Academics line up to help Scientology gaslight the US Supreme Court
On January 19, when a California appeals court stunned the Scientology-watching world with its ruling that restored Bixler v. Scientology, the lawsuit filed by Danny Masterson’s accusers, we spent considerable time reporting on how much the court’s ruling made a major distinction about how this case was unique.
That day, we pointed out how several times in their ruling, the three-justice panel at California’s 2nd Appellate District had gone to pains to say that they were not questioning the right of a church to hold its members to contracts which obliged them to take their grievances to “religious arbitration,” or even to question the right of Scientology to enforce those contracts against ex-members.
What made this case different, they said, was that Scientology was trying to enforce an arbitration contract against ex-members who said they had been harmed by Scientology after they left the church.
Individuals have a First Amendment right to leave a religion. We hold that once petitioners had terminated their affiliation with the Church, they were not bound to its dispute resolution procedures to resolve the claims at issue here, which are based on alleged tortious conduct occurring after their separation from the Church and do not implicate resolution of ecclesiastical issues.
(Emphasis ours.) And to make that point even stronger, the appeals court specifically cited another case, the lawsuit filed by ex-Scientologists Luis and Rocio Garcia in 2013, who alleged that they had been defrauded by Scientology while they were members.
While we find Garcia relevant to Scientology’s constitutional argument, and discuss it in that context, we recognize that the Garcias had sought the return of funds donated while they were members. The case therefore did not consider whether former members could be compelled to arbitrate claims arising from torts committed after they had left the church.
(Again, emphasis ours.) So the court recognized that Scientology could enforce its contracts on ex-members, as long as they were alleging harm that had been caused while they were still in the church. This is a central idea in the ruling and one that the court repeatedly makes in it.
And we will remind you again, the court came to this conclusion despite the fact that the attorney for the Bixler plaintiffs, Marci Hamilton, had argued at a November 6 hearing that the contracts should be null and void simply because these ex-members had left the church.
The court disagreed, but restored the lawsuit specifically because it alleges that Scientology was stalking, harassing, and even killing the pets of these former Scientologists after they had left the organization.
Naturally, however, when Scientology petitioned this ruling to the US Supreme Court last month, it made no mention at all about this distinction. Instead, Scientology is trying to gaslight the US Supreme Court by bleating like stuck pigs that its First Amendment rights are under attack because the California court ruled that its contracts are unenforceable simply because a member walks away.
Again, the appeals court went to pains to say, in several different ways, that this was not the case.
As much as we have pointed out this vital detail over and over in multiple stories, other news organizations reporting on this case almost never make the distinction, instead quoting Scientology’s language that its freedoms are under attack.
And now, Scientology has academics rallying to its cause. Two amicus briefs have been filed with the Supreme Court, urging the court to take up the case and examine its issues.
One of the amicus briefs was filed by Federalist Society member Ronald Colombo and by Emory University professor Michael Broyde, who also wrote something mischaracterizing the case for the Wall Street Journal. A second amicus brief came in from a Tennessee lawyer, Larry Crain, who runs something called the Church Law Institute.
We’re providing links to both briefs below. We will let you see for yourself that they, like Scientology in its petition, make no mention of the distinction that the appeals court was so careful to make, which said that it was not questioning a church’s rights to hold its members to contracts, or even to hold ex-members to those contracts when it comes to things that happened while they were still in the church.
Instead, all three documents — Scientology’s petition and the two amicus briefs — ignore that distinction and claim, incorrectly, that the appeals court is saying the contracts are useless as long as people can walk away from their religion.
“If former church members are permitted to ignore contractual limitations on civil litigation merely by withdrawing from the church, then the practical effect of this ruling is to render such covenantal agreements meaningless,” Crain writes in his amicus.
How’s that for some legal gaslighting.
Will these amicus briefs make any difference? It’s always hard to know. The Supreme Court receives hundreds of petitions every year and only selects a small number to take up. In any normal year, Scientology’s chances of getting the court’s interest, particularly for an appeals ruling that was “unpublished” (meaning not to be used as legal precedent in other cases) would be very small.
But this Supreme Court has shown an interest in “religious freedom” cases, and you can see in all three documents that Scientology and its friends are trying mighty hard to convince the court that a church’s freedoms have been viciously attacked by the California court. Will it work? We’ll find out in a couple of months.
Amicus brief by Broyde and Colombo.
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The California district court framed the issue to be a wholly unremarkable proposition- do arbitration agreements extend in perpetuity to cover actions occurring after a party has left the organization?
If I were the plaintiffs I would reply to the underlining petition for review (at least it was standard practice for the state when I filed petitions) but I would not line up competing amicus briefs at this time. There is no need to make this case appear unusual.
I did note that when Crain’s brief quoted Corinthians in a footnote, he left out the important distinction. Paul wrote about a situation where “brother goes to law against brother.” In the scenario presented by the court of appeal, one brother is no longer going to court against another brother. Crain is no better of a theologian than he is a legal scholar.
The justices vetted by the Federalist Society, which I believe are all the Republican appointees, should recuse themselves from the case.