate Judge Kirtan Khalsa granting 19 Motion to Dismiss for Failure to State a Claim. (tkl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
CAROL HUBBARD,
Plaintiff,
vs.

Civ. No. 17-763 KK/JHR

J MESSAGE GROUP CORP.,
a Vermont corporation, KENNETH
CHARLES ALEXANDER and
DEBORAH SUE ALEXANDER,
Husband and Wife,
Defendants.

MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANTS’ MOTION TO DISMISS1
THIS MATTER is before the Court on Defendants’ Rule 12(b)(6) Motion to Dismiss
With Supporting Memorandum (Doc. 19) (“Motion”), filed November 16, 2017. Plaintiff filed a
Response on January 24, 2018 (Doc. 32).2,

3

Defendants filed a Reply on January 16, 2018

(Doc. 28). The Court, having reviewed the parties’ submissions and the relevant law, and being
otherwise fully advised in the premises, finds that the motion is well taken and shall be
GRANTED.
BACKGROUND

1

Pursuant to 28 U.S.C. § 636(c), the parties consented to the undersigned to conduct any or all proceedings, and to
enter an order of judgment, in this case. (Docs. 16, 17, 18.)
2

Plaintiff initially filed a Response on December 18, 2017, that was stricken from the record. (Doc. 22.) Plaintiff
refiled her Response on January 24, 2018. (Doc. 32.)
3

Plaintiff attached a Declaration and two exhibits to her Response. (Docs. 32-1, 32-2, 32-3.) These attachments
were not referred to or incorporated by reference to Plaintiff’s Amended Complaint and have not been considered in
the Court’s ruling on Defendants’ Motion to Dismiss. 

1 

For the purpose of ruling on Defendants’ Motion, the Court assumes that the following
well-pled facts taken from Plaintiff’s Amended Complaint are true.4 Mayfield v. Bethards, 826
F.3d 1252, 1255 (10th Cir. 2016) (“[I]n reviewing a motion to dismiss, [the Court] accept[s] the
facts alleged in the complaint as true and views them in the light most favorable to the
plaintiff.”). Defendant J Message Group Corp. (“JMGC”), also called Companions of Wisdom
(“CoW”) is a closed, invitation-only, nonprofit organization, incorporated under the laws of the
State of Vermont, with its principal place of business in Vermont. (Doc. 15 at ¶ 10.) Defendant
Kenneth Alexander and Defendant Deborah Alexander (husband and wife) are officers and
directors of JMGC, and they are citizens of the State of Washington. (Id. at ¶¶ 10, 12.)
Defendants conduct fee-based seminars and conferences and develop written materials to
promote their reincarnation-based doctrines, worldview, and advocacy agenda to its members
and to those interested in engaging in its programs. (Id. at ¶¶ 11, 20.) Plaintiff, a citizen of the
State of Virginia, met and became acquainted with the Alexanders and with JMGC in 2008, and
she began paying to attend JMGC’s conferences. (Id. at ¶ 20.) The actions giving rise to this
lawsuit occurred during a JMGC conference held in Santa Fe, New Mexico. (Id. at ¶¶ 6, 34-35.)
Defendants promote the belief that people have past lives that influence their current life
and, as noted earlier, Defendants develop written materials to promote their reincarnation-based
doctrines, worldview, and advocacy agenda to the organization’s members. (Id. at ¶¶ 11, 14) As
part of the CoW program, Defendants hold seminars and issue publications to the members of

4

Although a court must generally take the allegations in a complaint as true, no matter how skeptical the court may
be, “[t]he sole exception to this rule lies with allegations that are sufficiently fantastic to defy reality as we know
it[,]” for example, those related to “experiences in time travel.” Iqbal, 556 U.S. at 696, Souter, J. dissenting; Valdez
v. Nat’l Sec. Agency, 228 F.Supp.3d 1271, 1280 (D. Utah 2017) (“At the pre-discovery motion to dismiss stage, [the
district court] must assume the truth of well-pleaded factual allegations that are not simply legal conclusions or bare
assertions of the elements of a claim—so long as the allegations do not defy reality as we know it[.]”)

2 

JMGC. (Id. at ¶¶ 11, 30.) JMGC is authoritarian in nature and does not permit dissent or
questions regarding its doctrines or leadership. (Id. at ¶ 12.)
Mr. Alexander is the “spiritual leader” of JMGC. (Id. at ¶ 12.) Mr. Alexander compels
the members of JMGC to adopt the organization’s reincarnation doctrines and hierarchical
structure. (Id. at ¶¶ 12, 14.) Mr. Alexander claims to channel communications from higher
beings or master guides, which communications include instructions and beliefs that are binding
on the members of JMGC. (Id. at ¶ 13.)
JMGC lures people who are looking for spiritual direction and altruistic involvement by
initially promoting self-improvement and by engaging its members in discussions and providing
publications relating to broader contemporary topics such as history, economics, and spiritual
development. (Id. at ¶ 15.) When prospective members wish to advance their association with
JMGC and share details of their personal lives with Defendants, Defendants collectively engage
in a process designed to control, isolate, shame, emotionally harm, and take advantage of the
prospective members, which process is contrary to JMGC’s “self-improvement banner.” (Id. at ¶
16.)

Members who dissent or question the leadership’s directives become the targets of

“shaming conduct”—meaning that Defendants “collectively disseminate false information
coupled with outrageous accusations, in CoW communications, designed solely to cause
dissenting members substantial emotional and psychological trauma.” (Id. at ¶  17.) Dissenting
members are subjected to this “shaming conduct” until they recant their dissent or quit the
organization. (Id. at ¶ 19.)
As Plaintiff’s involvement in JMGC increased, Plaintiff had questions about
JMGC/CoW’s operations and beliefs. (Id. at ¶ 21) Defendants did not like Plaintiff’s inquiring
nature and resistance to questionable directions, and they collectively engaged in a campaign to

3 

discredit her, and to cause problems in her personal life and to her professional reputation. (Id. at
¶¶ 22, 23.) On one occasion, Plaintiff—who is a government contractor with a high-level
security clearance, having attended a CoW conference abroad asked Mrs. Alexander for the
name and sponsor of the conference so that she could provide that information on a United States
Government security clearance application as required by her employer. (Id. at ¶  24.) Mrs.
Alexander demanded that Plaintiff refrain from disclosing the fact that she had travelled overseas
to attend the CoW conference, and insisted that Plaintiff lie to the federal government about the
purpose of her travel under threat of “severe consequences” if she did not comply with this
directive. (Id. ¶ 25.) Plaintiff refused to comply with Mrs. Alexander’s directive to lie to the
federal government on the ground that any act of dishonesty or misconduct could compromise
her professional credentials and her job. (Id. ¶ 27) This notwithstanding, Mrs. Alexander
continued to urge Plaintiff to lie, and Plaintiff continued to refuse to do so. (Id.) In retaliation
for Plaintiff’s refusal to lie on her security clearance application, Defendants published
“Communication 17” (dated February 12-13, 2016) to its membership, stating that: “she
[Plaintiff] has a split who is a porn star and is seen doing sex acts with her husband. That is all
she does . . . the Hubbard Soul has been part of several sex cults, including the Manson cult.”
(Id. at ¶ 28 (italics omitted).)
In a further act of retaliation, Mr. Alexander began interfering with Plaintiff’s personal
relationship by urging her then fiancée (now husband) Ken Kyzer to break off his relationship
with Plaintiff because she was a destructive influence. (Doc. 15 at ¶ 29.) Defendant Kenneth
Alexander told Ken Kyzer that if he were going to be a committed partner associated with CoW,
he would have to end his relationship with Plaintiff. (Id.) Because Mr. Kyzer refused to end his
relationship with Plaintiff, Defendants terminated Plaintiff’s membership in JMGC/CoW,

4 

thereby prohibiting Plaintiff from reading Mr. Alexander’s channeled communications, and also
prohibiting her from attending Defendant’s conferences or events. (Doc. 15 at ¶ 30.)
Thereafter, (from February 25, 2016 through February 28, 2016) Defendants held a
JMGC/CoW conference in Santa Fe, New Mexico. (Id. at ¶ 31.) During this conference,
Defendants presented the following statements about Plaintiff to the membership of JMGC:
a.

Recently, we had to discontinue the access for one aspect of that soul
[Carol Hubbard]. And why is that? Because . . . they were very
predatory in this group.

b.

Sandra Otterson, another famous porn star, they do have a split in
your group, believe it or not, but they also have one that just left: Carol
Hubbard.

c.

The sexual predators you might think are fairly easy to spot because they
make you uncomfortable to be around, but they’re still there. And your
friend Carol Hubbard was a sexual predator, but she was also a
financial predator because she was poor. And you have many who
come in contact with this group thinking that this is where they will make
their riches.

d.

We don’t judge you over the fact that you have sexual desires or that you
want to have wealth. But if you’re using other people to get it in a way
that is inappropriate, you need to stop and think about how far you’re
going to get before we see what you’re doing. That is why Carol
Hubbard and Ken Kyzer are no longer in your group.

e.

So this guy who is, uh, previously a reader (Rob Murphy), just reactivated,
how long ago what that Deborah?
Deborah [Alexander]: Three days ago.
Three days ago. So we got right of the other one, Carol Hubbard, and
now we have this guy. Okay? So, they really want to be involved in
this work, but I don’t take them seriously any longer . . . But you’ve
got to understand just how messed up human psychology is, to see
how you can get such a diversity of expression in the human form.

f.

Why are we always so hard on the pornographers? Is it because they’re
predatory? In most cases, who makes all the money? It’s the
pornographer, it’s not the porn star.

5 

Well, these two, Nina Hartley and Sandra Otterson are a little smarter
because they took control of their own destiny and they are the ones
making the money . . . But they’re still predatory on people who cannot
express their sexuality in a normal functional manner.
g.

What’s happened recently with the Scribe’s split, Ken Kyzer, is an
example of how the 2nd ray not only got subverted, but got completely
kicked out. And what was it due to? I am going to be very blunt about it.
It was about sex and money.
In this group we have worked extremely hard to remove these as factors in
the group’s functioning. We have tried to keep predatory people out of
the group, either who are predatory sexually or monetarily. The
sexual predators you might think are fairly easy to spot because they
make you uncomfortable to be around, but they’re still there.
And your friend Carol Hubbard was a sexual predator, but she was
also a financial predator because she was poor.
And you have many who come in contact with this group thinking that this
is where they will make their riches . . .

h.

Sexual predation is very common. It’s a very common part of the 3rd ray
Psychoanthropology because 3rd rays tend to be very insensitive to others.
They seek ways of gaining control over others and whether it’s sex,
money or power, they’ll use one or more of these things to gain, uh,
the upper hand.
We have told the higher self of Carol Hubbard that if they want to
stay in the group, if they want to have a functioning member of the
group, there can be no sexual or financial predation going on.
The Scribe’s higher self needs to come forward and explain what it is they
did to cause the Carol Hubbard/Ken Kyzer problem from occurring in the
first place because they were largely responsible for that.
This group cannot exist with financial or sexual predators. You
cannot come into this group thinking, “Well, I need to get myself laid,” or
“I need to make a buck.”
If you happen to meet somebody in the group and you’re attracted to them
and you form a relationship, that’s perfectly fine.

6 

But if your sole purpose of being here is to have sex, you’re in the wrong
place. The same is true if you’re here to try to make money off of people
in the group. This is not the place to do it . . .
But what you have seen with Carol Hubbard and Ken Kyzer is a
perfect example of what we are trying to prevent in this group.
(Id. at ¶¶ 31, 35.) (Emphasis in original.)
The statements, which were made live at the Santa Fe conference before an audience of
more than 100 attendees in retaliation against Plaintiff and Mr. Kyzer, were, thereafter, edited,
transcribed, and published online on the JMGC/CoW website which is available to JMGC’s
worldwide membership. (Id. at ¶¶ 33, 34, 37.) Because Defendants had ousted Plaintiff from
JMGC, she was precluded from reading the transcribed texts. (Id. at ¶ 35.) The statements have
caused Plaintiff extreme embarrassment and emotional distress, and have caused third-parties,
friends and associates to avoid being associated with her out of fear of being associated with the
statements. (Doc. 15 at ¶¶ 40, 41.)
Defendants’ treatment of Plaintiff is consistent with their history and pattern of targeting
members, particularly females, who dissent or question their directives, with shaming conduct.
(Id. at ¶¶ 17, 19, 42-44.) Defendants have previously maligned dissenting females by publishing
statements labeling a well-respected former member of the United States Congress who was not
a CoW member, but founded an organization that CoW’s members are expected to volunteer for
and financially support, “as a madam at a bordello and a slave holder; and stating that another
such person was a black whore, who aided and[] otherwise[] contributed to Dr. Martin Luther
King, Jr.’s assassination.” (Id. at ¶ 44.)
Based on the foregoing allegations, Plaintiff seeks to recover damages on four theories of
liability: (1) Defamation and Defamation Per Se, (2) False Light Invasion of Privacy, (3)
Intentional Infliction of Emotional Distress, and (4) Civil Conspiracy. (Doc. 15 at 11-17.)
7 

Plaintiff also seeks to enjoin Defendants from permitting continued access to its membership to
the allegedly defamatory statements about her, to enjoin Defendants from publishing any further
defamatory comments about her, and an order compelling Defendants to redact Plaintiff’s and
Mr. Kyzer’s names from JMGC/CoW communications, transcripts, and publications. (Doc. 15
at 17.)

Defendants move to dismiss these claims on the ground that the at-issue beliefs and

communications are “religious” and, as such, Plaintiff’s claims, which arise from a purely
religious controversy, are barred by the “church autonomy doctrine”—an affirmative defense
grounded in the First Amendment to the Constitution. (Doc. 19 at 11-17.) Defendants argue, in
the alternative, that each of Plaintiff’s claims should be dismissed on the merits for failure to
state a claim upon which relief can be granted. (Id. at 17-29.) For the reasons discussed herein,
the Court concludes that Plaintiff’s claims are barred by the First Amendment.

Because

Plaintiff’s claims are dismissed on First Amendment grounds, the Court does not consider
Defendants’ alternative arguments.
ANALYSIS
I.

The Standards Governing a Motion to Dismiss

Federal Rule of Civil Procedure 12(b)(6) authorizes a court to dismiss a complaint for
“failure to state a claim upon which relief can be granted.” In deciding a motion to dismiss
under Rule 12(b)(6), the Court must determine whether the plaintiff's complaint “contain[s]
sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). In undertaking this analysis, the Court considers “the complaint as a whole, along
with the documents incorporated by reference into the complaint,” construes all well-pled
allegations in the light most favorable to the plaintiff. Nakkhumpun v. Taylor, 782 F.3d 1142,

8 

1146 (10th Cir. 2015). “Well-pled” means that the allegations are “plausible, non-conclusory,
and non-speculative.” Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1070 (10th
Cir. 2008). “Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. Courts “disregard conclusory
statements and look only to whether the remaining . . . factual allegations plausibly suggest the
defendant is liable.” Mocek v. City of Albuquerque, 813 F.3d 912, 921 (10th Cir. 2015).
II.

In the Context of This Case the Court Shall Treat the “Church Autonomy
Doctrine” as an Affirmative Defense
It is a longstanding principle of law that secular courts have no jurisdiction over matters

that are “strictly and purely ecclesiastical.” Watson v. Jones, 80 U.S. 679, 733 (1871). This
principle, which is rooted in the fundamental right of religious freedom, acknowledges that by
voluntarily joining a religious association which is engaged in the expression and dissemination
of any religious doctrine, a person impliedly consents to be governed, in ecclesiastical matters,
by the religious organization’s “organic laws, their books of discipline, . . . their collections of
precedents, . . . [and] their usage and customs[.]” Id. at 729. Because the religious organization,
itself, is the best judge of “what constitutes an offence against the word of God and the discipline
of the church[,]” the organization retains exclusive control over matters concerning “theological
controversy, church discipline, ecclesiastical government, or the conformity of the members of
the church to the standard of morals required of them[.]” Id. at 732-33. For a secular court to
intervene in such matters by permitting individuals aggrieved by the religious organization’s
ecclesiastical administration to adjudicate such matters in civil court would be to subvert the
inherent right of religious bodies to exercise religious freedom. Id. at 729.

9 

The foregoing principles originally grounded in common law,5 have long since been tied
to the religion clauses of the First Amendment to the Constitution, which prohibit Congress from
making any “law respecting an establishment of religion, or prohibiting the free exercise
thereof[.]” See Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in N. Am., 344
U.S. 94, 116 (1952) (recognizing that the freedom accorded to religious organizations from
secular control or manipulation is grounded in the First Amendment); see Kreshik v. St. Nicholas
Cathedral, 363 U.S. 190, 191 (1960) (holding that the religion clauses of the First Amendment
apply to the judiciary as well as to the legislature). In a body of law commonly known as the
“church autonomy doctrine” or the “ecclesiastical abstention doctrine” the Supreme Court has
adhered to the principle, originally established in Watson, that secular courts should abstain from
adjudicating, and indeed have no jurisdiction over, matters that are fundamentally ecclesiastical
or religious in nature.

See Serbian E. Orthodox Diocese for the U.S. of Am. & Can. v.

Milivojevich, 426 U.S. 696, 709-10 (1976) (recognizing, consistent with Watson, that the
resolution of religious disputes is the purview of ecclesiastical, not civil, tribunals); HosannaTabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 565 U.S. 171, 185-86 (2012) (quoting
Kedroff for the proposition that Watson “radiates a spirit of freedom for religious organizations,
an independence from secular control or manipulation—in short, power to decide for themselves,
free from state interference, matters of church government as well as those of faith and doctrine.”
(alteration omitted)).

5

Watson, a diversity case, was decided before the First Amendment had been rendered applicable to the States
through the Fourteenth Amendment, and was, therefore, grounded in common law instead of the Constitution of the
United States. However, cases decided after the Fourteenth Amendment to the United States Constitution have
recognized that the principle established in Watson accords with the religion clauses of the First Amendment and
“have a clear constitutional ring.” Serbian E. Orthodox Diocese for U. S. of Am. & Canada v. Milivojevich, 426 U.S.
696, 709-11 (1976). Thus, the Supreme Court has continued to rely on the reasoning of, and the holding in, Watson
insofar as it pertains to the question of civil court’s involvement in ecclesiastical issues. Id. at 710; see HosannaTabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 565 U.S. 171, 185-87 (2012) (discussing, and not
contravening, Watson and its progeny).

10 

After passage of the Civil Rights Act of 1964, courts recognized the existence of a
“ministerial exception” which, like the far older church autonomy doctrine, is grounded in the
First Amendment. Hosanna-Tabor, 565 U.S. at 188. The ministerial exception is a narrow
subcategory of the church autonomy doctrine that “precludes application of [employment
discrimination laws] to claims concerning the employment relationship between a religious
institution and its ministers.” Hosanna–Tabor, 565 U.S. at 188; see id. at 194-95 (“The
[ministerial] exception ... ensures that the authority to select and control who will minister to the
faithful—a matter strictly ecclesiastical—is the church's alone.” (Citation omitted.)); Skrzypczak
v. Roman Catholic Diocese of Tulsa, 611 F.3d 1238, 1242 n.4 (“Out of [the] broad prohibition
[of the church autonomy doctrine], the courts have carved a narrower ministerial exception . . .
that prevents adjudication of Title VII employment discrimination cases brought by ministers
against churches.”).
Over time, courts applying the church autonomy/ecclesiastical abstention doctrine
(hereinafter “the church autonomy doctrine”) and the ministerial exception have taken
inconsistent stances in regard to their procedural operation—pertaining particularly to the issue
whether either or both constitute an affirmative defense as distinct from a jurisdictional bar. The
Supreme Court, observing in Hosanna-Tabor (an employment discrimination case), the existence
of a “conflict” among the Courts of Appeals over whether the ministerial exception is a
jurisdictional bar or a defense on the merits resolved the issue by concluding that the ministerial
exception “is an affirmative defense to an otherwise cognizable claim, not a jurisdictional bar.”
Hosanna-Tabor, 565 U.S. at 195 n.4. This, the Supreme Court reasoned, “is because the issue
presented by the exception is whether the allegations the plaintiff makes entitle him to relief, not
whether the court has the power to hear the case.” Id. While Hosanna-Tabor unquestionably

11 

confirmed that the ministerial exception is an affirmative defense, courts continue to take
opposing positions on the issue of whether the broader, and far older church autonomy doctrine
operates as an affirmative defense or a jurisdictional bar.
On one hand, several courts continue to rely on Watson and Milivojevich (which were
discussed approvingly in Hosanna-Tabor) for the proposition that the church autonomy doctrine
precludes a court’s subject matter jurisdiction over ecclesiastical matters. See e.g., Doe v. First
Presbyterian Church of USA of Tulsa, 2017 OK 106, ¶¶ 8-9, __ P.3d __ (Okla. 2017)
(distinguishing the relatively new ministerial exception from the “far older” church autonomy
doctrine; and concluding that Hosanna-Tabor only stands for the proposition that the ministerial
exception is an affirmative defense, whereas the 1871 Supreme Court decision in Watson, in
which the church autonomy doctrine was first recognized continues to stand for the proposition
that it is a jurisdictional bar); Church of God in Christ, Inc. v. L.M. Haley Ministries, Inc., 531
S.W.3d 146, 157-59 (Tenn. 2017) (noting that “the Supreme Court did not address the
ecclesiastical abstention doctrine in Hosanna-Tabor” and concluding, based upon Watson and its
progeny, that where it is applicable, the doctrine operates as a jurisdictional bar); Bilbrey v.
Myers, 91 So.3d 887, 890-91 (Fla. Dist. Ct. App. 2012) (holding that the church autonomy
doctrine operates to bar subject matter jurisdiction over tort claims against religious institutions).
These Courts take the position that the church autonomy doctrine and the ministerial exception
are distinct concepts and, under Watson and its progeny, the church autonomy doctrine
constitutes a jurisdictional bar, whereas pursuant to Hosanna-Tabor the ministerial exception is
an affirmative defense.
On the other hand, some courts—including of relevance here, the Tenth Circuit Court of
Appeals and the New Mexico Court of Appeals, have long held that the church autonomy

12 

doctrine is an affirmative defense. See Bryce v. Episcopal Church in the Diocese of Colo., 289
F.3d 648, 654 (10th Cir. 2002) (holding, prior to the Hosanna-Tabor decision, that the church
autonomy “defense” is “more appropriately considered as a challenge to the sufficiency of
plaintiff’s claims under Rule 12(b)(6)” than a challenge to the court’s subject matter jurisdiction
pursuant to Rule 12(b)(1); Celnik v. Congregation B'Nai Israel, 131 P.3d 102, 105 (N.M. Ct.
App. 2006) (relying on Bryce for the proposition that “a claim of constitutional immunity based
on the church autonomy doctrine should be treated in the first instance as a motion [motion to
dismiss for failure to state a claim instead of a motion to dismiss for lack of subject matter
jurisdiction] because the court does in fact have jurisdiction to consider the constitutional
claim.”). The Supreme Court’s decision in Hosanna-Tabor, which discusses Watson and its
progeny approvingly, yet cites Bryce—in which the Tenth Circuit considered the application of
the church autonomy doctrine in observing a circuit split on the question of whether the
ministerial exception is an affirmative defense, does nothing to clarify the matter. HosannaTabor, 565 U.S. at 185-87, 195 n.4; Bryce, 289 F.3d at 653-54 (considering whether the church
autonomy doctrine was an affirmative defense to, or jurisdictionally barred, the plaintiff’s Title
VII, and related claims against the church that formerly employed her).
Considering the foregoing, it would be reasonable to conclude under the particular
circumstances of this case—in which Plaintiff’s claims do not arise out of an employment
dispute, but are premised instead on Mr. Alexander’s communications, channeled or otherwise,
presented to the members of JMGC/CoW about the state of Plaintiff’s soul—that Defendant’s
church autonomy doctrine argument actually challenges this Court’s jurisdiction in the manner of
Watson and its progeny. See Fed. R. Civ. P. 12(h)(3) (permitting the Court to dismiss an action
at any time on the ground that it lacks subject matter jurisdiction over the matter). Nevertheless,

13 

insofar as it is reasonable to assume (if not decide) that the Supreme Court’s citation to Bryce in
footnote 4 of the Hosanna-Tabor decision reflects the Supreme Court’s implicit determination
the Tenth Circuit has correctly determined that the church autonomy doctrine, like the ministerial
exception, operates as an affirmative defense; and considering that the Defendants have raised
and briefed this issue in a motion to dismiss under Rule 12(b)(6), the Court shall analyze the
matter accordingly.
III.

Standards Governing a Motion to Dismiss Based Upon an Affirmative Defense

“Under Rule 12(b) . . . , a defendant may raise an affirmative defense by a motion to dismiss
for the failure to state a claim.” Miller v. Shell Oil Co., 345 F.2d 891, 893 (10th Cir. 1965). “If
the defense appears plainly on the face of the complaint itself, the motion may be disposed of
under this rule.” Id. “But that is only when the complaint itself admits all the elements of the
affirmative defense by alleging the factual basis for those elements.” Fernandez v. Clean House,
LLC, 883 F.3d 1296, 1299 (10th Cir. 2018). In other words, only when the “plaintiff pleads
itself out of court by admitting all of the ingredients of an impenetrable defense” may a
complaint that otherwise states a claim be dismissed under Rule 12(b)(6). Fernandez, 883 F.3d
at 1299 (quoting Xechem, Inc. v. Bristol-Myers Squibb Co., 372 F.3d 899, 9010 (7th Cir. 2004).
IV.

Plaintiff’s Complaint Admits the Ingredients of a First Amendment-Based
Affirmative Defense

1. The Allegations in the Complaint Establish that Defendants’ Beliefs are “Religious”
for First Amendment purposes
“Although the Supreme Court has done little to identify positively what ‘religion’ is for First
Amendment purposes, it has done a slightly better job of providing guidelines that courts should
follow when attempting to determine whether a set of beliefs is ‘religious.’” United States v.
Meyers, 906 F. Supp. 1494, 1500 (D. Wyo. 1995), aff'd, 95 F.3d 1475 (10th Cir. 1996).

14 

Religious belief does not necessarily entail a belief in God. Kalka v. Hawk, 215 F.3d 90, 98
(D.C. Cir. 2000) (citing Torcaso v. Watkins, 367 U.S. 488, 495, n.11, (1961)). “[R]eligious
beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit
First Amendment protection.” Thomas v. Review Bd. of the Indiana Employment Sec. Div., 450
U.S. 707, 714 (1981). And courts may not consider whether the party’s purportedly religious
beliefs are true or false. Meyers, 906 F. Supp. At 1500 (citing United States v. Ballard, 322 U.S.
78, 92, (1944)).
In Meyers, where the issue was whether the “Church of Marijuana” was a bona fide religion
that triggered the protections of the Religious Freedom Restoration Act (“RFRA”), the court
compiled a list of factors that may inform the question whether a set of beliefs is “religious” for
First Amendment purposes. See Meyers, 906 F. Supp. at 1495, 1501-03. Canvassing cases on
religion6 to discern indicia of religion, the Meyers court concluded that religious beliefs are
characterized by:

ultimate ideas, metaphysical beliefs, moral or ethical system,

comprehensiveness of beliefs, and accoutrements of religion; i.e., founder, prophet, teacher;
important writings; gathering places; ceremonies and rituals; structure or organization; holidays;
diet or fasting; appearance and clothing; and propagation. Id. at 1502-03. However, the court
emphasized that no one of these factors was dispositive; instead, they should be viewed as

6

The Meyers court gleaned many of the factors from the following cases: Africa v. Commonwealth, 662 F.2d 1025
(3d Cir. 1981); Malnak v. Yogi, 592 F.2d 197 (3d Cir. 1979); United States v. Sun Myung Moon, 718 F.2d 1210 (2d
Cir. 1983); Founding Church of Scientology of Washington v. United States, 409 F.2d 1146 (D.C. Cir. 1969);
Washington Ethical Soc’y v. District of Columbia, 249 F.2d 127 (D.C. Cir. 1957); United States v. Kauten, 133 F.2d
703 (2d Cir. 1943); Sherr v. Northport-East Northport Union Free School Dist., 672 F. Supp. 81 (E.D.N.Y. 1987);
Jacques v. Hilton, 569 F. Supp. 730 (D.N.J. 1983); Church of Chosen People v United States, 548 F. Supp. 1247 (D.
Minn. 1982); Womens Services, P.C. v. Thone, 483 F. Supp. 1022 (D. Neb. 1979), aff’d, 636 F.2d 206 (8th Cir.
1980); Stevens v. Berger, 428 F. Supp. 896 (E.D.N.Y. 1977); Remmers v. Brewer, 361 F. Supp. 537 (S.D. Iowa
1973); United States v. Kuch, 288 F. Supp. 439 (D.D.C. 1968); Fellowship of Humanity v. County of Alameda, 153
CalApp.2d 673, 315 P.2d 394 (1957); and W. Van Alstyne, First Amendment 1053 (2d ed. 1995). U.S. v. Meyers,
906 F. Supp. 1494, 1503, n. 9 (D. Wyo. 1995).

15 

criteria that, if minimally satisfied, permit a conclusion that a set of beliefs qualifies as a
“religion.” Id. at 1503 (citing Malnak v. Yogi, 592 F.2d 197, 210 (3d Cir. 1979)).
The parties take contradicting positions on the question whether the allegations in the
Complaint demonstrate that Defendants’ beliefs are “religious” for First Amendment purposes.
(Doc. 19 at 5-9; Doc. 32 at 2-3.) Defendants argue that the allegations in Plaintiff’s Complaint
demonstrate that Defendants’ beliefs are “religious” as that term is defined in Meyers because:
the members of JMGC are compelled by the “spiritual leader” (Mr. Alexander) to adopt the
organization’s reincarnation doctrines; the organization believes in, and is bound by, channeled
communications from higher beings and master guides; the organization’s beliefs include moral
and ethical standards—as exemplified by the fact that it provides discussions and publications on
the topic of spiritual development, and works toward eliminating sexual and financial predation
in its membership; and the messages and beliefs are conveyed to the organization’s membership
in writing and at seminars and conferences. While Plaintiff argues that she has not alleged that
JMGC is a “religious organization” nor has she alleged that the channeled communications
constitute a “religious belief[,]” she does not refute the contention that the facts alleged in the
Complaint exemplify several indicia of religion as set forth in Meyers.

(Doc. 32 at 3.)

Specifically, the allegations in the Complaint demonstrate that Defendants have metaphysical
beliefs (i.e., reincarnation and belief that past lives influence peoples’ current lives and life
decisions7, channeled communications from master guides and higher beings that are binding on
the membership,8 a belief in souls and aspects of souls9), a “founder” or “teacher” (Mr.
Alexander as spiritual leader, receiver of channeled communications and “Scribe”10), a moral

7

Doc. 15, ¶¶ 11, 12, 14.
Id., ¶¶ 13, 30.
9
Id., ¶¶ 28, 31.
10
Id., ¶¶ 12, 13, 31.  
8

16 

system that includes instructions and beliefs that are binding on its members (promoting selfimprovement, altruistic involvement and spiritual development, decrying predatory aspects of
souls, distinguishing acceptable sexual and financial desires from inappropriate sexual and
financial “predation”, prohibiting members from engaging with “’destructive’ influence”11),
important writings (develops written materials to promote its reincarnation-based doctrines,
worldview, and advocacy agenda to its members and to those interested in engaging with its
programs, transcribes channeled communications presented at member conferences and
published

online

to

its

membership12),

gatherings

(“Companions

of

Wisdom”

conferences/seminars13), and an organizational structure (closed, invitation only, nonprofit
organization with worldwide membership and “authoritarian” “hierarchical structure that does
not permit dissent or questions regarding its doctrines or leadership” and disciplines dissenting
members14). See Meyers, 906 F. Supp. at 1502 (“Religious beliefs often are ‘metaphysical,’ that
is, they address a reality which transcends the physical and immediately apparent world.”);
Jacques v. Hilton, 569 F. Supp. 730, 733 (“Generally speaking, religious beliefs flow out of, and
embody a sense of a relationship to a supreme being or supernatural force which gives rise to
‘duties superior to those arising from any human relation.’”). In light of these allegations, it is of
little consequence to the Court’s analysis here that the Complaint is devoid of a conclusory
allegation that the organization is a religion or that its beliefs are religious. See generally,
Mocek, 813 F.3d 912, 921 (stating that Courts disregard conclusory statements provided in a
complaint and rely, instead, on factual allegations); Malnak v. Yogi, 440 F.Supp 1284, 1319-20
(D. N.J. 1977) (rejecting the notion a litigant’s subjective characterization of beliefs or practices

11

Id., ¶¶ 13, 15, 29, 31, 35, 36, 43, 44.
Id., ¶¶ 11, 15, 18, 30, 31.
13
Id., ¶¶ 11, 18, 20, 21, 24, 30, 31, 34.
14
Id., ¶¶ 11, 12, 19, 20, 21, 22, 23, 25, 26, 28, 37. 
12

17 

as religious or not religious informs the question whether the beliefs and practices are religious
as a matter of law under the First Amendment).
Consistent with the admonition in Meyers that “no one . . . factor[] is dispositive, and that
the factors should be seen as criteria that, if minimally satisfied, counsel the inclusion of beliefs
within the term ‘religion[,]’” the Court concludes that the allegations in the Complaint establish
that Defendants’ beliefs—which, objectively speaking, are not secular—are “religious” for First
Amendment purposes. Meyers, 906 F. Supp. at 1503; see id. at 1503-04 (noting that under the
factors, even “obscure beliefs” including, for example Animism, Wicca, Druidism, Santeria, and
what is, in the present day, called “mythology” would all likely qualify as “religion”; whereas
beliefs that are “[p]urely personal, political, ideological or secular[,]” such as nihilism, socialism,
Marxism, and humanism, would not so qualify). By extension, JMGC/CoW, an organization
that exists to promote its reincarnation-based spiritual doctrine and whose membership is
required to adhere to its “religious” precepts, is entitled to First Amendment protections against
tort claims on par with churches and other religious organizations. That is, in the limited context
of this case, and based upon the factual allegations in the Complaint, JMGC/CoW retains
exclusive control, protected by the First Amendment, over matters concerning “theological
controversy, church discipline, ecclesiastical government, or the conformity of the members of
the church to the standard of morals required of them.” Watson, 80 U.S. at 733; Kedroff, 344
U.S. at 116 (recognizing that the freedom accorded to religious organizations from secular
control or manipulation is grounded in the First Amendment).
Although the Court concludes that Defendants’ beliefs and practices are “religious” under the
First Amendment, the Court’s inquiry does not end there. While it is clear that “religious
controversies” and “matters of faith, doctrine, church governance and polity” are not the proper

18 

subject of civil court inquiry,” Milivojevich, 426 U.S. at 713, Bryce, 289 F.3d at 655, not every
civil court dispute involving a religious organization requires the court to resolve ecclesiastical
questions. Presbyterian Church in the U.S. v. Mary Elizabeth Blue Hull Mem’l Presbyterian
Church, 393 U.S. 440, 449-50 (1969). Of course, “[w]hen the imposition of liability would
result in the abridgement of the right to free exercise of religious beliefs, recovery in tort is
barred.” Paul v. Watchtower Bible & Tract Soc. of N.Y., Inc., 819 F.2d 875, 880 (9th Cir. 1987).
However, a civil court does not run afoul of the First Amendment by applying neutral principles
of law to resolve such disputes. Presbyterian Church in U.S., 393 U.S. at 449 (recognizing that
“not every civil court decision as to property claimed by a religious organization jeopardizes
values protected by the First Amendment”; and “[c]ivil courts to not inhibit the free exercise of
religion merely by opening their doors to disputes involving church property” and applying
neutral principles of law, developed for use in all property disputes).
In other words, if a dispute involving a religious organization can be resolved by application
of neutral principles of law, and does not require the court to become entangled in questions of
religious doctrine, polity, and practice, the First Amendment—and by extension, the church
autonomy doctrine—does not bar the litigation. Jones v. Wolf, 443 U.S. 595, 602-03 (1979)
(discussing the “neutral-principles approach” as “completely secular in operation, and yet
flexible enough to accommodate all forms of religious organization and polity” in the context of
a church property dispute); Milivojevich, 426 U.S. at 710 (recognizing that if civil courts
undertake to resolve controversies involving religious organizations, it must be done “without
resolving underlying controversies” involving religious doctrine and practice). Correspondingly,
if the claims are “rooted in religious belief,” the religion clauses of the First Amendment prohibit
civil court interference. Wisconsin v. Yoder, 406 U.S. 205, 215 (1972). Thus, the crux of the

19 

issue raised by Defendant’s motion is whether it is evident from the face of Plaintiff’s complaint
that the Court may adjudicate Plaintiff’s claims by applying neutral principles of law without
becoming entangled in matters of a religious nature.
2. Analysis of Plaintiff’s Claims
Broadly speaking, Plaintiff seeks damages arising from two forms of allegedly tortious
conduct: Defendants’ statements about the nature of Plaintiff’s soul, which were disseminated to
the membership of JMGC/CoW; and Defendants’ efforts to ostracize her from the organization
and its members, including her then-fiancée, now husband, Mr. Kyzer. Plaintiff claims that this
is purely a secular dispute that can be resolved through the application of neutral principles of
law without “doctrinal or organizational entanglement.” (Doc. 32 at 3.) The Court does not
agree.
a. General Principles Relevant to Plaintiff’s Particular Theories of Recovery
Support Dismissal of Plaintiff’s Claims on First Amendment Grounds
As an initial observation, there is no bright line legal proposition that governs the question
whether tort claims brought by current or former members of religious organizations that defame
or ostracize them are barred by the First Amendment. And a review of the case law reveals that
decisions are driven by the nuances underlying the particular claims. For example, in the
defamation context, the Supreme Court of Iowa rejected a First Amendment defense to a claim
of defamation arising out of a letter disseminated to members of the general public by a church
minister describing the plaintiff as the “spirit of Satan.” Kliebenstein v. Iowa Conference of
United Methodist Church, 663 N.W.2d 404, 405-07 (Iowa 2003). The court reasoned that
although the phrase “spirit of Satan,” clearly conveys sectarian meaning, it also carries a secular
meaning and could, therefore effect the secular public’s impression of the plaintiff’s character.
Id.

Conversely, the Iowa Court of Appeals held that a defamation claim based on church
20 

officials having stated that the plaintiff “lied,” that he was “in league with Satan” and that he had
been “sleeping around” was barred by the First Amendment since these comments arose out of
an underlying dispute between the plaintiff and his church and, unlike the Kliebenstein case, the
comments were presented only to church members.

Howard v. Covenant Apostolic Church,

Inc., 705 N.E.2d 385, 388-89 (Iowa Ct. App. 1997). The coexistence of Kliebenstein and
Howard as governing law within the same judicial jurisdiction illustrate the importance of
context and of subtle distinctions in the context of the First Amendment defense to tort claims
against “religious” institutions. With that in mind, the Court, having reviewed a number of cases
from courts in several jurisdictions, has derived some general principles that usefully inform its
analysis of Defendant’s First Amendment defense in the context of this case.
The first principle is that courts generally do not permit tort claims arising from internal
processes by which religious organizations discipline their members or determine whether a
person’s character renders her suitable for continued membership or participation in the
organization. This is so even where the conduct underlying the tort claim would be actionable in
another context.
For example, the Minnesota Court of Appeals held that a couples’ claim for defamation
against their former pastor who had read a letter to the entire congregation of his church setting
out the reasons for terminating the couple’s membership was barred by the First Amendment
even as to statements that were ostensibly unrelated to church doctrine. Schoenhals v. Mains,
504 N.W.2d 233, 234-36 (Minn. Ct. App. 1993). The letter related that the couple’s church
membership was being terminated for:
1. A lack of financial stewardship with consistency and faithful tithing and
offering over a given period of time.
2. A desire on your part to consistently create division, animosity and strife in the
fellowship.
21 

3. Direct fabrication of lies with the intent to hurt the reputation and the
establishment of Faith Tabernacle of Truth Church and congregation.
4. Backbiting, railing accusations, division, lying, are some of the most serious
sins found in the Bible. Where, by all appearances and related conversations, you
have fallen into all of the categories.
Id. at 234. As to some of these allegedly defamatory statements—i.e. those related to the
couple’s faithfulness to the church, the court reasoned that a jury could not decide their truth or
falsity without impermissibly inquiring into the church’s doctrines. Id. at 236. Further, the court
reasoned, although the issue whether the couple
had engaged in ‘direct fabrication of lies with intent to hurt the reputation and the
establishment’ of the church appears unrelated to the church doctrine on its face,
the statement nevertheless relates to the [c]hurch’s reasons and motives for
terminating the [couples’] membership. Examination of those reasons and
motives would also require an impermissible inquiry into [c]hurch disciplinary
matters. The couples’ claim clearly involves an internal conflict within the
church, which is precluded by the First Amendment.
Id. at 236 (emphasis added).
Likewise in Downs v. Roman Catholic Archbishop of Baltimore, 683 A.2d 808 (Md. Ct.
Spec. App. 1996), an action for defamation against a church and several members of the church
hierarchy brought by a plaintiff who had formerly aspired to Priesthood was barred by the First
Amendment. The plaintiff claimed that certain members of the church hierarchy had made
defamatory statements concerning his honesty, reliability, integrity, morality, and had also made
assertions of “sexually motivated conduct toward certain staff members” of a Parish; with the
intention, and with the effect of, preventing him from becoming a priest. Id. at 809-10, 813.
Although the plaintiff argued that the First Amendment did not bar his claims because the case
was “simply one of defamation” and he was not seeking judicial review of any decision made by
the church, the court reasoned that the matter was essentially an ecclesiastical controversy barred
by the First Amendment. Id. at 810-11. Noting that the defamatory statements were allegedly

22 

made “with the intent to harm the [p]laintiff’s chances for ordination to the priesthood[,]” the
court reasoned that “the very heart of the action is a decision by . . . clerical supervisors to
prevent [the plaintiff] from becoming a priest.”

Id. at 813. Thus, the court reasoned, “[e]ven

where the dispute actually presented to the court is one that, if presented by any other set of
litigants, would clearly be justiciable” insofar as the plaintiff’s defamation claim was intertwined
with the church’s determination that the plaintiff was not a suitable candidate for priesthood, the
matter is not within the court’s authority. Id.  
As another example, in C.L. Westbrook, Jr. v. Penley, 231 S.W.3d 389 (Tex. 2007), the
Supreme Court of Texas concluded that the First Amendment barred tort claims brought by a
former member of a church against the church’s pastor (who was also a professional counselor)
and other church officials after they disseminated a letter to the church congregation revealed
confidential information gleaned by the pastor during counseling sessions. Id. at 393. Among
other things, the letter informed the congregation that the plaintiff intended to divorce her
husband and that she had engaged in a “‘biblically inappropriate’ relationship with another man,”
and it encouraged the congregation to “break fellowship” with her. Id. The fact that the plaintiff
had engaged in an extramarital sexual affair was something that the plaintiff had disclosed to the
pastor in the context of marital counseling sessions. Id. In a lawsuit arising out of these events,
the plaintiff claimed defamation, professional negligence, breach of fiduciary duty, and
intentional infliction of emotional distress. Id. at 394, 399.
In an effort to overcome the defendants’ First Amendment defense, the plaintiff (Penley)
argued that her professional negligence claim could be resolved by neutral principles of tort law
because her lawsuit centered on the pastor’s disclosure of confidential information that he had
learned during marital counseling sessions and, as such, the controversy did “not involve matters

23 

of religious doctrine, practice or church governance.” Id. at 400.

The court rejected this

argument. Id. The court reasoned that although Penley’s theory of tort liability was based, in
part, on the pastor’s breach of a secular duty of non-disclosure of confidential information, “this
disclosure cannot be isolated from the church-disciplinary process in which it occurred, nor
[could the pastor’s] free-exercise challenge be answered without examining what effect the
imposition of damages would have on the inherently religious function of church discipline.” Id.
In other words, although “it might be theoretically true that a court could decide whether [the
pastor/counselor] breached a secular duty of confidentiality without having to resolve a
theological question,” insofar as the claim was inherently tied to the church’s process of
expelling the plaintiff’s membership, the court could not do so without “unconstitutionally
imped[ing] the church’s authority to manage its own affairs.” Id. at 397-98.
A final example, mentioned earlier, is the Iowa Court of Appeals’ decision in Howard.
There, the court held that a defamation claim premised on church members or officials having
stated that the plaintiff “had lied, that he was in league with Satan, . . . and that he had been
sleeping around” was barred by the First Amendment because the statements arose out of an
underlying dispute between him and the church as part of an effort to remove his church
membership and were made during a church meeting. Howard, 705 N.E.2d at 388-89.
A second principle relevant to the facts and circumstances here, is that the First
Amendment bars tort claims that arise from circumstances in which a plaintiff has been
ostracized from a religious community—a practice known, formally in some religions, as
“shunning.” See Paul, 819 F.2d at 876-77 (recognizing that “shunning” is a form of ostracism
that purportedly has its roots in early Christianity, and which is practiced by various religious
groups, including the Amish, Mennonites, and Jehovah’s Witnesses). In these cases, too, courts

24 

have concluded that even where the religious organization engages in conduct that, in other
circumstances could be actionable under tort law, the First Amendment does not permit judicial
interference in what are, essentially, ecclesiastical disputes concerning membership in religious
organizations.
For example, the Ninth Circuit Court of Appeals concluded, in Paul, that to allow a
plaintiff to pursue tort claims against a religious organization based on shunning practices would
effectively abridge the free exercise of religion guaranteed by the First Amendment.15 819 F.3d
at 880. The plaintiff in Paul, a former member of the Jehovah’s Witnesses, having been told by
a close childhood friend: “I can’t speak to you. You are disfellowshipped.”; having received
similar treatment from other friends; and having been ostracized at a tupperware party at the
home of a Jehovah’s witness because “the Elders” had instructed members of the faith not to
speak to her, filed tort claims against the corporate arms of the Governing Body of Jehovah’s
Witnesses. Id. at 876-77. In her lawsuit, the plaintiff claimed that defendants had engaged in
intentional conduct causing emotional distress, intentional conduct causing alienation of
affections, and intentional conduct causing harm to reputation. Id. at 879. In affirming the
dismissal of plaintiff’s lawsuit, the Paul court concluded that the imposition of tort damages on
the Jehovah’s Witnesses for engaging in the religious practice of shunning would essentially
criminalize and force the church to forego the practice, thereby imposing a direct burden on
religion. Id. at 880-81 (citing Langford v. United States, 101 U.S. 341, 345 (1879) for the
proposition that “the very essence of a tort is that it is an unlawful act” (alteration omitted)).

15

Notably, the Ninth Circuit did not consider the “ecclesiastical abstention doctrine” relevant to the issue whether
the First Amendment barred tort claims arising out of the religious practice of shunning. Paul, 819 F.2d 875, 878
n.1. In that regard, the court noted that the plaintiff “seeks relief for the harms she has suffered as a result of
conduct engaged in by the Jehovah’s Witnesses that is presumably consistent with the governing law of the
Church.” Id. As such, the issue was not governed by the ecclesiastical abstention doctrine which prohibits courts
from adjudicating a church’s decision relating to government of the religious polity. Id. Accordingly, the court
decided the matter by application of the free exercise clause of the First Amendment.

25 

In another case involving “disfellowship” or “shunning,” the Supreme Court of Alaska
concluded that the First Amendment barred a plaintiff’s claims of negligent infliction of
emotional distress, intentional infliction of emotional distress, and defamation, among others.
Sands v. Living Word Fellowship, 34 P.3d 955, 956, 959 (Alaska 2001). In Sands, the plaintiff
shot himself in an attempted suicide after a church (Living Word) and two of its members (the
parents of the plaintiff’s girlfriend), instructed the congregants of Living Word as well as the
congregants of eight other churches to “shun” the members of Wasilla Ministries—the church to
which the plaintiff belonged. Id. at 957. Among other things, the defendants said that Wasilla
Ministries was a cult, and that the plaintiff was a “cult recruiter.” Id.

Underlying this feud was

a disagreement on parental authority—apparently related to the relationship between the plaintiff
and his girlfriend, and biblical interpretation.

Id. Two local newspapers published the

defendants’ allegations against Wasilla Ministries. Id.

These events caused the plaintiff great

emotional distress and led him to attempt suicide which attempt, though unsuccessful, rendered
him paralyzed from the chest down. Id.
The Sands court reasoned that the defendants’ “shunning” directive to its congregation
and that of eight other churches was religiously based, and was motivated by religion. Id. at 959.
Likewise, the court reasoned that defendant’s statements that the plaintiff was a cult recruiter,
and the church of which he was a member was a cult were statements reflecting religious beliefs
and opinions. Id. at 960. Because the plaintiff’s claims arose out of an essentially religious
dispute, the Sands court accordingly concluded that the claims were barred by the First
Amendment. Id. at 959-60.
A third principle relevant to the claims at issue here is a recognition by some courts of a
distinct legal effect between circumstances in which defamatory comments are published

26 

exclusively to the members of a religious organization and circumstances in which the comments
are published, as well, to the general community. See e.g., Schoenhals, 504 N.W.2d at 236
(reasoning that the fact that the defamatory letter was disseminated only to other members of the
Church strengthens the conclusion that the defamation claim arose from and was limited to an
internal conflict within the Church and is thus barred by the First Amendment”); compare
Kliebenstein, 663 N.W.2d at 406-07 (holding that the fact that a minister’s letter describing the
plaintiff as the “spirit of Satan” was disseminated to members of the community who were not
affiliated with the church “weakens [the] ecclesiastical shield” because the protections afforded
in this context “may be lost upon proof of excess publication or publication ‘beyond the group
interest’”)), with Howard, 705 N.E.2d at 388-89 (holding that a defamation claim premised on
church members or officials having stated that the plaintiff “had lied, that he was in league with
Satan, . . . and that he had been sleeping around” was barred by the First Amendment because the
statements arose out of an underlying dispute between him and the church as part of an effort to
remove his church membership and were made during a church meeting); but see Sands, 34 P.3d
at 957 (barring the plaintiff’s defamation claim on First Amendment grounds without discussing
the fact that the alleged defamatory statements were reported in two local newspapers).
Applying the foregoing principles to the circumstances here, the Court concludes that the
First Amendment bars Plaintiff’s claims. As alleged in the Complaint, the conduct giving rise to
Plaintiff’s claims originally stemmed from an internal dispute between Plaintiff and the
leadership of JMGC prompted by Plaintiff’s “inquiring nature” and her “resistance” to the
directives of the leadership. It is evident from the face of the Complaint, however, that JMGC is
an authoritarian organization that does not permit dissent or questions regarding its doctrines or
leadership. Thus, when she dissented from and questioned the leadership’s directives, Plaintiff

27 

flouted the standards of conformity required of JMGC’s membership—standards that Plaintiff
impliedly assented to be governed by when she joined the organization’s membership nearly a
decade ago.16 See Watson, 80 U.S. at 729, 733 (stating that a person who voluntarily joins a
religious organization impliedly consents to be governed by the organization’s customs and rules
pertaining to the conformity of the members of the organization to the standards required
thereby).
It is also evident from the face of the Complaint that JMGC’s prevailing practice in regard to
dissenting members is to publish maligning statements about them which are intended to cause
emotional and psychological trauma, and to isolate the dissenting members. Thus, the conduct
underlying Plaintiff’s claims precisely accords with the manner in which JMGC administers its
membership. To permit Plaintiff to pursue tort claims against JMGC for having published
defamatory statements to its membership regarding Plaintiff (specifically about “aspects” of
Plaintiff’s “soul”) and for its efforts to ostracize her from the organization and its members
would constitute an impermissible civil court intrusion upon JMGC’s Constitutionally protected
right to manage its own affairs.

Schoenhals, 504 N.W.2d at 236 (holding that the First

Amendment barred a couples’ claim of defamation where the defamatory comments were made
in the context of terminating the couple’s church membership; Downs, 683 A.2d at 813 (holding
that defamatory comments were not actionable in tort law because the comments were
intertwined with the church’s determination that the plaintiff was not a suitable candidate for
priesthood); C.L. Westbrook, Jr., 231 S.W.3d at 397-98 (holding that an otherwise actionable
professional negligence claim against a pastor was barred by the First Amendment because the
circumstances giving rise to the claim was inherently tied to the process of expelling the
plaintiff’s membership, and it could not be adjudicated without “unconstitutionally imped[ing]

16

Doc. 15, ¶¶20-21.

28 

the church’s authority to manage its own affairs”); Howard, 705 N.E.2d at 388-89 (holding that
the First Amendment barred a lawsuit for defamatory comments that were made in the context of
an underlying dispute between the plaintiff and his church); Paul, 819 F.2d at 880-81 (holding
that the imposition of tort damages on a religious organization for engaging in “shunning” would
unconstitutionally impose a direct burden on religion); Sands, 34 P.3d at 958-59 (holding that the
First Amendment barred claims based on the emotional distress caused by ostracism and
defamatory statements in the context of a religious dispute).
Further, the allegedly defamatory statements arose in the context of Defendants relating to
their members the reasons that Plaintiff’s JMGC/CoW membership was terminated.

For

example, that Plaintiff’s soul has a split who is a porn star; that her soul was part of the Manson
cult and other sex cults; and that “one aspect of [her] soul . . . was predatory in [the] group” are
among the allegedly defamatory statements that Plaintiff seeks to vindicate here. However, it is
evident from the face of the Complaint that these statements related to the reasons that Plaintiff’s
membership in JMGC/CoW was no longer viable. It is neither appropriate, nor under the First
Amendment is it permissible, for a civil court to adjudicate a defamation claim that arose in this
context. Schoenhals, 504 N.W.2d at 236 (holding that civil courts are barred from adjudicating
matters that relate to the termination of the plaintiff’s membership from a religious organization);
Wisconsin, 406 U.S. at 215 (holding that civil courts may not adjudicate matters that are “rooted
in religious belief”).
Finally, to the extent that the allegations in the Complaint suggest that the allegedly
defamatory statements were published exclusively to the JMGC’s membership,17 this fact

17

In this regard, the Court notes that Plaintiff alleges that JMGC published the at-issue statements to “JMGC’s
worldwide membership” on its website; and that after her membership was terminated, she was prohibited from
reading any of JMGC’s and “COW’s channeled communications.” (Doc. 15 at ¶¶ 30, 37)

29 

strengthens the Corut’s conclusion that Plaintiff’s claims, having occurred in the context of an
ecclesiastical dispute with JMGC/CoW, are barred by the First Amendment.

Schoenhals, 504

N.W.2d at 236 (reasoning that the fact that the defamatory letter was disseminated only to other
members of the Church strengthens the conclusion that the defamation claim arose from and was
limited to an internal conflict within the Church and is thus barred by the First Amendment”).
As noted earlier, Plaintiff seeks to recover under the tort theories of defamation,18 false light
invasion of privacy, intentional infliction of emotional distress, and civil conspiracy. Because
the conduct at issue occurred in New Mexico (Doc. 15 ¶ 6), Plaintiff’s claims are governed by
the substantive law of this state. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938) (holding
that a federal court sitting in diversity must apply the substantive law of the forum); McPhail v.
Deere & Co., 529 F.3d 947, 957 (10th Cir. 2008) (applying substantive law of forum state in
diversity action).
New Mexico Courts have had limited occasion to construe and apply the First Amendment in
the context of tort claims against a religious institution. See Galetti v. Reeve, 331 P.3d 997, 999
(N.M. Ct. App. 2014) (concluding that a teacher whose employment at a religious school had
been terminated could pursue a breach of contract claim which could be resolved without any
religious intrusion because the only issue raised thereby was whether the religious organization
complied with its contractual obligations; but remanding the plaintiff’s other tort claims—
including civil conspiracy and defamation—for the district court to consider whether these
claims involved religious matters); see Celnik, 131 P.3d at 103-04, 107 (affirming the dismissal
of a lawsuit brought by a Rabbi against the religious organization that formerly employed him
based on the “ministerial exception”). However, in accord with the general First Amendment

18

New Mexico does not recognize the tort of “defamation per se.” Smith v. Durden, 276 P.3d 943, 948-49, 951
(N.M. 2012).

30 

and church autonomy principles discussed earlier, the Court of Appeals of New Mexico has
recognized that “[t]he First Amendment does not immunize every legal claim against a religious
institution or its members, but only those claims that are rooted in religious belief.” Galetti, 331
P.3d at 999. Thus, whether the First Amendment bars a particular tort claim depends on whether
the alleged misconduct is rooted in religious belief[,]” which question must be answered by
considering the elements of the plaintiff’s claim to determine whether adjudication of the claim
“would require the court to choose between competing religious visions, or cause interference
with the church’s administrative prerogatives.” Id. at 1001.
In New Mexico, defamation is defined as “a wrongful and unprivileged injury to a person’s
reputation.”

Civ. U.J.I. 13-1001 NMRA (brackets omitted.)

The elements of defamation

include: a defamatory communication, published by the defendant, to a third person, of an
asserted fact, which is false, of and concerning the plaintiff, and proximately causing actual
injury to the plaintiff’s reputation. Cory v. Allstate Ins., 583 F.3d 1240, 1243 (10th Cir. 2009)
(quoting Newberry v. Allied Stores, Inc., 108 N.M. 424, 773 P.2d 1231, 1236 (1989)); see also
N.M. Civ. UJI 13–1002 (listing all nine elements of defamation).19

“Defamatory

communications are those which tend to expose a person to contempt, to harm the person's
reputation, or to discourage others from associating or dealing with [him or her].” Cory, 583 F.3d
at 1243 (quoting N.M. Civ. UJI 13–1007).

19

The elements of a prima-facie case of defamation are (i) a published communication (i.e. something intentionally
or negligently communicated to a person other than the plaintiff; (ii) the communication includes an asserted
statement of fact; (iii) the communication was concerning the plaintiff; (iv) the statement of fact is false; (v) the
communication is defamatory (i.e., it tended to expose the plaintiff to contempt, to harm her reputation, or to
discourage others from associating or dealing with her); (vi) the persons receiving the communication understood it
to be defamatory; (vii) the defendant knew the communication was false or negligently failed to recognize that it
was false, or acted with malice; (viii) the communication caused actual injury to the plaintiff’s reputation; and
(ix) the defendant abused its privilege to publish the communication. See Civ. U.J.I. 13-1002(B), 13-1003, 13-1007,
N.M.R.A.

31 

The tort of false light invasion of privacy is “a close cousin of defamation.” Andrews v.
Stallings, 892 P.2d 611, 625 (N.M. Ct. App. 1995). To prevail in a false light invasion of
privacy claim, the plaintiff must prove: that she “was portrayed in a false light” meaning that
“the matter published concerning the plaintiff is not true”; that the false portrayal would be
highly offensive to a reasonable person such that the plaintiff would be justified in the eyes of
the community in feeling seriously offended and aggrieved by the publicity”; and “that the
publisher had knowledge of or acted in reckless disregard as to the falsity of the publicized
matter and the false light in which the other would be placed.” Young v. Wilham, 406 P.3d 988,
1007–08 (N.M. Ct. App. 2017) (alterations omitted).
To prevail in a claim of intentional infliction of emotional distress, a plaintiff must prove that
(1) the defendants engaged in conduct that “was extreme and outrageous”; (2) the conduct was
intentional or done “in reckless disregard of the plaintiff”; (3) the plaintiff suffered “extreme and
severe” mental distress; and (4) “there is a causal connection between the defendant's conduct
and the [plaintiff’s] mental distress.” Baldonado v. El Paso Nat. Gas Co., 176 P.3d 286, 298
(N.M. Ct. App. 2008).
Finally, in order to prevail in a claim for civil conspiracy, a plaintiff is required to show that:
(1) a conspiracy existed between two or more individuals; (2) pursuant to the conspiracy, the
defendants carried out specific wrongful acts; and (3) the plaintiff was damaged as a result of
these acts. Cain v. Champion Window Co. of Albuquerque, LLC, 164 P.3d 90, 98 (N.M. Ct. App.
2007). However, the tort of civil conspiracy does not provide an independent basis for liability;
instead, it requires the plaintiff to establish “an independent unlawful act—i.e. “something that
would give rise to a civil action on its own.” Id. In this case, Plaintiff’s civil conspiracy claim is
tied to her claim of defamation. (Doc. 15 ¶¶ 76-79.)

32 

The statements and conduct giving rise to Plaintiff’s lawsuit cannot be adjudicated without
impermissible intrusion upon Defendants’ right, guaranteed by the First Amendment, to freely
exercise their religion. Each of Plaintiff’s claims, if adjudicated in a civil trial, would require the
jury (or judge in the role of fact-finder) to resolve questions that are rooted in religion. For
example, in order to succeed in her defamation claim or in her false light invasion of privacy
claim, Plaintiff would have to prove, among other things that, as a matter of fact, Plaintiff does
not: have “a split who is a porn star”; Plaintiff’s soul has not been part of “several sex cults”; and
that no aspect of Plaintiff’s soul was sexually or financially “predatory” within JMGC/CoW. See
Young, 406 P.3d at 1007–08 (stating that in order to prevail in a false light invasion of privacy
claim, the plaintiff is required to prove that the at-issue statement was “not true”) Civ. U.J.I. 131002(B) NMRA (stating the elements of defamation, including that an asserted statement of fact
regarding the plaintiff was “false”). She would have to prove, further, that when Defendants
made these statements they knew or should have known that they were false. Id. (stating that a
claim of defamation requires proof that the publisher knew or should have known that the
communication was false); Young, 406 P.3d at 1007–08 (stating that false light invasion of
privacy requires proof of the publisher’s knowledge or reckless disregard of the falsity of the
matter). To require a jury (or judge in the role of fact-finder) to determine the truth or falsity of
these statements and the extent to which Defendants believed them would entangle this secular
Court in a dispute centered upon Plaintiff’s and Defendants’ competing religious visions about
the nature of Plaintiff’s soul and whether the nature of her soul rendered her continued
membership within JMGC/CoW untenable. Under the First Amendment, such inquiries are not
within the purview of a civil court. See Galetti, 331 P.3d at 1001 (recognizing that courts are
prohibited from adjudicating matters that implicate competing religious visions or interfere with

33 

a religious organization’s administrative prerogative); see also Watson, 80 U.S. at 728–29
(indicating that matters of church discipline and the conformity of members of the church to the
standard of morals required of them are “strictly and purely ecclesiastical”). Accordingly,
Plaintiff’s claims of defamation and false light invasion of privacy are barred by the First
Amendment and shall be dismissed accordingly. Plaintiff’s civil conspiracy claim—which is
tied to her defamation claim (Doc. 15 ¶¶ 76-79), must also be dismissed. Cain, 164 P.3d at 98
(holding that the plaintiff’s civil conspiracy claim failed because the underlying claim to which it
was tied was not actionable).
Plaintiff’s claim of intentional infliction of emotional distress seeks to vindicate the harm
that Plaintiff suffered as a consequence of Defendants’ statements and their efforts to ostracize
her from JMGC/Cow and its members, including Mr. Kyzer. (Doc. 15 at ¶¶ 70-75.) However,
as noted earlier, civil courts are generally prohibited from intervening in internal religious
disputes involving ostracizing or shunning or making allegedly defamatory statements in the
process of expelling someone from a religious organization. See e.g. Paul, 819 F.2d at 880
(holding that to allow a plaintiff to pursue tort claims against a religious organization based on
shunning would effectively abridge the free exercise of religion guaranteed by the First
Amendment); see Sands, 34 P.3d at (holding that the First Amendment barred claims based on
the emotional distress caused by ostracism and defamatory statements in the context of a
religious dispute). Thus, even assuming that a fact finder could determine whether Defendants’
conduct was “extreme and outrageous” and that it was “intentional” or “done in reckless
disregard of” the Plaintiff without becoming entangled in questions of an ecclesiastical or
religious nature,20 to permit Plaintiff to pursue her claim for damages based on Defendants’

20

The Court notes that, as it pertains to Mr. Alexander’s “channeled” “Communication 17” regarding the state of
Plaintiff’s soul, this is a tenuous assumption.

34 

having ostracized and defamed her would, in the context of this case, amount to impermissible
government interference with Defendants’ right to practice their faith. Paul, 819 F.2d at 880-81
(reasoning that to allow the imposition of tort damages on a religious organization for shunning a
former member would essentially criminalize and force the church to forego the practice, thereby
imposing a direct burden on religion); see Galetti, 331 P.3d at 1001 (stating that if the remedy
sought by the plaintiff would substantively or procedurally interfere with a religious
organization’s operations the First Amendment operates as a “shield” against litigation).
Accordingly, Plaintiff’s claim of intentional infliction of emotional distress is barred by the First
Amendment and shall be dismissed.
CONCLUSION
For the reasons stated herein, Defendants’ Rule 12(b)(6) Motion to Dismiss With
Supporting Memorandum, filed November 16, 2017, (Doc. 19) is GRANTED. Plaintiff’s First
Amended Complaint for Defamation/Defamation Per Se/False Light Invasion of Privacy,
Intentional Infliction of Emotional Distress, Civil Conspiracy, Injunctive Relief (Doc. 15) is
DISMISSED with PREJUDICE.
IT IS SO ORDERED.

________________________________
KIRTAN KHALSA
United States Magistrate Judge
Presiding by Consent

35