Harvard Law Review revisits Headley case

A US appeals court ducked key constitutional issues when it rejected lawsuits brought by Marc and Claire Headley against Scientology, the Harvard Law Review argues.

The latest issue of the Harvard Law Review casts a critical eye over last year's appeal court ruling that threw out the case brought by Marc and Claire Headley against Scientology – and it is not impressed.

The court missed an opportunity to clarify the law in a key area, it argues, and in throwing out the Headleys' complaint failed to apply its own arguments consistently.¹

A little background is in order.

In July of last year, U.S. Court of Appeals for the Ninth Circuit rejected the lawsuit alleging forced labor brought by the Headleys under human trafficking laws.

The Headleys had served in Scientology's Sea Org, the elite cadre for its most dedicated members; that meant they had both signed the billion-year contract pledging to serve the movement in this and future lifetimes.

Marc Headley had argued that he and fellow workers were subjected to “assault, threat and menace” to make them work more than a hundred hours a week, for far less than the minimum wage.

His wife, Claire Headley, said she and several other Sea Org members had been pressured into having abortions they did not want.

Already, in August 2010 at the district court, Judge Dale Fischer had dismissed both complaints.

Since the Headleys had voluntarily signed up as ministers in the Church of Scientology, ministerial exception prevented her from considering their human trafficking claims, she argued. Ministerial exception trumped all other considerations.²

Ministerial exception derives from the US constitution's US First Amendment protecting religious freedom. The general principle is that the State must not interfere in religious matters.

The operative word in the relevant case law is “entanglement”: the state should avoid getting “entangled” in church affairs.

Scientology's lawyers had argued that ministerial exception precluded any scrutiny of their conduct, and Judge Fischer accepted this.

When the cases went to appeal, the judges there took a different view – but they still ruled against the Headleys.

The Headleys' lawyers had wanted to argue that the First Amendment could not override the Thirteenth Amendment: the one guaranteeing protection from involuntary servitude and slavery.

The appeal court did not dispute many details of the harsh regime they had endured at the Gold Base – also known as Int Base – Scientology's international headquarters in California, where the Headleys had worked.

But it still argued that the Headleys had failed to establish their case for human trafficking.

That meant the issue of ministerial exception did not even arise: so the court did not have to consider whether or not ministerial exception could trump the laws on human trafficking.³

The Harvard Law Review criticised the appeal court ruling, writing:

The court was right not to affirm the district court’s untenably broad construction of the exception. But despite its refusal to discuss the constitutional issue, the court failed to avoid the constitutional question and to analyze fully the plaintiffs’ claims. The court should have instead clarified the boundaries of the exception.⁴

Here is what it meant.

'At odds with... common sense'

A recent Supreme Court ruling on ministerial exception played a key role during arguments in the Headleys' case.

In Hosanna-Tabor Evangelical Lutheran Church and School v Equal Employment Opportunity Commission et al, the Supreme Court backed a church that had sacked its minister.

On January 11, 2012, the court unanimously ruled that the principle of ministerial exception exempted the Church from the lawsuit, which claimed employment discrimination.

The judgment did not however determine how far the First Amendment could be allowed to trump other rights.

We express no view on whether the exception bars other types of suits, including actions by employees alleging breach of contract or tortious conduct by their religious employers. There will be time enough to address the applicability of the exception to other circumstances if and when they arise.⁵

The door was open then, for other courts to look at that question – and that is just what the appeal court should have done in the Headley case, the Review argued.

As things stands, the Review noted, the jurisprudence on ministerial exception cuts a broad swathe, “...exempting doctrinally motivated aspects of the church-minister relationship from scrutiny on the ground that the Religion Clauses bar evaluation of church doctrine.

“This broad exemption puts the circuit at odds with the Supreme Court’s First Amendment jurisprudence and common sense,” it continued.

And this is where the appeal court went wrong, the Review added:

Instead of merely refusing to affirm the district court’s analysis, the Headley court should have taken the opportunity to clarify the limits of the circuit’s ministerial exception, emphasizing that some entanglement is inevitable in cases involving religious institutions and that minimal entanglement concerns should not preclude adjudication of claims.⁶

In Hosanna-Tabor, while the Supreme Court backed the principle of ministerial exception, it left open the question of how far that exception should be allowed to reach.

The Review was arguing that the Ninth Circuit had missed an opportunity to examine just this question when it considered the Headleys' complaint.

Judge Fischer's dismissal of the Headleys' cases generated a fair amount of disgust among those following the lawsuits (this website included).⁷

But the Review pointed out that her rulings, whatever their failings might be, were at least based on existing jurisprudence.

In her judgment, Judge Fischer drew on a ruling in another ministerial exception case that the Ninth Circuit had decided in 2010 – around the same time that she was considering the Headley cases.

In Alcazar v. Corp. of the Catholic Archbishop of Seattle the court had declared that “...the very process of civil court inquiry into the clergy-church relationship can be sufficient entanglement.”⁸

A few lines on, the court went even further, arguing:

Because the ministerial exception is constitutionally compelled, it applies as a matter of law across statutes, both state and federal, that would interfere with the church-minister relationship.⁹

Catch 22

This appears have operated as a kind of ecclesiastical Catch 22 against the Headleys.

The Headleys had argued that Scientology doctrine did not sanction the abuses they complained of in their complaints.

But Judge Fischer, applying the “entanglement” test in the district court, rejected this argument as circular.

Dismissing their cases, she wrote:

Determining whether Scientology’s practices of routing out, censorship, or heavy manual labor as a form of discipline, for example, constitute involuntary servitude within the meaning of the TVPA [Trafficking Victims Protection Act] is precisely the type of entanglement that the Religion Clauses prohibit.¹⁰

“The district court’s conclusion was a reasonable interpretation of Ninth Circuit precedent,” the Review noted.

The Catch 22 then, was that the very act of evaluating whether a church practice falls outside the reach of ministerial exception is itself an unwarranted intrusion into religious domain.

But there is a problem with this, as the Review points out:

Such an interpretation is practically and doctrinally untenable.

Taken at face value, this analysis would exempt the church-minister relationship from even criminal laws.¹¹

In a footnote, the Review cited an argument in another case, a reductio ad absurdum of this overblown conception of the untouchable nature of ministerial exception.

In this case, a lawyer posited a hypothetical church that selected its clergy members by forcing them to play Russian roulette. If ministerial exception really was inviolable, the lawyer argued, such a church would be exempt from the laws concerning homicide.¹²

In fact, as the Review pointed out, the Supreme Court has already ruled that ministerial exception does have limits – even if in Hosanna-Tabor it declined to offer much in the way of further guidance.¹³

The problem with the Alcazar ruling, it added, was that it had gone too far, thus permitting the kind of absurd “russian roulette” scenario cited above.

The Review article also pointed out important differences between the Hosanna-Tabor case and the Headleys' lawsuit against Scientology.

Hosanna-Tabor was about whether a church could be obliged to reinstate – or at least compensate – a minister.

The Headley case posed an entirely different question: whether the practices in Scientology's Sea Org constituted forced labor in violation of the human trafficking laws.

The Headleys' had a legitimate case to put when they argued that Scientology could not hide behind the First Amendment if it was guilty of human trafficking.

“There is a strong argument that evaluating these claims would not have created excessive entanglement,” the Review argued.

Tangled up

The appeal court had ruled that the Headleys had not even established their case for human trafficking.

The Harvard Law Review was not convinced by the court's arguments.

The article summarised the abusive conditions the Headleys were forced to endure during their time inside the Sea Org, including:

• the punitive work programmes (known as the Rehabilitation Project Force, or RPF) for members who fell foul of the Sea Org's harsh rules;
• the threat of disconnection – being cut off from all loved ones still inside the movement – if they quit Scientology without following the tortuous, official protocol;
• the physical assaults on Marc Headley;
• and the ban on having children.

The Headleys had argued that they had been subjected to physical coercion that prevented them from leaving when the wanted to. The high security at Int Base meant that they could not just walk out when they wanted to.

Crucially however, they also argued that they had been subjected to psychological coercion.

This explained why, even when they lived off-base and enjoyed greater freedom of movement, they were effectively compelled to stay inside the Sea Org.

They feared the consequences of leaving – not the least of which was Scientology's policy of disconnection.

The Review article, summarised the appeal court's position: the Ninth Circuit had stressed that the Headleys had voluntarily joined the Sea Org; that they had believed in it at that time.

The court had also argued that the Headleys had had plenty of opportunities to leave – and that when they had decided to do so, had succeeded.

For this reason, it had rejected their case for human trafficking.

But the Review noted:

Of the potentially coercive restrictions the Church had placed on the Headleys, the court discussed only one: that, should they leave, they would be cut off from the Church, family, and friends.

The court stated that this result was not a “threat... or coercion” but rather a “permissible warning... of adverse but legitimate consequences”; in other words, a church is free to “shun” a member.¹⁴

But the very fact that the court had seen fit to reach this conclusion – that shunning was an acceptable practice for a church – meant that it had evaluated church doctrine, (in this case, in a manner that favoured Scientology).

The court had thought it did not have to get “entangled” in an evaluation of the limits of ministerial exception because it had disposed of the Headleys' case for human trafficking.

But in its argument rejecting human trafficking (by accepting the legitimacy of shunning, or disconnection), it had inadvertantly smuggled in a stance on ministerial exception – one that favoured Scientology.

Whether the court liked it or not then, it was entangled.

Here is how the Review put it:

The court determined that it could not [support a force labor claim], on the basis that “shunning” is a “legitimate consequence” of leaving a church.

In reaching this conclusion, the court interpreted and defined Church doctrine, and reserved for itself the power to declare Church doctrine legitimate.¹⁵

For the Review, this mistake represented a missed opportunity for the court.

Reaching the merits without addressing the concerns of the ministerial exception may have prevented the court from fully evaluating the Headleys’ claims.

The court conspicuously failed to address the Headleys’ psychological coercion argument, avoiding a discussion of the majority of the Church practices that the Headleys alleged contributed to their forced labor.¹⁶

So instead of “giving short shrift” to the Headleys' arguments, the court should have tackled the ministerial exception question, the Review argued.

Most importantly, it should have revisited its overbroad entanglement analysis and emphasized that the Establishment Clause prohibits only excessive entanglement.¹⁷

That would have helped set the boundaries for future cases, because it is clear that as things stand, the ministerial exception is being applied too broadly, it added.

Ministerial exception should not then be seen as a kind of get-out-of-jail-free card that trumps any consideration of the rights of plaintiffs.

Strict scrutiny of such cases was not just necessary but desirable to get the balance right.

But the appeal court had missed a chance to provide some guidance to the district courts.

Is the tide turning?

The Supreme court, in its Hosanna-Tabor ruling, was quick to dismiss fears that recognising ministerial exception in this case would leave the door open to wider abuses.

The plaintiff in the case, supported by the Equal Employment Opportunity Commission (EEOC), had argued that if the court ruled for the church would effectively grant churches “unfettered discretion” to violate employment law – for example by hiring children or foreigners.

The court ruled that this “parade of horribles” could be dealt with in future cases, as and when the issues arose.¹⁸

The problem is that the Headley case appears to have presented just such a “parade of horribles”.

Bear in mind, for example, that they were minors when they first signed up for the Sea Org – not an uncommon event in Scientology.

The Ninth Circuit, given no clear guidance from the earlier Supreme Court ruling, dropped the ball.

It is true that the court suggested that the case might have had better success if it had been filed along different lines. Noting the abandoned claims under federal and state minimum wage laws, it added:

...although the Headleys marshaled evidence of potentially tortious conduct, they did not bring claims for assault, battery, false imprisonment, intentional infliction of emotional distress, or any of a number of other theories that might have better fit the evidence.¹⁹

As we have seen however, the Review article argues that the court improperly dismissed the human trafficking claims the Headleys had advanced.

And in a footnote that arguably deserves greater prominence the Review reinforces its criticism of the Ninth Circuit's position.

Here, it points out that the court did not trouble to discuss the Headleys' allegations that Scientology “disciplines members considering leaving Sea Org, that the Church surveils and restrains members, or that Sea Org officers create an atmosphere of physical and emotional abuse.

“Instead, the court focused on the physical ability of the plaintiffs to leave Gold Base.”²⁰

The trouble with this approach, the Review argues, is that it ignores the fact that the Trafficking Victims Protection Act allows for psychological as well as physical coercion.

“Further, it is questionable that an objective ability to leave satisfies the requirements of the TVPA’s subjective test, which demands consideration the view of a 'reasonable person of the same background and in the same circumstances.'”

In other words, it's all very well for the judges to say that the plaintiffs could have walked away at any time – but they have not stood in the Headleys' shoes.

Any number of former Sea Org members could have told them better.

To some extent, the analysis in this article supports the arguments advanced by Kathryn Saldana of the Metzger Law Group, who represented the Headleys during oral pleadings to the Ninth Circuit.

As reported here at the time, Saldana disagreed with the suggestion 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.

“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.”

Scientology was trying to have it both ways, she argued.

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.”²¹

In the end though, Scientology got away with it because the Ninth Circuit dodged the tough choices.

The Review has set out what it believes were the flaws in their reasoning.

One is left with the distinct impression however that this was as much a failure of nerve as anything else: the court was simply not prepared to grasp the constitutional nettle.

All the signs are however, that in the another lawsuit involving a former Sea Org member, Scientology is not going to get such an easy ride.

Lawyers for Laura DeCrescenzo have been piling on the pressure to get Scientology to release key documents in the case – and the court has rejected the movement's argument that they are protected by priest-penitent privilege.

After all, it is the “penitent” – DeCrescenzo – who wants to see them.

I have outlined her complaint in previous coverage at Infinite Complacency.²²

For more up-to-date coverage however, see Tony Ortega's coverage at the Underground Bunker, and attorney Scott Pilutik's analysis at his blog, Reality-Based Communities.

Time permitting, I'll return to the case at a future date.

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Previous coverage of the Headleys

Marc Headley's Lawsuit (January 2009)

Marc Headley's Story (January 2009)

Claire Headley's Lawsuit (March 2009)

LA Press Conference: Marc Headley's Speech (March 2010)

Legal Update: the Headleys (August 2011)

Supreme Court backs Ministerial Exception (January 2012)

The Headleys go to Appeal (February 2012)

The Headleys on Appeal I (February 2012)

The Headleys on Appeal II (February 2012)

Appeal Court rejects Headley Lawsuits (July 2012)

Reviewing the Headley Ruling (August 2012)

Headleys' Supporters Rally Round (September 2012)

1   “Ninth Circuit Avoids Constitutional Question, Holding that Ministers Did Not State a Claim that Church of Scientology Violated Trafficking Victims Protection Act. — Headley v. Church of Scientology Int’l, 687 F.3d 1173 (9th Cir. 2012).” Harvard Law Review, Volume 126, May 2013, Number 7, pp 2121-2130.

2   While Judge Fischer in the district court issued separate rulings rejecting the lawsuits brought by Marc Headley and Claire Headley, at the appeal court level the cases were considered together.

3   You can find the full Ninth Circuit judgment at the court's website.

4   Page one of the article, page 2121 of the Review.

5   Page 21 of the judgment, which you can find at the SCOTUS website, here. Its ruling, handed down on January 11, 2012, reversed an appeal court ruling against the church.

6   This and the precedings quotes from page five of the article (page 2125 of the Review).

7   See for example “Legal Update II: the Headleys”, where I cite lawyer and blogger Scott Pilutik's argument that Judge Fischer's reasoning was circular; that it begged important questions: for example, he asked, how stringent is Scientology's recruiting system given the fact that the Headleys signed up while still minors?

Following up, I noted: “Critics of ministerial exception have already argued that it was never intended to give churches cover for abusive practices. The way Judge Fischer sees it, it looks like a get-out-of-jail-free card.”

8   From page 7 of the ruling, listed at the court's website as Rosas v. Corporation of the Catholic Archbishop.

9   From page 8 of the same ruling.

10   From page 8 of each of the August 2010 district court rulings against the Headleys (see above for links to the judgments).

11   Page 7 of the paper; page 2127 of the Review.

12   The hypothetical “Russian roulette” counterfactual is from Minker v. Baltimore Annual Conference of United Methodist Church 894 F.2d 1354 (D.C. Cir. 1990). See note 58 of the Harvard Law Review article (at the bottom of page 7/2127).

13   Page 5 of the paper (page 2125 of the Review).

14   Page 4 of the article (page 2124 of the Review).

15   Pages 8-9 (2128-2129) of the article.

16   Page 9 (2129) of the article.

17   Page 9 (2129) of the article.

18   See page 20, Part IV of the Supreme Court's Hosanna-Tabor judgment.

19   It is in the closing paragraph that the court suggests that the evidence presented might have been better applied to any one of a number of other offences. This is an issue I deal with in more detail elsewhere on this site. See “Reviewing the Headley Ruling”

20   Note 67, page 9 of the article (p2129 of the Review).

21   From her oral arguments to the appeal court in “The Headleys on Appeal I”; for Scientology's reply and her response, see “The Headleys on Appeal II” elsewhere at this site.

22I    I first covered Laura DeCrescenzo's lawsuit when it was launched, in April 2009.

Laura DeCrescenzo's Lawsuit (April, 2009)

But see also: Lawsuits Updated: DeCrescenzo (August 2011)

For her personal account of what she went through see: LA Press Conference: Laura DeCrescenzo's Speech (March, 2010)

When the Supreme Court gave its ruling in the Hosanna-Tabor case (mentioned above) I examined it to try to understand how their take on ministerial exception might effect the Headley and DeCrescenzo cases:

Supreme Court Backs Ministerial Exception (January 2012).

As soon as I have a spare a moment, I'll rearrange the sections on the right-hand side to make it easier to find articles related to the various lawsuits.