Robert TILTON (individually and sued as allegedly d/b/a Robert Tilton Ministries), Word of Faith World Outreach Center, Inc. (a dissolved corporation), and Word of Faith World Outreach Center Church et al., Relators, v. The Honorable John McClellan MARSHALL, Judge, Respondent, 925 S.W.2d 672

PHILLIPS, Chief Justice, delivered the opinion of the Court on Motion for Rehearing as to Sections II and III and portions of

Section I, in which GONZALEZ, HECHT, SPECTOR, OWEN, and ABBOTT, Justices, join and a plurality opinion as to the remaining portions of

Section I in which SPECTOR, OWEN, and ABBOTT, Justices, join. We grant relators’ motion for rehearing in part and withdraw our prior opinions and judgment, and substitute the following opinion in its place. Based on their constitutional rights, rela-tors complain that the trial court abused its discretion in refusing to dismiss the claims of the plaintiffs in the underlying suit, or, at least, in ordering the production of certain allegedly protected documents.

Because we conclude that the trial court has abused its discretion in refusing to dismiss the plaintiffs’ claims of intentional infliction of emotional distress and related conspiracy claims, and in ordering the production of certain documents which are therefore irrelevant, we conditionally grant a writ of mandamus. We decline to grant writ against the trial judge for refusing to dismiss the plaintiffs’ claims of fraud and conspiracy as related to fraud.

FACTS The underlying suit involves claims by real parties in interest Curtis High, Patsy High, Andrea Johnson, and Mary Elizabeth Turk (collectively, “plaintiffs”) against Robert Til-ton, Word of Faith World Outreach Center Church, Inc., and Word of Faith World Outreach Center Church (collectively, “Tilton”). Tilton is now the principal pastor of Word of Faith World Outreach Center Church near Dallas, Texas. In June 1993, plaintiffs sued Tilton and the two named church entities along with several other defendants, alleging fraud, conspiracy, and intentional infliction of emotional distress.

Plaintiffs became aware of Tilton through his television programs about nine years ago. Patsy High, distraught over losing custody of her children, became convinced that Tilton could help her recover them. An avid viewer of Tilton’s broadcasts, she and her husband Curtis sent him written prayer requests, donated more than $15,000 to him, and eventually joined his church. Johnson, a physically disabled welfare recipient, also contributed financially to Tilton, made prayer requests, and joined his church as a result of his television programs.

Turk began watching Tilton’s evangelistic broadcasts, particularly those about faith healing, while caring for her ailing husband. Suffering herself from severe physical pain of unknown causes, Turk contacted Tilton’s “prayer line” to make a $1,000 donation to his church. Tilton sent her various mailings, along with a “prayer cloth” to place on the parts of her body that were in pain or needed healing. These mailings stated that Tilton had personally anointed the prayer cloth with convalescent power. Turk later donated nearly $500 more to Til-ton, forgoing medical treatment for her pain.

When her pain grew worse, Turk consulted a doctor and discovered she was terminally ill with rectal cancer. Turk is now deceased, and Dr. Toni R. Turk and Vicki Crenshaw are prosecuting her claims on behalf of her estate.

Plaintiffs allege, among other things, that Tilton represented “through ... televised programs, .. ■. [a telephone] prayer line, and ... mailings, including those viewed by and received by Plaintiffs,” that if they called the prayer line and made a “monetary vow or mail[ed] a monetary donation to Robert Til-ton Ministries” with a prayer request included, “Tilton will personally and actually read, touch and pray over each of these requests and that thereby, the one making the vow and request will receive whatever is requested.” Plaintiffs claim that Tilton made these and other representations in bad faith and that the representations were both fraudulent and intentional infliction of emotional distress.

During discovery, plaintiffs served Tilton with a subpoena duces tecum requesting, among other documents, “[r]ecords identifying the entities and/or charities that Robert Tilton has tithed to during the seven (7) years next preceding this request, and the amount thereof.” Tilton moved to quash the deposition. After two hearings, the trial court issued an order requiring Tilton to produce these tithing records “on or before the 1st day of December, 1994.... ” Tilton then filed an emergency motion for leave to file petition for writ of prohibition or writ of mandamus with this Court.

In it, Tilton requested the Court to “issue a writ of mandamus directing [the trial court] ... to reverse and vacate [its] ... order ... compelling production of religious tithing records; and issue a writ ... directing [the trial court] ... to exercise no further jurisdiction over this case, except to enter an order dismissing all claims against” Tilton. We granted leave and stayed both the trial court’s production order and all proceedings in the underlying suit pending our decision.

Tilton argues that the trial court abused its discretion by refusing to dismiss the underlying action and by ordering the production of his tithing records. He claims that the Texas Constitution, the United States Constitution, and the federal Religious Freedom Restoration Act of 1993 (“RFRA”), 42 U.S.C. §§ 2000bb-2000bb-4 (Supp. V 1993), bar plaintiffs’ causes of action against him and prohibit the trial court from ordering him to produce his tithing records.

Plaintiffs respond that neither the trial court’s discovery order nor its refusal to dismiss the underlying suit is an abuse of discretion justifying interlocutory relief. I. A. While

Article I,

Section 6 of the Texas Constitution and the First Amendment to the United States Constitution afford broad protection to the free exercise of religion, they do not necessarily bar all claims which may touch on religious conduct. The authors of the interpretive commentary to the provision of the Texas Constitution protecting freedom of worship state that the free exercise of religion does not go so far as to be inclusive of actions which are in violation of social duties or subversive of good order.

Although freedom to believe may be said to be absolute, freedom of conduct is not and conduct even under religious guise remains subject to regulation for the protection of society. Tex. Const, art. I, § 6 interp. commentary (Vernon 1984); see also Lide v. Miller, 573 S.W.2d 614, 614-15 (Tex.Civ.App.-Texarkana 1978, no writ). The federal constitution similarly distinguishes between the freedom to believe, which is absolute, and the freedom to act, which “remains subject to regulation for the protection of society.” Cantwell v. Connecticut, 310 U.S. 296, 303-04, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940).

The Free Exercise Clause never has immunized clergy or churches from all causes of action alleging tortious conduct. See Van Schaick v. Church of Scientology of California, Inc., 535 F.Supp. 1125, 1142 (D.Mass.1982); see also Molko v. Holy Spirit Ass’n for the Unification of World Christianity, 46 Cal.3d 1092, 252 Cal.Rptr. 122, 133, 762 P.2d 46, 57 (1988), cert. denied, 490 U.S. 1084, 109 S.Ct. 2110, 104 L.Ed.2d 670 (1989) (“[R]eligious groups may be held liable in tort for secular acts ... [and] in appropriate cases courts will recognize tort liability even for acts that are religiously motivated.”); Murphy v.

International Soc’y of Krishna Consciousness of New England, Inc., 409 Mass. 842, 571 N.E.2d 340, 346 (1991), cert. denied, 502 U.S. 865, 112 S.Ct. 191, 116 L.Ed.2d 152 (1991) (noting that the freedom to act on religious beliefs does not enjoy the same protection as the freedom to believe certain principles); Meroni v.

Holy Spirit Ass’n for the Unification of World Christianity, 119 A.D.2d 200, 506 N.Y.S.2d 174, 176 (N.Y.App.Div.1986) (“[A] church may be held liable for intentional tortious conduct on behalf of its officers or members, even if that conduct is carried out as part of the church’s religious practices.”). Thus when a plaintiffs suit implicates a defendant’s free exercise rights, the defendant may assert the First Amendment as an affirmative defense to the claims against him. See Paul v.

Watchtower Bible & Tract Soc’y of New York, Inc., 819 F.2d 875, 879 (9th Cir.1987), cert. denied, 484 U.S. 926,108 S.Ct. 289, 98 L.Ed.2d 249 (1987); see also New York Times Co. v. Sullivan, 376 U.S. 254, 282-83, 84 S.Ct. 710, 727, 11 L.Ed.2d 686 (1964); Carrieri v. Bush, 69 Wash.2d 536, 419 P.2d 132, 137 (1966); McNamara v. Freedom Newspapers, Inc., 802 S.W.2d 901, 904 (Tex.App.-Corpus Christi 1991, writ denied).

One seeking an exemption based on faith from a facially neutral, generally applicable statute, regulation, or common law principle must first demonstrate to the court that the application thereof would substantially burden his or her free exercise of religion. See RFRA, 42 U.S.C. § 2000bb-1; Sherbert v. Verner, 374 U.S. 398, 403, 83 S.Ct. 1790, 1793, 10 L.Ed.2d 965 (1963); People v. Woody, 61 Cal.2d 716, 40 Cal.Rptr. 69,394 P.2d 813, 816 (1964); TRIBE, American Constitutional Law § 14-12, at 1242 (2d ed. 1988).

If this showing is made, the government must show to the court that granting the exemption would significantly hinder a compelling state interest. See RFRA, 42 U.S.C. § 2000bb-l; Sherbert, 374 U.S. at 403, 83 S.Ct. at 1793; Tribe, supra, § 14-12 at 1242. Before a court can determine whether a law or regulation substantially burdens one’s free exercise rights, the individual generally must establish by a preponderance of the evidence that the beliefs avowed are not only religious in nature, but also sincerely held. See, e.g., Mosier v. Maynard, 937 F.2d 1521, 1526 (10th Cir.1991); Philbrook v.

Ansonia Bd. of Educ., 757 F.2d 476, 481 (2nd Cir.1985), aff'd, 479 U.S. 60, 107 S.Ct. 367, 93 L.Ed.2d 305 (1986); Africa v. Commonwealth of Pennsylvania, 662 F.2d 1025, 1029-30 (3rd Cir.1981), cert. denied, 456 U.S. 908, 102 S.Ct. 1756, 72 L.Ed.2d 165 (1982); Alabama and Coushatta Tribes of Texas v. Trustees of the Big Sandy Ind. Sch. Dist., 817 F.Supp. 1319, 1328 (E.D.Tex.1993), remanded, 20 F.3d 469 (5th Cir.1994); Woody, 40 Cal.Rptr. 69, 394 P.2d at 820-21; Note, Burdens on the Free Exercise of Religion: A Subjective Alternative, 102 Harv.L.Rev. 1258, 1270 (1989). B.

Although these rules have generally served to balance the rights of claimants against a defense of religious freedom, they do not suffice in cases where fraud is alleged. See generally, Stephens, Annotation, Free Exercise of Religion Clause of First Amendment as Defense to Tort Liability, 93 AL.R. Fed. 754 (1989) (noting that “[a]etions for fraud ... raise especially delicate issues with regard to religious freedom”). To establish fraud, a plaintiff ordinarily must prove, among other things, that the defendant has made a false representation. See, e.g., Stone v. Lawyers Title Ins.

Corp., 554 S.W.2d 183, 185 (Tex.1977). But while courts have the capacity to inquire into the sincerity of a person’s beliefs, the First Amendment prohibits courts from determining the veracity of religious tenets. United States v. Ballard, 322 U.S. 78, 86, 64 S.Ct. 882, 886, 88 L.Ed. 1148 (1944). Hence, no claim of fraud may be made if it rests on a representation of religious doctrine or belief — even if insincerely made. See Van Schaick, 535 F.Supp. at 1142-43; Molko, 252 Cal.Rptr. 122, 762 P.2d at 58; Christofferson v.

Church of Scientology of Portland, 57 Or.App. 203, 644 P.2d 577, 598 (1982), cert. denied, 459 U.S. 1206, 103 S.Ct. 1196, 75 L.Ed.2d 439 (1983). For example, most courts would probably hold that a claim of fraud is not actionable if based upon the representation that, in exchange for a monetary contribution, God will cure a sick donor’s illness. As long as the representation forming the basis of the fraud claim is a religious doctrine or belief, it is constitutionally protected from judicial inquiry. See, e.g., Christofferson, 644 P.2d at 605.

Consequently, the religious objector’s sincerity is irrelevant when a claim of fraud is based solely on a statement of religious doctrine or belief. See Anderson v. Worldwide Church of God, 661 F.Supp. 1400, 1401 (D.Minn.1987); Van Schaick, 535 F.Supp. at 1134-35. To avoid conducting “heresy trials,” courts may not adjudicate the truth or falsity of religious doctrines or beliefs. See Weiss, Privilege, Posture and Protection: Religion in the Law, 73 Yale L.J. 593, 607 (1964).

As the Supreme Court has explained: “The law knows no heresy, and is commits ted to the support of no dogma, the establishment of no sect.” Watson v. Jones, 13 Wall. 679, 728 [20 L.Ed. 666 (1871)].... Heresy trials are foreign to our Constitution. Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs. Religious experiences which are as real as life to some may be incomprehensible to others. Yet the fact that they may be beyond the ken of mortals does not mean that they can be made suspect before the law....

The Fathers of the Constitution were not unaware of the varied and extreme views of religious sects, of the violence of disagreement among them, and of the lack of any one religious creed on which all men would agree. They fashioned a charter of government which envisaged the widest possible toleration of conflicting views. Man’s relation to his God was made no concern of the state. He was granted the right to worship as he pleased and to answer to no man for the verity of his religious views. Ballard, 322 U.S. at 86-87, 64 S.Ct. at 886-87.

Therefore, because the truth or falsity of a religious representation is beyond the scope of judicial inquiry, the sincerity of the person making such a representation is irrelevant when the religious representation forms the basis of a fraud claim. Whether the statement of religious doctrine or belief is made honestly or in bad faith is of no moment, because falsity cannot be proved. C. The representations on which plaintiffs base their fraud claims fall into two categories.

One concerns Tilton’s alleged representations that he would perform certain concrete acts: personally reading, touching, and praying over plaintiffs’ prayer requests. The fraud claims based on these alleged representations do not infringe upon Tilton’s constitutional rights. They are based not on statements of religious doctrine or belief, but on Tilton’s alleged promises to perform particular acts.

See Ballard, 322 U.S. at 95, 64 S.Ct. at 890 (Jackson, J., dissentingXarguing for dismissal of fraud indictment for insincere religious representations rather than remand, and stating “I do not doubt that religious leaders may be convicted of fraud for making false representations on matters other than faith or experience, as for example if one represents that funds are being used to construct a church when in fact they are being used for personal purposes.”) Although the trier of fact must determine whether Tilton made these promises and faded to perform them, plaintiffs may satisfy the falsity element of a fraud claim by proving that Tilton had no intention of personally reading, touching, and praying over their prayer requests at the time he said he would do so.

See T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 222 (Tex.1992). The second group of claims involves Tilton’s allegedly fraudulent and deceitful representations of religious doctrine or belief. These representations, plaintiffs contend, were neither religiously motivated nor based on any sincere religious belief when Tilton made them, and therefore fall outside the protection of the First Amendment. For instance, plaintiffs complain of Tilton’s requests for funds, which repeatedly emphasize that the Bible commands adherents to tithe.

Citing numerous quotes from the Bible, Til-ton states in a mailing typical of the ones plaintiffs received: I feel the Holy Spirit prompting me to challenge you in the name of Jesus to send $100 right now.... This is your day to prove God for your miracle.... When God says to prove Him, it’s time to prove Him. I challenge you to prove Him now with a $100 offering to seed into the work of God and help us carry this anointed Elijah ministry to the four corners of the earth....

Jesus said, “Freely you have received, freely give” (Mt. 10:8 NTV)_ All through the Bible, men and women consistently worshipped God by giving offerings and sacrificial gifts. God always manifested Himself in their lives and He will do the same for you when you worship him with sacrificial offerings.... Whether or not made sincerely, such representations are statements of religious doctrine or belief. See, e.g., United States v.

Seeger, 380 U.S. 163, 176, 85 S.Ct. 850, 859, 13 L.Ed.2d 733 (1965) (indicating that beliefs are religious if “based upon a power or being, or upon a faith to which all else is subordinate or upon which all else is ultimately dependent”). As such, no jury can be allowed to determine their truth or falsity, for “[w]hen triers of fact undertake that task, they enter a forbidden domain.” Ballard, 322 U.S. at 87, 64 S.Ct. at 887. D. For JustiCes Gonzalez and Hecht, relief is justified because some of plaintiffs’ fraud claims appear to be based on just such representations of religious doctrine or belief by Tilton.

We cannot conclude that Tilton’s constitutional rights will be violated by this suit, however, because we cannot determine on this abbreviated record exactly which of Tilton’s representations plaintiffs will rely upon to prove their claims of fraud. The record before us includes only the copy of plaintiffs’ most recent petition and excerpts from transcripts of their depositions. As far as we can tell, Tilton has far from exhausted his opportunities to identify the alleged misrepresentations on which plaintiffs ground their claims.

He apparently has not served plaintiffs with any interrogatories asking precisely which statements their fraud claims are based upon, nor has he specially excepted to plaintiffs’ petition. The dynamic nature of the trial process makes it imprudent for us to structure the trial based on such an abbreviated record. While plaintiffs’ counsel at oral argument before us made several statements that indicated a present intent to proceed on inappropriate theories, we are loath to substitute these comments for a factually developed record.

Hence, we do not hold that the trial court has erred to such an extent that correction by extraordinary writ is justified. Nevertheless, we caution that a failure by the trial court to carefully consider each of the alleged misrepresentations on which plaintiffs base their fraud claims may irreparably violate Tilton’s constitutional rights. The trial court must identify those statements upon which plaintiffs’ fraud claims are based, determine which ones, if any, involve religious doctrines or beliefs, and ensure that the trier of fact does not hear evidence regarding them or pass on their veracity. E.

Because it is beyond judicial inquiry whether plaintiffs’ prayers would have been answered had Tilton fulfilled his promises to read, touch, and pray over their tithes and prayer requests, plaintiffs’ damages, if any, may not include compensation for their allegedly unanswered prayers. Ordinarily, the measure of damages in a fraud ease is the actual amount of the plaintiffs loss that directly and proximately results from the defendant’s fraudulent conduct. See, e.g., Holmes v. P.K. Pipe & Tubing, Inc., 856 S.W.2d 530, 543 (Tex.App.-Houston [1st Dist.] 1993, no writ); C & C Partners v. Sun Exploration and Prod.

Co., 783 S.W.2d 707, 718-19 (Tex.App.-Dallas 1989, writ denied); Duval County Ranch Co. v. Wooldridge, 674 S.W.2d 332, 335 (Tex.App.-Austin 1984, no writ). In this case, therefore, plaintiffs may recover only their donations to Tilton, together with any other pecuniary loss suffered as a consequence of their reliance upon his misrepresentations. Plaintiffs also may seek exemplary damages. See generally, Edgar & Sales, Texas ToRts and Remedies § 44.04[2][b] (1995) (“Exemplary damages ... may usually be recovered by the successful claimant in an action for common-law fraud.”).

Under no circumstances, however, may the trial court compensate plaintiffs for their allegedly unfulfilled prayers. F. We also deny Tilton the relief he seeks from plaintiffs’ conspiracy claims as they relate to fraud. Civil conspiracy, generally defined as a combination of two or more persons to accomplish an unlawful purpose, or to accomplish a lawful purpose by unlawful means, might be called a derivative tort. See Carroll v. Timmers Chevrolet, Inc., 592 S.W.2d 922, 925 (Tex.1979).

That is, a defendant’s liability for conspiracy depends on participation in some underlying tort for which the plaintiff seeks to hold at least one of the named defendants hable. See id. As a result, we do not analyze the trial court’s refusal to dismiss plaintiffs’ causes of action for conspiracy separately from its refusal to dismiss their other causes of action. If the trial court did not abuse its discretion in refusing to dismiss all of plaintiffs’ fraud claims, then, a priori, it did not abuse its discretion in refusing to dismiss the claims of conspiracy related to fraud.

See generally, Edgak & Sales, supra, § 3.02[2], II. Tilton next seeks relief from the trial court’s refusal to dismiss plaintiffs’ claims of intentional infliction of emotional distress. As with their fraud claims, plaintiffs allege that Tilton’s intentional infliction of emotional distress took two forms: 1) making insincere religious representations, and 2) breaching promises to read, touch, and pray over their tithes and prayer requests. See Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex.1993).

Although we have allowed plaintiffs to proceed on their fraud claims once narrowed to include only the promises to read, touch and pray, we conclude that such a distinction is not available to permit claims of intentional infliction of emotional distress. Resolving whether Tilton has intentionally inflicted emotional distress through the making of insincere religious representations would inevitably require an inquiry into whether Tilton’s religious beliefs are true or false.

One of the elements that a plaintiff must prove to establish intentional infliction of emotional distress is that the conduct was “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” See Twyman, 855 S.W.2d at 621.

With regard to religious representations, we conclude that no conscientious fact finder would make such a determination without at least considering the objective truth or falsity of the defendants’ beliefs, regardless of what evidentiary exclusions or limiting instructions were attempted. After all, the outrageousness and extremity of a representation is, under almost any circumstance, aggravated by being false or mitigated by being true. Whether consciously or unconsciously, that premise would inevitably inform the trier of fact’s consideration of the outrageousness of a religious representation.

We would expect too much to ask any trier of fact to disregard any consideration of the truth or falsity of a religious representation when deciding whether it is outrageous and extreme. Such a demand might be metaphysically possible, but practically it would be impossible. The danger that the trier of fact would subconsciously weigh the representations against his own preconceived notions of truth and falsity, even while struggling to keep truth and falsity out of the equation, creates an unacceptable risk of constitutional impingement.

While the “read, touch and pray” issue is perhaps closer, we similarly conclude that any consideration of whether the alleged conduct was extreme and outrageous would inevitably entail an evaluation by the fact finder of the truth or veracity of those religious beliefs espoused by Tilton. Because the First Amendment strictly prohibits entry into this “forbidden domain,” see Ballard, 322 U.S. at 86-87, 64 S.Ct. at 886-87, the trial court therefore abused its discretion by not dismissing all of plaintiffs’ claims for intentional infliction of emotional distress.

We are not, of course, granting mandamus relief to Tilton merely because we conclude that plaintiffs cannot prevail on certain claims. Mandamus is an “extraordinary” remedy, reserved for “manifest and urgent necessity,” Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 684 (Tex.1989), and will not issue unless relator satisfies a heavy burden of establishing “compelling circumstances.” See Tex.R.App.P. 121(a)(2)(D); Canadian Helicopters, Ltd. v. Wittig, 876 S.W.2d 304, 306 (Tex.1994); Walker v. Pack er, 827 S.W.2d 833, 842 n. 9 (Tex.1992).

Under Walker, a relator seeking mandamus must show that respondent either failed to perform a clear legal duty or committed a clear abuse of discretion; that relator’s legal remedies are inadequate; and that the petition raises important issues for the state’s jurisprudence. Id. at 840-41 and 839 n. 7. We hold that this high burden of proof is met in this case as to the trial court’s refusal to dismiss plaintiffs’ claims for intentional infliction of emotional distress.

The petition raises important issues related to constitutional protections afforded by the First Amendment which an appeal cannot adequately protect. Adjudication of the claims for intentional infliction of emotional distress would necessarily require an inquiry into the truth or falsity of religious beliefs that is forbidden by the Constitution. See Ballard, 322 U.S. at 86-87, 64 S.Ct. at 886-87. The trial itself, therefore, and not merely the imposition of an adverse judgment, would violate relator’s constitutional rights. Cf. Van Cauwenberghe v.

Biard, 486 U.S. 517, 526-27, 108 S.Ct. 1945, 1951-52, 100 L.Ed.2d 517 (1988) (unanimous Court stating that “in the context of due process restrictions on the exercise of personal jurisdiction, this Court has recognized that the individual interest protected is in ‘not being subject to the binding judgments of a forum with which [the defendant] has established no meaningful “contacts, ties, or relations,” ’ ” citing Burger King Corp. v.

Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985), and that “the right not to be subject to a binding judgment may be effectively vindicated following final judgment”). While mandamus may not be appropriate in every case in which constitutional rights are impaired, we believe that mandamus relief is justified under these facts. Because we grant Tilton the relief he seeks from plaintiffs’ intentional infliction of emotional distress claims, we likewise grant relief from plaintiffs’ conspiracy claims as they relate to intentional infliction of emotional distress.

We therefore grant Tilton’s motion for leave to file the petition for mandamus, and conditionally grant the writ in part pursuant to Texas Rule of Appellate Procedure 122. If the trial court fails to dismiss the plaintiffs’ claims for intentional infliction of emotional distress and related conspiracy claims, or exercises any further jurisdiction over those claims except to dismiss them, the writ will issue. III. We now consider Tilton’s contention that mandamus should also issue because the trial court compelled the production of his tithing records.

Our dismissal of all but Tilton’s fraud claims as to promised but not performed conduct has rendered these highly personal documents irrelevant. Because we hold that, under the circumstances of this case, mandamus relief is justified on that basis alone, we need not reach Tilton’s argument that the First Amendment rights of free exercise of religion and freedom of association shield these records from discovery.

Litigants “may obtain discovery regarding any matter which is relevant to subject matter in the pending action whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party.” Tex.R.Civ.P. 166b(2)(a). Til-ton’s tithing records are not even potentially relevant to the only remaining issue in this case, whether Tilton committed fraud by promising and by then failing to read, touch and pray over plaintiffs’ prayer requests.

Mandamus will lie to correct a discovery error only if the discovery order constitutes a clear abuse of discretion, and the aggrieved party has no adequate remedy by ordinary appeal. National Tank Co. v. Brotherton, 851 S.W.2d 193, 196 (Tex.1993). A discovery order mandating the disclosure of irrelevant documents does not normally satisfy this standard for mandamus relief.

However, “[w]here a discovery order compels the production of patently irrelevant or dupli-cative documents, such that it ... imposes a burden on the producing party far out of proportion to any benefit that may obtain to the requesting party,” mandamus relief may also be justified. Walker, 827 S.W.2d at 843, citing Sears, Roebuck & Co. v. Ramirez, 824 S.W.2d 558 (Tex.1992) (demand for tax returns); General Motors Corp. v. Lawrence, 651 S.W.2d 732 (Tex.1983)(demand for information about all vehicles for all years). See also Texaco, Inc. v. Sanderson, 898 S.W.2d 813 (Tex.1995).

Here, the burden imposed by the discovery order derives from the fact that the documents ordered disclosed are not only irrelevant but also highly sensitive and personal. In many respects, this request resembles those for tax returns. Thus, in Crane v. Tunks, 160 Tex. 182, 328 S.W.2d 434 (1959), we rejected relators’ argument that tax returns are privileged and not subject to discovery. We held, however, that the trial court abused its discretion by requiring defendant to produce defendant’s 1950 income tax return without first examining it to determine which parts were relevant to the litigation.

Three years later, in Maresca v. Marks, 362 S.W.2d 299, 300 (Tex.1962), we again granted a conditional writ on the basis that the trial court clearly abused its discretion by requiring disclosure of irrelevant information contained in income tax returns, including private information regarding charitable contributions. Subjecting federal income tax returns of our citizens to discovery is sustainable only because the pursuit of justice between litigants outweighs protection of their privacy.

But sacrifice of the latter should be kept at a minimum, and this requires scrupulous limitation of discovery to information furthering justice between the parties which, in turn, can only be information of relevancy and materiality to the matters in controversy. Maresca v. Marks, 362 S.W.2d at 301. Most recently, in Hall v.

Lawlis, 907 S.W.2d 493 (Tex.1995), we granted mandamus relief from a trial court’s order compelling the production of tax returns where no showing of relevancy had been made, recognizing our previously expressed “reluctance to allow uncontrolled and unnecessary discovery of federal income tax returns.” Hall v. Lawlis, 907 S.W.2d at 494-5, citing Sears, 824 S.W.2d at 559. We are similarly reluctant to allow unnecessary disclosure of a litigant’s tithing records, which contain information of a highly personal and private nature and which in many cases may be a subset of a person’s tax records.

As we held regarding the forced production of tax records, where the irrelevant portions of which were not safeguarded from discovery, “[a] litigant so subjected to an invasion of privacy has a clear legal right to an extraordinary remedy since there can be no relief on appeal; privacy once broken by the inspection and copying ... by an adversary cannot be retrieved.” Maresca, 362 S.W.2d at 301. Therefore, under the particular circumstances here, Tilton’s tithing records being wholly irrelevant, we believe that the Walker standard has been met.

Accordingly, we grant Tilton’s motion for leave to file the petition for writ of mandamus as to the requested production of documents, and conditionally grant the writ pursuant to Texas Rule of Appellate Procedure 122. If the trial court fails to reverse and vacate his discovery order compelling production of Til-ton’s religious tithing records, the writ will issue. GONZALEZ, J., filed a concurring and dissenting opinion. HECHT, J., joined by GONZALEZ, J., filed a concurring and dissenting opinion. ENOCH, J., joined by CORNYN and BAKER, JJ., filed a concurring and dissenting opinion. .

Sections II and III of this opinion constitute the opinion of the Court, along with those portions of

section I in which Justices Gonzalez and Hecht join. The remaining portions of

section I constitute a plurality opinion. . Plaintiffs' First Amended Petition also alleged claims for negligent infliction of emotional distress, but the trial court granted Tilton’s Motion for

Summary Judgment with respect to those causes of action. See Boyles v. Kerr, 855 S.W.2d 593, 594 (Tex.1993). .In mailings allegedly typical of the ones plaintiffs received, Tilton states, among other things: When I receive your sheet ... I am going to take it and touch it and command a blessing of the tithe and offering upon what you have given to God_ I will ... place the blessing of God’s Word upon your gift of faith to Him.... I am going to lay my hands on your BEST REQUESTS and release my faith for you.

I am going to pray and prophesy as the Spirit of God directs me in that moment for you_ Send your requests back to me. Enclose the four seeds you’ve held in your hand. The seeds that I’ve prayed over you have now touched and I will touch them again. They will become your miracle link for the miracle harvest you desire to have in your life.... I will pray and speak the very Word that Angels hearken to over your requests. I will let the Spirit of God guide me as I do. Rush your requests to me today! .

A writ of prohibition directs a lower court to refrain from doing some act while a writ of mandamus commands a lower court to do some act. The same principles control the use of both writs when, as Tilton urges the Court in this case, they are invoked to correct the unlawful assumption of jurisdiction by an inferior court. See Canadian Helicopters Ltd. v. Wittig, 876 S.W.2d 304, 309 n. 12 (Tex.1994). . We note that the constitutionality of the RFRA was recently upheld in Flores v. City of Boerne, 73 F.3d 1352 (5th Cir.1996), petition for cert. filed, 65 U.S.L.W. 3017 (U.S. June 25, 1996) (No. 95-2074).

Other courts have also determined that the RFRA is constitutional pursuant to Congress’s enforcement powers under § 5 of the Fourteenth Amendment. See Sasnett v. DOC, 891 F.Supp. 1305 (W.D.Wis.1995); Belgard v. Hawaii, 883 F.Supp. 510, 516-17 (D.Haw.1995); State v. Miller, 538 N.W.2d 573, 577 (Wis.App. 1995, petition for review filed). No party raises a constitutional challenge to the RFRA here. . Because Tilton has not argued persuasively for a different application of the provisions of the First Amendment and

Article I,

Section 6 as they pertain to the free exercise of religion, we assume without deciding that the state and federal free exercise guarantees are coextensive with respect to his particular claims.

The construction of any provision of the Texas Constitution depends upon factors such as the language of the constitutional provision itself, its purpose, the historical context in which it was written, the intention of the framers and ratifiers, the application in prior judicial decisions, the relation of the provision to other parts of the Constitution and the law as a whole, the understanding of oAer branches of government, Ae law in other jurisdictions, state and federal, constitutional and legal Aeory, and fundamental values including justice and social policy.

See Ex parte Tucci, 859 S.W.2d 1, 18 n. 3 (Tex.1993) (Phillips, C.J., concurring). Tffton's briefs to this Court adAess almost none of these factors. While interesting developments are occurring in state religion clauses in oAer jurisActions, see, e.g., Neil McCabe, The State and Federal Religion Clauses: Differences of Degree and Kind, 5 St. Thomas L.Rev. 49 (1992), we are reluctant to decide an issue as important as Ae scope of Ae Texas Constitution’s free exercise guarantee under Aese circumstances. .

The Supreme Court of the United States has likewise suggested that an inquiry into the sincerity of a claimant's religious beliefs is proper where free exercise rights are asserted. See Wisconsin v. Yoder, 406 U.S. 205, 235, 92 S.Ct. 1526, 1543, 32 L.Ed.2d 15 (1972) ("the Amish in this case have convincingly demonstrated the sincerity of their religious beliefs”); Thomas v. Review Bd. of Indiana Employment Sec. Division, 450 U.S. 707, 715-16, 101 S.Ct. 1425, 1431, 67 L.Ed.2d 624 (1981)(“petitioner terminated his work because of an honest conviction that such work was forbidden by his religion”); Frazee v.

Illinois Dept. of Employment Sec., 489 U.S. 829, 833, 109 S.Ct. 1514, 1517, 103 L.Ed.2d 914 (1989) (“nor do we underestimate the difficulty of distinguishing between religious and secular convictions and in determining whether a professed belief is sincerely held”). . According to Justice Hecht, “compensatory damages cannot be recovered because there is no way to determine the value of what plaintiffs received" since Tilton conferred some benefit on plaintiffs by praying for them generally. Infra at -. Were the evidence in the

summary judgment record solely that plaintiffs donated to Til-ton because of his representations that he would pray for them generally, Justice Hecht might be correct. But if plaintiffs can convince the trier of fact that they specifically relied on Tilton's promises to personally read, touch, and pray over their tithes and prayers requests and would not have contributed to him but for that, any value of Tilton’s general prayers would be irrelevant. .

Obviously, because our judgment has changed in response to the motion for rehearing, Tilton has not had the opportunity to argue that we should compel the trial court to vacate its discovery order because his tithing records are irrelevant to the only remaining claim — fraud related to the promises to read, touch and pray. However, because Tilton's second point of error on rehearing argues that "Reverend Tilton’s tithing records are not relevant to the subject matter in the pending action,” albeit on other grounds, we believe the issue is sufficiently raised so as to justify our considering it in this opinion. .

In Walker, we disapproved of Crane and other cases "to the extent that they imply that a remedy by appeal is inadequate merely because it might involve more delay or cost than mandamus.” Walker, 827 S.W.2d at 842. Our opinion in Maresca, however, including our reliance therein on Crane, makes clear that the inadequacy of remedy by appeal from the forced production of irrelevant tax records derives not from the relative cost or the delay, but from the invasion of a litigant's privacy.