Saturday, 11 February 2012

The Headleys on Appeal II

Scientology’s attorney argued that the Headleys could not argue psychological and social coercion based on their upbringing in the Church: that inevitably ran up against First Amendment issues.

Lieberman for Scientology

Judge Wright Nelson started Eric Lieberman off by putting it to him that there were scenarios in which ministerial exception would not apply.

“How do we distinguish this case?” she asked.

The first case she raised was the one involving Devendra Shukla, a Hindu priest awarded $2.3 compensation in December 2010 by a New York court: he had been forced into working as a virtual indentured servant for seven years in a Hindu temple in New York.[i]

Lieberman’s argument was that the case involved someone invited over to the United States work as a Hindu priest, whose visa had expired and who was then subjected to threats of being deported or even murdered.

But had never been any suggestion that the work he had been forced to do was religious, he added.

“Here, in contrast, everything … the plaintiffs did was as members of the Sea Org and every function they performed was as members of the Sea Org as parts of their labor for the Church.”

Judge Wright Nelson put another case to him; Bollard v. California Province of the Society of Jesus, a judgment from the Ninth Circuit Court of Appeals that had held that ministerial exception did not bar a case of sexual harassment.[ii]

In this case a Jesuit novice had complained of repeated unwelcome homosexual sexual advances during a six-year period by his superiors in the Jesuit Order.

In that case, said Lieberman, while some aspects of the case had been covered by ministerial exception, the Church had never claimed that the alleged sexual harassment had anything to do with their religious doctrine – quite the contrary.

But in complaints by the Headleys, Lieberman argued, those acts they described as constituting psychological and social coercion were related to their participation in their religion – Scientology.

Those coercive facts, included for example the fact that:

  • they were born into the religion;
  • they were brought up in the religion;
  • they were taught and raised to believe in making a commitment to the Sea Org;
  • they participated in the central religious practice of auditing;
  • they believed that by participating in Scientology religious practices they would be able to achieve eternal spiritual salvation;
  • they believed that through participation in the Sea Org they would be able to further the Scientology religion’s goals of a Clear Planet;
  • they believed that if they didn’t pursue those practices they would not be able to achieve spiritual salvation.
“They also point to what they say are ‘strange precepts’ of Scientology unlike those common to the general population which caused the plaintiffs to see themselves as apart from the general populations,” he added.

Coercion argument is religion-based

But if we are going to go down that road then, Supreme Court judges Justices Clarence Thomas and Samuel Alito judges had already covered these points.

They had argued that while there are numerous religions in this country that have practices that fall outside the mainstream or perhaps unpalatable to mainstream values, they are nevertheless protected by the First Amendment.[iii]

The Headleys had also referred to the lifestyle constraints of Sea Org membership itself as forming part of the coercive environment.

This included the regimented work hours, the long hours of work and the isolation from the secular world.

On this last point, he argued: “Their isolation was much less than occurs in many religious orders of nuns and monks and priests throughout the world in various religions.”

Another of the judges intervened. He was interested that Scientology was not saying ministerial exception would prohibit a claim to the extent that it relied on physical abuse: did he agree with that?

“If that were the only claim in the case,” said Lieberman.

“If the plaintiff was claiming ‘I was physically forced, seized, brought to work chain-gang style and forced to work; and there were no other factors that caused me to do that work; and I wanted to get out of there’ – and there were none of these psychological and social factors complicating the question, then we think yes, that would not be protected by ministerial exception.”

So what about the allegations of physical abuse in the complaint, asked the judge? “You think that suggests that the ministerial exception does not apply to those complaints?”

But what you have here, said Lieberman, is a much more complex picture.

The Headleys had themselves said in their own testimony that they continued to want to work at the Sea Org. “Claire Headley said she was doing what she was brought up to do,” he said.

“In 2004 – just a month or so before she left – she lost her position at the Religious Technology Center and in her own words she was distraught at losing this position, and she petitioned and pleaded and begged to be restored to the position of working for RTC which she now claims she was forced to labor at.”

They set out all these social and psychological facts, Lieberman continued: they even said their complaint would be untenable without them, because as Judge Wright Nelson had already pointed out, they were not held at the base all the time.

They had lived in various apartments off the base, travelled all over the world, owned motor vehicles, had access to telephones, Lieberman argued.

“And their response to this is ‘Well there were all these social and psychological factors that made us continue to work, including how we were brought up and what we were taught to believe,’ – and also that if they chose to just precipitously leave their Sea Org position and break their vows without following procedure set forth in Church scripture for doing so then they might be excommunicated and lose contact with their friends and family – something that as we show is not unique to the Scientology religion by any means.”

The court, he submitted, had to determine a narrow and precise issue: ministerial exception and the First Amendment barred a forced labor claim premised upon the social and psychological factors relating to the beliefs; the religious upbringing; the religious training; the religious practices; the religious lifestyle restraints of a religious order; and the rules and custom and discipline of a Church.

“This is how they presented their cases,” said Lieberman. “This is what the facts show.”

So you could not then just put all that aside and examine the allegations of physical abuse in isolation, he argued, “…because by their own case that’s not what was going on.”

So what you are saying, said one of the judges, is that despite the alleged physical abuse, they kept going because of the psychological compulsion – but any examination of the psychological and social components of their case inevitably draws the court into an examination of Church doctrine?

“That’s precisely right, your honour,” said Lieberman.

So, the judge continued, even if the allegations of abuse are true, counsel is saying that the best court can do is say, “I won’t join that church.” Was that his position?

Those are allegations of physical abuse that must be accepted, said Lieberman (because they had been accepted in summary judgment, he added, sotto voce).

But what you could not do was come to a judicial conclusion based on the factors presented to the court, he argued.

“What is not disputed in the record are all these other factors, which they say – even in this court they and even in oral argument counsel said, ‘Well it’s true Claire Headley thought she enjoyed doing this labor but she didn’t know any better because she had been brought up in the religion and it wasn’t until she got out and had other experiences that she figured out that she really wasn’t enjoying herself…’ – but she did, while she was there, she pleaded to keep her job…”

On that basis, he concluded, the ministerial exception applied and prevented the case going forward.

Saldana for the Headleys

Saldana, with her remaining time, started by addressing the distinction that the judges had drawn between physical abuse and psychological coercion.

“The crime of forced labor is so heinous and contrary to the rights of every American citizen, that no religion, no entity, no one should be allowed to engage in that act – that regardless of whether a religious justification is offered for the conduct, the court can review that because it is contrary to the laws of this country and to the basic constitutional fundamental rights of individuals.

But that seemed to contradict Elvig, said one of the judges: a reference to Elvig v Calvin Presbyterian Church, another case heard by the Ninth Circuit Court of Appeals in 2004.[iv]

That case had ruled that the First and Fourteenth Amendments of the U.S. Constitution gave churches the right to establish their own rules for the regulation of their internal affairs and the civil courts could not interfere, said the judge.

“If this is internal discipline and government of the Church and I have to look at the doctrines of it in order to make the difference, I am still having a tough time” getting there, said the judge – even with such serious allegations.

Saldana put it to the court that one could draw a line between those cases such as Hosanna Tabor and others that concerned minimum wage, labor discrimination, sexual harassment and other Title Seven issues where ministerial exception had been found to apply.[v]

“This claim concerns something that is fundamentally different,” she argued. “It is a claim of forced labor. It is a claim for involuntary servitude.”

And that’s better than a sexual harassment claim, the judge asked?

That was not the distinction I was trying to draw, said Saldana, momentarily flustered.

“This case touches a on fundamental constitutional right,” she said.

“This country was created on the basis of freedom: the 13th amendment was enacted to ban involuntary servitude and slavery, and Congress, in enacting the forced labour statute, recognised that the definition that they have given for forced labor is a crime of involuntary servitude and they are trying to address modern forms of slavery.

“And I believe that that touches on something that is much more fundamental and core to the rights of citizens in this country than a claim for a sexual harassment.”[vi]

And with that the pleadings were done.
Just a couple of points before I leave this to the legal specialists.

Headley’s team did not appear to be disputing that their clients could be considered ministers for the purposes of this case: that certainly isn’t obvious to me and it seems like a major concession.

The original complaint, drafted by attorney Barry Van Sickle argued that Scientology could not ignore minimum wage and child labor laws by virtue of being a religion.

The focus now appears to have switched to the issue of human trafficking, and one can see the logic.

In cases such as the recent Hosanna Tabor case at the Supreme Court, churches have trumped civil rights legislation on employment discrimination by using the First Amendment-derived principle of ministerial exception: the state cannot meddle with ecclesiastical affairs.

What the Headleys appear to be doing is raising them one by arguing that the First Amendment  – or indeed the Fourteenth  – does not trump the Thirteenth Amendment: the constitutional protection against slavery or, as it is better described in its modern form, human trafficking

The audio for this hearing is up at the Why We Protest site, here.


[i] See the Daily Mail’s coverage here; and this story from the New York Post. The case was heard at Brooklyn Federal Court in December 2010.
[ii] In Bollard v. California Province of the Society of Jesus, (9th Cir. 2005) a Jesuit novice complained of repeated unwelcome homosexual sexual advances during a six-year period by his superiors in the Jesuit Order.
[iii] I’m not sure of the cases he was referring to here; perhaps someone better versed in the case law can help me?
[iv] Elvig v Calvin Presbyterian Church.
[v] Title Seven discrimination is employment discrimination based on on race, color, religion, sex, or national origin. It refers to Title VII of the Civil Rights Act of 1964 (Title VII). See the U.S. Equal Opportunity Employment Commission website.
[13] The 13th Amendment reads:  1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
2. Congress shall have power to enforce this article by appropriate legislation.


  1. " ... by using the First Amendment ministerial exception ...."

    Simple journalistic error. Show me where in the 1st Amendment "ministerial exception" is mentioned. The ministerial exception is an exception to the Civil Rights Act of 1964. PLEASE report correctly. Do not make stuff up.

    Exactly as Saldana states at her opening "ministerial exception" is a very limited ruling applying only to hiring and firing with deliberate discrimination and is an "exception" to the CRA - NOT to the 1st Amendment, dammit. Get it straight.

  2. You're right of course: a little-mannered, but correct. What I meant to write was "first amendment-derived principle of ministerial exception, but I was in a hurry. Fixed.

  3. I am having a hard time understanding why the court has a problem with this case. From my law school days many years ago, there has always been a distinction between what goes on in one's mind and how that translates into action. For example, the Mormans believe in polygamy. While they are free to believe that, the government has a compelling interest in regulating that conduct and my do so. Assault, kidnapping, human trafficking are serious crimes and I can't imagine any legitimate reason for sanctioning this behavior under the ministerial exception.

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  5. As far as I can tell, they are worried about getting into the psychological/social coercion side because, as Lieberman for Scientology argued, that might be said to involve a consideration of Scientology's belief system which, he argues, activates the First Amendment-derived principle of ministerial exception. One thing I didn't mention here is that Judge Dale Fischer in a district court threw out a psychologist's report that tried to explain this context of psychological coercion. I suspect the court might also be wary of getting into arguments based on anything resembling a mind control theory: too subjective, too academically controversial. But given that the razor wire at Gold base is facing inwards, you do have to wonder why such a theory would be needed. The judges have presumably been presented with details of Scientology's punitive Rehabilitation Project Force (see my posting "The RPF: 'Scientology's Gulag'".

  6. Vincent J. Dooley -

    The language is clear that the 'generally applicable laws' trump any protestations of religous ritual. The difficulty arises in the 'conventional obtuseness', in a weird and entirely irrational, but persistent, conviction that a religion can do virtually anything it wants. This is probably rooted in medieval history when the Church WAS the State and could indeed do almost whatever it pleased. Only consensus public outrage and protest tempered it. It remains as a mind-block on a level close to the perpetuation of the myth about Bigfoot, or that the Rothschilds 'own everything'. The more "ministerial exception" is erroneously cited and repeated as justification for child slave labor and illegal imprisonment and torture, the longer the myth will hang around. I am gratified that you see that the law does not sanction violation of generally applicable law by any religious organization. It is the foundation of the separation of Church and State.

  7. Vincent J. Dooley - In addition, I interpret that a State no longer must show a compelling interest as regards law enforcement. All it must show is that a law enforcement is of "generally applicable laws" - as opposed to 'cooked-up' laws discriminatorily aimed at one specific religious organization or practice. Golden Calf worship is thus preserved and in fact guaranteed under the Constitution, but planting one on a freeway to disrupt traffic is not protected and the thing will get a parking ticket or moving violation and be hauled way to impound. Older judges may be confused and may still be applying old laws which have long since been overruled.

  8. Attorney Scott Pilutik has just tracked down and posted links to some of legal briefs:

    Hopefully he'll analyse them at his blog

  9. So what is the bottom line here? I understand the arguments as they have been presented above and clarified in the comments section. Has there been a decision yet? If so what was the finding? If there has nsot been a decision when can one be expected?

  10. I'm afraid I don't have a date for when the judgment is delivered: last time I checked, there was no set date available. But I'll be sure to cover it as soon as I get it.