The controversy traces back to an ill-considered raid by the FDA on the Founding Church on January 4, 1962. (See "Scientology and the FDA," October 1966 FATE). With a truckload of Baltimore longshoremen hastily deputized as United States marshals, officials of the agency abruptly entered the church and without showing a warrant seized its E-meters and a large amount of literature, justifying this action on the grounds that under the Food and Drug Act the FDA has jurisdiction over any physical object or substance for which medical powers are claimed. The agency contended that false claims were being made concerning the healing powers of the electronic device known as an E-meter which is used in the Scientologists' religious services.

A final court decision recently shot down the government's case. On August 30, 1971, Federal District Court Judge Gerhard A. Gesell in Washington handed down a ruling sustaining the right of the Scientologists to use the E-meters. And even more surprising, the judge went further. He ordered the suppression of secular use of the E-meters, thus in effect forcing the government to become defender rather than prosecutor of Scientology.

However, it seems clear to those who have followed the long drawn-out litigation that FDA bungling more or less forced Judge Gesell to come out with his somewhat equivocal rulings. Anyone who has studied the case must be shocked by the agency's inability to distinguish a religious practice from a possible violation of the Food and Drug Act. The feeling was virtually unanimous that the FDA had stumbled into a course of action which conceivably could lead to challenge all faith healing, no matter how many religious toes it stepped on.

Judge Gesell stated in his ruling that he could not go into the case on religious grounds because such action is forbidden by the First Amendment to the Constitution which guarantees religious freedom (In the early phase of the litigation it had been established in the Court of Appeals that Scientology is indeed a religion).

Despite his reference to Scientology as a "pseudoscience that has been adopted and adapted for religious purposes" Judge Gesell had no alternative but to exonerate the church. Therefore he had to reject the FDA's claim that it had the power to prevent the use of E-meters in the Church itself. Then the only part of the case left to deal with was the nonreligious use of the devices.

Proceeding along this line he not only limited the Use of E-meters to bona fide religious counseling but expressly banned all other use. He further ordered that the devices be appropriately labeled — that is, they must bear a printed statement that they have "no proven usefulness in the diagnosis prevention or treatment of any disease" and are not "medically or scientifically capable of improving any bodily function."

The Scientologists don't mind these restrictions at all. The labeling require poses no problem because E-meters already display signs stating they are not effective in the treatment disease. The ruling forbidding the unofficial use of the devices outside the church's jurisdiction pleases them no end.

The Rev. Arthur J. Maren, Scientology minister of public relations was particularly delighted with this prohibition. "We may be the only religion that can call on the government to chase out heretics," he said gleefully.

The Scientologists always have claimed that the root of their trouble with the FDA was the unauthorized use of E-meters by persons outside the church. They say the charlatans have made false claims about the therapeutic value of the machines and point out that the FDA would have shown more discrimination if it had taken action against these "imposters."

For their part the Scientologists repeatedly have denied in the courts and in press statements that they ever have claimed the E-meter has any virtue as a healing device. They insist it is used only as a counseling aid, that it is designed to indicate to an "auditor" (counselor) when an area of stress is encountered during a counseling session.

They explain that the E-meters are used by the church in a process not too different from the Catholic rite of confession. Instead of hearing a person confess his sins the "auditors" of the Church of Scientology use a long list of questions covering almost every sin in the book. As these questions are asked the person seeking counseling grasps the handles of the E-meter. These handles look for all the world like tin cans. They are connected by wires to a battery-powered apparatus which registers emotional reactions in a manner somewhat similar to the lie detector.

However, the Scientologists emphasize that while the E-meter is a helpful shortcut it is not indispensable. Another point they stress is that it is not harmful — a contention the government has not challenged. In this connection the Scientologists express bewilderment that the FDA never has seen fit to confiscate electric shock machines sometimes used by psychiatrists since there have been cases where these machines have electrocuted persons undergoing treatment.

In fact, Scientologists wonder why they have been singled out for prosecution by the FDA. If all substances or artifacts for ministering to spiritual needs come within the FDA's purview, why has it overlooked the major religions?

For example, what about the wafers, wine and holy water so prominent in Catholic rituals and the sacramental wine used in both Protestant churches and Jewish temples — or for that matter what about the rubbing oil the Mormons consider an element of faith?

The Scientologists' complaint that alone among the nation's sects they have had to fight government prosecution has not gone unnoticed by other denominations. Without endorsing Scientology's tenets several churchmen have expressed concern over the FDA's action. They look on it as a threat to the principle of religious freedom throughout the country.

Even consumer advocate Ralph Nader got into the act — although from a different angle. While the government's case was pending he demanded in his usual blunt fashion that the FDA drop its "witch-hunt" and get on with the proper enforcement of the Food and Drug Act. A study group he set up released a blistering report denouncing the FDA for focusing on wrong targets such as the researches of Dr. Wilhelm Reich, the vitamin and health food industries and the religion of Scientology, while woefully neglecting its responsibility to protect the public against misbranded drugs and adulterated foods.

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THE HISTORY of the case has been long and lurid. It began when the Scientologists brought suit to recover the E-meters and literature seized by the FDA. The District Court decided against the Scientologists. The litigation then was carried to the Court of Appeals and an attempt to take it to the Supreme Court was unsuccessful.

Finally the case was remanded to the District Court on the question of religious freedom which because of FDA ineptness had become an almost inseparable part of the proceedings. This is the sort of issue leading legal lights believe the government should always avoid.

Needless to say, the litigation has cost the Scientologists time and money and a lot of anguish. But they have gained something too — mainly, the right to practice their religion without government interference. They recovered most of the confiscated material when the District Court in its final verdict ordered the FDA to return 100 E-meters (an undetermined number had been lost in the shuffle) and some two tons of literature. The FDA had asked the courts to allow this property to be destroyed.

As matters now stand the dispute appears settled. The FDA is keeping mum but most observers believe the agency will not seek an appeal. Scientologists have no need to appeal, for they feel that in addition to coming out whole they have written a new chapter in the legal annals of the country, a chapter which will make it less likely that the FDA or any other federal or state agency will meddle with religious practices in the future.