Friday, 10 February 2012

The Headleys on appeal I

A church cannot be exempt from sanctions for human trafficking and forced labor, a lawyer for two former Scientologists told a U.S. appeal court.

Attorneys for Scientology and two former members of Scientology’s elite Sea Org cadre, went head to head in a California appeal court Thursday.

Marc and Claire Headley, who worked at a high-security compound near Hemet, in California, known as Gold Base, argue they were subjected to forced labour.

Marc Headley says he suffered several physical assaults from the movement’s leader, David Miscavige, who was based at the same compound.

Claire Headley says she was forced to have two abortions and witnessed repeated physical assaults on fellow workers.

Both were appealing August 2010 District Court rulings by Judge Dale Fischer dismissing their cases.

Judge Fischer had ruled that the principle of ministerial exception, derived from First Amendment constitutional rights guaranteeing freedom of religion, ruled out any consideration of the allegations.

The hearing was confined to 30 minutes, with time strictly rationed on both sides.

Kathryn Saldana of the Metzger Law Group, opened pleading for the Headleys before judges Dorothy Wright Nelson, Diarmuid Fionntain O`Scannlain and N. Randy Smith.

Saldana for the Headleys

Saldana’s opening point was that Scientology was trying to have it both ways.

The movement was claiming that on the one hand they “do not believe in or engage in the act of forced labor, and on the other hand they seek the protection of the First Amendment in order to defend against claims of forced labor.”

But where a religious organisation had no religious justification for forced labour then they could not avail themselves of First Amendment protection, she argued.

“And more importantly, regardless of whether a religious justification is offered, when the conduct at issue concerns a violation of a basic and fundamental constitutional right, such as freedom from involuntary servitude –”

Judge Wright Nelson broke in to go directly to the claims over forced labor.

“Doesn’t this require the Court to resolve religious questions by challenging the way the Church governs itself and the discipline of the Sea Organization?” she asked. Did that not inevitably lead into a discussion of ministerial exception?

Saldana replied that the courts had only recognised ministerial exception in cases of minimum wage or employment discrimination.[i] Those cases were about the hiring or firing of ministers, about a church’s right to determine who would represent their faith, she said.

“This case is fundamentally different than those, because we are talking on fundamental constitutional rights, fundamental constitutional rights to be free,” she added.

“There’s a long line of case law that provides that, even  if a religious justification is offered, when you are touching on something that is so subversive of good order … courts can regulate that conduct regardless of whether or not there is a religious justification.”

Judge Wright Nelson asked about the Headleys’ claims that they couldn’t get out of Scientology.

Surely by their own admissions, they had known a number of people who had gotten out without suffering real harm – despite fears that if they left they would be outcasts that they would be harmed, said the judge.

Certainly, Saldana replied. But it was also true that Claire Headley had been told that she had foregone her right to leave and that if she did leave she would be found and brought back.

They had also supplied numerous examples of people who had tried to leave and were followed and were brought back. And, she added: “When they were brought back to Gold Base they were placed under restricted watch, they were limited to the property, they were assigned demeaning assignments –“

Psychological compulsion

At which point one of the judges broke in once again: what she was really asking them to determine then was that psychological compulsion to stay was sufficient reason for the judges to probe the Church’s doctrine.

Saldana cited case law to the effect that psychological compulsion was a feature of human trafficking.

So was she arguing that the judges should look at Church doctrine to determine if it was correct, the judge asked? No, said Saldana.

In which case, said the judge, how could he decide whether or not there had been psychological compulsion?

The Headleys had outlined a number of a number of acts for which Scientology did not offer a religious justification, said Saldana – and that alone would be enough for the court to conclude that there had been psychological compulsion.

She cited Scientology’s official position on human rights: the movement believed that individuals have an inalienable rights to be free, she said.

They prohibited:

·        physical punishment or detention;
·        physical abuse, use of threats or physical intimidation;
·        involuntary confinement;
·        any kind of physical coercion or any other form of coercion including threats that if they do not return they will never see their family again[ii]

“They also have a policy that they must abide by the law,” she added. “They also have a policy against stalking or harassment –”

Here, the judge broke in again: he wanted her best shot.

“What’s the best physical abuse allegation you have here? … my worry is that in any one of these allegations that you have made… that they all really go to psychological compulsion.”

The best example of abuse was that suffered by Marc Headley, said Saldana.

“He was physically assaulted by the head of the Church on more than one occasion.

“However there is also evidence in the record that indicates that co-workers of Claire Headley were physically abused in her presence on at least 50 instances,” she added.

Regular abuse, violence

A Scientology spokesman had acknowledged that between 2000 and 2004 there were at least 50 instances of physical violence against members of the Sea Organization by high-ranking officials, she pointed out.

The important thing from the perspective of the laws on forced labour was that these assaults – whether against the Headleys or their co-workers – were intended to make them believe that they would suffer the same consequences if they did not fall in line and keep working for Scientology, Saldana argued.

“So all of these acts of physical violence go to the issue of psychological compulsion.”

Scientology was not offering any religious justification of this violence, so the court was not being dragged into the church doctrine argument by reviewing such evidence.

But the main issue, she wanted to stress, was that there was a long line of Supreme Court precedents that churches could believe what they wanted.

“But when those beliefs turn into actions, and actions that are subversive of good order, then a court may regulate that conduct regardless of whether there is a religious justification for it.”

Turning to the district court rulings against the Headleys, she noted that Judge Fischer had had did not accept their claim that they had been subjected to coercion – at least as it was defined by the human trafficking laws – and had rejected their claims as “lacking credibility”.

Judge Wright Nelson intervened.

“Well, there was evidence that the Headleys were happy, for a long time,” she said. They had lived outside the compound, they were free to come and go, they travelled.

“What was preventing them from just leaving?” the judge asked. “The pure fear that they would be brought back and forced into hard labour?”

“Precisely,” said Saldana. “Claire Headley was specifically told that she had foregone her right to leave.”

She turned to deal with something Claire Headley had said in depositions – that she thought she had enjoyed herself while working.

If you look what she had been asked, said Saldana. The question was, “Over the course of the 15 that you were there you never enjoyed one moment of your work?”

But Headley had explained that she had been trained to believe that her work was enjoyable: Scientology was all she had known since the age of four; she had signed the Sea Org’s billion-year contract (to serve Scientology in this and future lives) at the age of 16.

Against that, Saldana there was her testimony that she had been forced to have two abortions; that she had been ordered to divorce her husband; and that she had been ordered to convince a colleague to do the same; that she had been confined to base; that she had observed physical abuse of her co-workers.

So far as physical ability to leave, when they lived off-base it was at compounds patrolled and controlled by Scientologists.

And when they did try to leave they were followed.

“Marc Headley was chased off of a road, his keys were confiscated from him, it required police intervention for him ultimately to get away and even once the police were involved, he was followed by another car coming from the Sea Organization.”

“There’s plenty of evidence that demonstrates that it was incredibly difficult for them to leave regardless of whether or not they had the physical opportunity to do so,” – and that members who did leave were followed and brought back – she added.[iii]

Overcoming ministerial exception

The third judge intervened. He did not think there was anyone on the bench whose heart did not go out to her clients.

The problem, he said, was to determine if psychological compulsion was sufficient for the court to act, “…and it frankly hampers you, because we can’t look at what the Church does or doesn’t teach; we can’t look at what their doctrine is or isn’t.”

The only thing he could see in the record that might allow the court to act was that Scientology had not argued that ministerial exception prohibited a claim based on allegations of physical abuse.

That was the only thing in the file that suggested a way for the court to act without reference to Scientology doctrine, he said.

“But you are hampered in the same way. We can talk about all of the actions but we can’t talk about the doctrine because ministerial exception won’t let us talk about the doctrine.”

“You admit they were they were ministers, you admit then that because they were ministers they even went to the Sea Org of their own free will and it’s obvious from the record that they could have left the ministry at any time.

So that brought it back to the question of psychological coercion: and in order to understand the basis of that coercion the court would have to look at the doctrine – which was ruled out by ministerial exception.

Saldana disagreed that the court could not look at Church doctrine.

She cited case law indicating that when the conduct in question rose to the level of involuntary servitude or forced labor, then that was a game-changer – regardless of whether there was a religious justification offered for the conduct.

“When it is so subversive of good order and touches on such a basic constitutional right, (then) regardless of whether or not a religious justification is offered the court can examine that, because it is subversive of good order and it is contrary to the laws and policies of this country, and of basic human rights in this country.”

Saldana chose to keep back her final minutes for use after Scientology’s attorney, Eric Lieberman, had presented his arguments.

[i] She mentioned Title Seven discrimination, which is employment discrimination based on A reference to Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits employment discrimination based on race, color, religion, sex, or national origin. See the U.S. Equal Opportunity Employment Commission website.
[ii] This is of course a reference to Scientology’s disconnection, which the movement still denies is imposed upon its members. For more on this see my earlier posting: Introduction to Disconnection. Saldana’s summary of Scientology’s position sounds like it is derived from The Creed of the Church of Scientology.
[iii] All of this of course, is covered in Marc Headley’s book Blown for Good, in which he details not just his own experience but the drills used to recover other people who “blew” Gold Base.


  1. "So that brought it back to the question of psychological coercion: and in order to understand that basis of that coercion the court would have to look at the doctrine – which was ruled out by ministerial exception."

    This is not logical. Look at what they did.

  2. It's not grammatical either: have tweaked the sentence for clarity. Will try for some analysis in a later post, but I still have to cover the Scientology attorney's arguments. JJ

  3. "A Scientology spokesman had acknowledged that between 2000 and 2004 there were at least 50 instances of physical violence against members of the Sea Organization by high-ranking officials, she pointed out."

    Nice one. I like this lawyer. The judges are certainly making sure that their decision cannot be overturned by an argument as simple as that offered in the initial decision by Judge Fischer. It'll be fascinating to see how this plays out.

    I do hope that Claire and Marc prevail and that the human rights abuses will be made to stop.

  4. ChurchofCylontology11 February 2012 at 06:20

    Great summary. Any chance we can get a summary of the opposing counsel's 30 minutes?

    I said this on ESMB, but if the appellate justices ignore the abuses in the name of not touching religious doctrine they are creating a superior citizenry class, that of religious organizations/members. Just think of all the human rights abuses that religious organizations will be allowed to conduct if this case isn't sent back to trial court.

    I really hope the court does the right thing. They have to know that human rights do not take the back seat to religious doctrine. What if a satanic cult decides that human torture is a part of their religious rituals? Can no civil actions be taken but criminal culpability still exist?

    Let's hope they do the right thing.

  5. Absolutely, you'll get both sides of the pleading: I'm still writing up the second half of the hearing, but it made sense to post in two parts, as it was getting quite lengthy.

  6. “But you are hampered in the same way. We can talk about all of the actions but we can’t talk about the doctrine because ministerial exception won’t let us talk about the doctrine.” (One of the judges.)

    That is incorrect, but he may, as this level of judges like to do, be inviting Sladana's reply, which she gave. Ministerial exception only applies to the "doctrine's" policy of hiring and firing - not to anything else.

    I get like really sick of this creeping expansion of "ministerial exception" - is it that it sounds so cool to say, or what ...? When you look at it, it is nothing more than some grubby piece of office workplace labor law that really doesn't determine or establish religious beliefs at all, and if it were not for the CRA it wouldn't even exist. It is labor law, not religious doctrine, for chrissakes.

  7. ChurchofCylontology - Exactly. You got it right. That's exactly what S.C. Justice Scalia said in "Employment Division v. Smith". Although he did phrase it a little more directly and succinctly. Wikipedia the case - I think you'll love the way he put it.

  8. The judges gave Saldana a lot of opportunity to put on the record arguments that the ministerial exception as applied in Superior Court were wrong. And her arguments were correct. When a church leader beat a child and the child died, that leader stood trial because the conduct violated public policy. Likewise imagine a church that supplied teen virgins with soporific drugs to prepare them to participate in sacrificial rites.