Tuesday 31 January 2012

Paris Appeal Trial III

The judge in Scientology’s Paris appeal trial deferred a decision on French counter-cult group UNADFI’s status at the trial, effectively allowing them to play a full role in proceedings – a major blow to the defence.

The proceedings on Tuesday, November 15, were markedly more civilized than the shouting match that closed the previous week’s session

After all the sound and fury that had brought the last hearing to a close, the fifth day of the trial was something of an anti-climax.

But when the dust had settled Olivier Morice, lawyer for the French counter-cult group UNADFI, was still standing.

Five days earlier, the seven defence lawyers for the five Scientologists and two Scientology organisations appealing their sentences had spent three hours attacking a request by the counter-cult group UNADFI to be granted plaintiff status.

Olivier Morice, lawyer for UNADFI (the National Union of Associations for the Defence of the Family and the Individual, Victims of Cults) had tried to reply. But within minutes he was having to shout to make himself heard over repeated defence objections.

At issue was whether Morice had filed papers in the case to show that UNADFI had changed its statutes in such as way as to make it eligible to apply for plaintiff status in the trial.

Such was the uproar, Judge Claudine Forkel had been forced to suspend the hearings. She, the lawyers and the batônnier, a senior lawyer who acts as mediator, had disappeared into chambers to try to settle the issue – and immediately afterwards, proceedings had been adjourned.[i]

As soon as Tuesday’s hearing reopened, the defence lawyers tried to return to the issue – but Judge Forkel was having none of it. Whatever had happened during that closed-door session, she was satisfied with what she had heard and whatever inquiries had been subsequently made.

“This incident is closed,” she declared emphatically.

Morice was not the only lawyer showing signs of impatience. The prosecutor Hugues Woirhaye, while he had kept his interventions to a minimum, had made no attempt to hide his growing exasperation.

Maître Olivier Saumon, lawyer for the National Order of Pharmacists, the only remaining plaintiff in the case, did not look happy either.

He had been very much a spectator in this last dispute, but it was clear from his manner that his patience with the defence manoeuvres was wearing thin.

After all, in four days of hearings – four days of procedural motions and arguments – the court had still not started considering the actual facts of the case.

Since Morice had been prevented from setting out his arguments at the previous hearing, Judge Forkel gave him the floor.[ii]

The defence, he noted, seemed determined to get UNADFI – and himself, as their lawyer – out of the courtroom.

For three hours, he said, the court had been subjected to a caricature of the true situation.

After all the invective that had been launched against the association, it was worth going over UNADFI’s credentials again, he said.[iii]

The defence had tried to portray the group as some kind of threat to public order, he said: but UNADFI’s public service role had been formally recognised by the government.[iv]

In fact it was Scientology’s methods and practices that had come under scrutiny in several parliamentary reports, he said.

He cited a number of court cases involving cult-related abuse in which UNADFI had played a key role.

He went over the much-disputed issue of UNADFI’s change of statutes, which he insisted did allow it to be admitted as a plaintiff in the case. And he cited a recent case involving anti-corruption activists Transparency International that set out on what grounds associations with a legitimate interest in an case could be admitted as plaintiffs.[v]

And he denounced what he said was a longstanding, systematic campaign of attacks by Scientology against UNADFI, its presidents over the years and its senior officers.

Following one such attack, former UNADFI president Janine Tavernier had launched a successful defamation action against the Scientology magazine Ethique et Liberté, he noted.

With the last individual plaintiff in the case having settled with Scientology since convictions in 2009 (his own client, Aude-Claire Malton) Scientology was doing everything it could to ensure that he – and UNADFI – could play no further part in proceedings.

The defence had spoken about equality of arms, he said: but if UNADFI was excluded from the proceedings there would be no one to explain Scientology’s techniques to the court.

For Morice, the defence strategy was clear. “Now they want at all costs to stop anyone explaining how Scientology works.”

Picard “does not exist”

Morice took about an hour to state his case. When he was done, Judge Forkel invited comments from the prosecutor, Hugues Woirhaye.

So far as he was concerned, UNADFI’s papers were in order: he had seen associations with fewer credentials than theirs accepted as plaintiffs, he said.

Eric Roux, the Scientologist speaking for the Celebrity Centre, one of the movement’s two organisations appealing its conviction, asked to address the court.

If he were a Jew or a Muslim, he said, and someone had spoken about him in the terms used against Scientologists in court today, it would never have been allowed.

“Scientology is a religion,” he said. “We didn’t come here to be insulted.”

Judge Forkel set him right.

“You are here because you are appealing a court judgment,” she said.

She had heard three and half hours of arguments on this issue, she said. “I don’t want any more of last week’s pleading.”

But Maître Gérard Ducrey, for the defendant Sabine Jacquart, had a go anyway.

He launched into a denunciation of what he said was the unpleasant political context surrounding the current trial, and was just beginning to detail recent left-wing funding for UNADFI when the judge broke in.

“You’re off the subject,” she said, calling him to order.

The defence lawyers returned to the attack on Morice personally, suggesting that he had not submitted the papers relating to UNADFI’s statues to the court as he had claimed.

Maître François Jacquot, for the defendant Alain Rosenberg, argued that under UNADFI’s own statutes Catherine Picard had not been correctly voted in as president and therefore had no standing to represent the organisation. There had been too many board members at the meeting in question, he said.[vi]

“Mme Picard has no mandate,” he declared. “She does not exist.” UNADFI’s bid for plaintiff status was, therefore, “radically inadmissible”.

Maître Ducrey returned to the attack, arguing that the court’s good faith had been abused, that vital documents concerning UNADFI were not available.

By now the prosecutor Woirhaye was losing patience. They hadn’t raised this issue at the original trial, he growled.

The defence kept up their barrage: it was not their fault if proceedings were dragging on, said one lawyer. It was down to Morice’s flagrant bad faith, his ill will: if he had provided the documents they were requesting, none of this would be necessary.

“We are not being legalistic for the sake of it,” said one. “We are trying to get the law applied properly.”

After this fresh onslaught – which took up another hour of court time – it was Morice’s turn once more.

The defence had a nerve accusing him of trying to deceive the court, he said.

They had tried to mislead the court by saying that UNADFI had never been granted plaintiff status in a court case.

They knew for a fact that this was not true, because it was in a case involving Scientology that UNADFI had been recognised as plaintiffs. (That may have been overturned by the Court of Appeal, he said: but UNADFI had since changed its statutes.)[vii]

Scientology, he said, had been wasting the court’s time with procedural motions for days now: talk about self-righteous!

« Quels donneurs de leçons! Quels donneurs de leçons ! »

What they were really trying to do was delay the time when the court would actually start to examine the facts of the case.

Judge Forkel announced her decision: the issue of UNADFI’s status in the case would be deferred until the judgment in the case had been handed down.

For the defence, that was almost as bad as UNADFI being accepted outright.

It meant that the association – and Morice – would continue to play a full part in the proceedings even if their application was eventually rejected.

Maître Jean-Marc Florand, representing the Scientology Celebrity Centre (ASES CC) immediately lodged what a ninth QPC (Priority Question of Constitutionality): the court had by now rejected all eight previous submissions.

Florand argued that by delaying the decision on UNADFI’s status, the court had effectively granted it a full role in the trial and so tipped the scales against the defence.

His colleagues, supporting the QPC, went over the arguments presented earlier: the Carlos trial, the Tiberi case, the justice ministry circular, equality of arms.[viii]

Tiberi, said Morice? Carlos? We need to end the QPC parade.

Proceedings were adjourned to Thursday, November 17: the sixth day of the trial.

[i] See the previous posting, The Appeal Trial II.
[ii] The first remarks here, Morice actually said in the first 10 minutes of his presentation at the previous hearing, before being interrupted by the defence. For ease of presentation I have incorporated them into his resumed speech to court.
[iii] He cited among others Les Sectes et L’Argent a 1999 parliamentary report.
[iv] UNADFI has received official recognition of its public service role from the interior ministry, where it is listed as an association: reconnues d'utilité publique (ARUP).
[v] On November 9, 2010, France’s Supreme Court, le Cour de Cassation, overturned an appeal court ruling that had rejected a bid by Transparency International from being plaintiffs in a case concerning property and other assets that had allegedly been corruptly acquired in France by a number of African rulers and their cronies – the “biens mal acquis” case. You can see TI’s media release on the ruling here.
[vi] Catherine Picard had testified in her capacity as president of UNADFI at the original trial (see my earlier posting Picard for UNADFI). If Maître Jacquot could establish that she had not been properly elected as its president then it had a bearing on the fairness of those proceedings.
[vii] This was a case in which the Spiritual Association of the Church of Scientology of Ile-de-France  (L’Association Spirituelle de l’Eglise de Scientologie d’ile de France, ASESIF) was convicted of a violation of the data protection laws for having kept personal data on their records when the people in question had specifically requested it be removed. Convicted in 2002, the case was confirmed at the Paris Court of the Appeal the following year and by the Supreme Court (le Cour de Cassation) in 2004. UNADFI had been accepted as a plaintiff at the original trial, but that ruling was overturned on appeal and its exclusion was confirmed en cassation. 
[viii] You will find the Carlos reference in the previous posting, Paris Appeal Trial II; the reference to Tiberi in the notes to The Paris Appeal Trial I; the justice ministry circular in both – and more extensively in my coverage of the run-up to the trial Preparing the Ground.

Monday 30 January 2012

Paris Appeal Trial II

Scientology’s lawyers took three hours to attack counter-cult group UNADFI’s bid to be admitted as a plaintiff in the Paris appeal trial. Ten minutes into their lawyer’s response, the proceedings degenerated into a shouting match.

The first three days of Scientology’s trial on appeal had been taken up with a flurry of defence motions trying to get the case abandoned or at least postponed: all to no avail.

Judge Claudine Forkel rejected them all, describing at least one of them “devoid of any serious character”.

Undeterred, the defence had filed fresh motions to the same end.

But on Thursday November 10, the fourth day of proceedings, things began to get personal.

Oliver Morice had at the original trial represented both UNADFI (the National Union of Associations for the Defence of the Family and the Individual, Victims of Cults) and one of the individual plaintiffs, Aude-Claire Malton.

But the court had denied UNADFI the status of injured party, or plaintiff, in the case, a decision it handed down after the trial in the body of its main judgment.

At the original trial, Malton had told how the movement, in the space of just four months in the summer of 1998, had managed to get more than 140,000 franc (21,000 euros) out of her.

Her testimony, the distress and confusion she showed during her time in the witness box, had packed a considerable emotional punch – and it had been widely reported.

Wisely, the defence lawyers had treated her with kid gloves, making no concerted attempt to attack her credibility.

This time however, Scientology had spared itself the embarrassment of having Malton testify to her ordeal: they had reached a settlement with her and she had withdrawn from the case. Her story remained in the files of course: but this time she would not be there to tell it.

That left Morice with just UNADFI as a client – and as things stood, they had no standing in the case. So UNADFI, through Morice, renewed its application to be accepted as a civil party. And Scientology, of course, objected.

They knew that if the court decided to reject UNADFI’s application, Morice would have no business in court – and that would considerably improve its chances during the trial on appeal.

As effective as the prosecutors had been at the original trial, they did not have Morice’s in-depth knowledge of cult issues, gained from more than a decade representing UNADFI.

Maître Olivier Saumon, for Order of Pharmacists, had a perfect grasp of his part of the case concerning the illegal practice of pharmacy: but he could not match Morice’s knowledge of Scientology.

At the original trial, Morice had used a file of embarrassing quotes from Scientology’s founder L. Ron Hubbard to great effect.

Scientology had called two expert witnesses to testify to the effectiveness of the electrometer – the device used in the movement’s therapy sessions.

Morice had confronted them with some of Hubbard’s more extravagant claims for the device, and both of them had distanced themselves from his hyperbole – one of them rubbished it out of hand.[i]

And some of the most compromising passages that Hubbard had written on the subject of hard sell – some of which eventually ended up in the court’s judgment – were ones that Morice had introduced into the record.[ii]

With Malton gone, this time around keeping UNADFI out of the trial meant excluding Morice too. Judge Forkel could always refer to the documents filed in the original case. But if Morice had no standing in court, the lawyer with most knowledge of the movement would be out of the proceedings.

That is how much was at stake.

The seven lawyers for the five Scientologists and two Scientology organisations appealing their convictions began a three-hour assault on UNADFI’s standing in the case – and, at times, on Morice himself.

Equality of arms

More than one lawyer pointed out that UNADFI had repeatedly been refused the status of plaintiff in a string of previous cases.

The organisation actually changed its statutes to try to meet the objections that had led to its exclusion in the past, but that was too little, too late, the defence argued.

Louis Pamponnet, the lawyer defending SEL, Scientology's network of bookshops, compared the situation facing Scientology with a case involving Carlos, the convicted terrorist, which had recently returned to the French courts.

An association representing victims of terrorism had had its application for plaintiff status refused on grounds similar to those that had disqualified UNADFI in the past, he noted.

“How can we tolerate a situation in which Carlos doesn’t have to put up with an association that has nothing to do with the trial, but if you are Scientologist… ?”

Scientologists should enjoy the same kind of legal protection afforded the convicted terrorist Carlos, he argued.[iii]

Excluding UNADFI from the case would allow for a tranquil debate he argued: the court would able to consider the case without the prejudice normally shown towards Scientology.

Another defence lawyer argued that granting UNADFI plaintiff status would violate the principle of the separation of powers: the executive branch of the state should not interfere in the judicial process.

The argument here was that Catherine Picard, the head of UNADFI, was part of the steering committe of MIVILUDES, the government's watchdog in the area of "cult-like tendencies" which is attached to the prime minister's office. Her duties included helping to educate lawyers and law enforcement officers in the issues surrounding cults in general – and Scientology in particular.

More than one lawyer jumped on comments made to the media by Picard after the trial. Asked if UNADFI would appeal the decision to deny them plaintiff status, she said yes, while appearing to concede that they did not have a leg to stand on.

For the defence, this confirmed that UNADFI was simply looking to use the courtroom as a platform from which to continue a high-profile campaign against Scientology.[iv]

All this amounted to an unacceptable muddying of the waters between the legislative and the executive, they argued. It was a question of equality of arms in the courtroom – one of the most basic rights of the defendants.

Maître Gérard Ducrey, for the defendant Sabine Jacquart accused UNADFI of practising exactly what it accused Scientology of – infiltrating the state apparatus.

Pamponet described UNADFI as a parasite, using the trial as a platform to advance its own arguments when it had no legitimate business in the courtroom. Its presence at the trial would pollute the proceedings and make a fair trial impossible, he argued.

And for just that reason they urged the judge not to follow the lower court’s decision to defer judgment on this question until after the case had been heard: that would let UNADFI's lawyer Morice into proceedings where he no longer had any business, they argued.

Again, they raised the issue of the justice ministry circular, the subject of a procedural motion already rejected by the court the previous week.

The five-page document, on "...vigilance and the struggle against cult-like tendencies" does not mention Scientology by name. But the defence argued that by issuing it in the months leading up to the trial, the executive had effectively put pressure on the court as to how they thought the case should go.[v]

And one defence lawyer complained that Morice had filed crucial papers relating to his bid to get UNADFI admitted as a plaintiff at the last possible moment – that he had not acted in good faith.

Along the way, there was a lot of French and European law also cited – but the main point, repeatedly hammered home by the defence, was that time and time again the courts had denied UNADFI the status of plaintiff. There was no reason to change that now, they submitted.

Battle Royale

Morice had sat quietly while the defence fired their salvoes: then it was his turn.

But only 10 minutes or so into his presentation, as he started to deal with the attacks on his own conduct, the situation quickly deteriorated.

Morice had denounced what he saw as the time-wasting tactics of the defence in lodging multiple procedural motions such as the QPCs.

The defence had turned that back on him, accusing him of having failed to provide vital documents relating to UNADFI’s change of statutes in good time.

It was he, and not Scientology’s lawyers, who was guilty of bad faith, they argued: for it had only been at the 11th hour that he had offered fresh grounds for his application, giving the defence little or no notice of his change of tactics.

It was when Morice tried to rebut this charge – arguing that the papers in question had long been among the case documents – that things got out of hand.

Furious defence lawyers tried to interrupt him, shouting him down as they accused him of trying to introduce new documents on the sly.

Morice clearly resented the accusation and, having sat through three hours of their pleadings already, took umbrage, giving as good as he got. The proceedings quickly degenerated into a shouting match.

In a bid to restore order Judge Forkel threatened to call in the batônnier, a senior lawyer attached to the court who mediates courtroom disputes such as this one.

The defence readily agreed, convinced of their case, so the judge adjourned proceedings. Shortly afterwards the judges, the lawyers and the bâtonnier all disappeared into chambers to thrash it out in private.[vi]

When they emerged, a little later the judge adjourned the proceedings again until the following week, November 15:  something clearly needed looking into.

But that meant the appeal would be entering its fifth day – a trial originally scheduled to run until December 1 – without actually having started to look at the facts of the case.

It looked very much as if the trial was going to run over schedule. With that in mind then, the judge started checking dates with the lawyers and pencilled in four extra court dates towards the end of the month.

As things turned out, they weren’t needed.


[i] Two experts called by Scientology were happy to testify that the e-meter was a perfectly effective measuring device and were intrigued by the way it appeared to measure emotional responses.
Morice read them, in turn, one of Hubbard’s more extravagant passages in which he claimed that the e-meter: …utterly dwarfs the invention of the microscope, for Leeuwenhoek found the way only to find bacteria; the electropsychometer provides the way for man to find his freedom and to rise perhaps to social and constructive levels of which man has never dreamed and to avoid the perils in that route which man, in going, would have found more deadly than any bacteria ever evolved or invented.
Philip Ripoche, the first expert to testify, felt obliged to describe this as: “A far-fetched, ambitious and laughable stream of verbosity” (“une logorrhée fantaisiste, ambitieuse et risible”).
The other expert, Bernard Denis-Laroque, confronted with the same passage, conceded that inventors sometimes had a tendency to overplay their inventions.
“There, clearly he went a bit too far,” he said (…il est allé un peu fort).
For more details and the full references, see The E-Meter Experts.
[ii] Many of these, admittedly, also feature in earlier fraud convictions against Scientologists in Lyon and Marseille in the 1990s. But compare Morice’s summing up in the original trial to my analysis of the judgment and you will see the fruits of his work.
[iii] This was a reference to la Fédération nationale des victimes d'accidents collectifs, or Fenvac. They were refused because although they had been set up in 1994, it was only recently that they had decided to expand their role to representing the victims of terrorism in court. For this they had recruited Françoise Rudetzki, herself badly wounded in a 1985 terrorist attack who had founded SOS Attentats to get better support for people caught up in such attacks. She had only dissolved that organisation in September 2008.
The court in that case had ruled that the law required Fenvac to have been active in its role of representing terrorism victims for at least five years before it could act as plaintiffs in a court case – and they had only adopted that role a few months earlier. The defence in the Scientology case argued that the same objection held in this case: UNADFI may have changed its statutes, but only recently. So, they argued, if the court granted UNADFI its request, it would effectively be stripping the Scientologists of their rights as defendants – rights that even Carlos had been granted.
[iv] For more on Picard and why Scientology detests her so much, see my report on her testimony at the original trial. The defence also took a passing swipe at Georges Fenech, the head of MIVILUDES and another of Scientology's bête noires. Fenech acquired his expertise in this field when he acted as investigating magistrate in the 1990s in the manslaughter and fraud case brought in Lyon over the suicide of Patrice Vic, which ended in multiple convictions.
[v] Curiously, as some defence lawyers argued for the separation of powers, one made use of a comment by Emmanuelle Mignon, who in 2008, when she chief of President Nicolas Sarkozy's cabinet, described the question of cults as a “non-problem” to argue that UNADFI’s presence was superfluous. (There was no mention though, of the storm of protest this comment provoked and Mignon’s subsequent departure from her post a few months later. For more on this see my review of Emmanuel Fansten's book, Scientologie: autopsie d’une secte d’Etat.)
[vi] One reason the bâtonnier has a certain standing is because he or she is elected by their peers. They mediate disputes not just between courtroom lawyers, as in this case, but between lawyers between lawyers and their clients. It is the bâtonnier’s job to knock heads together to get a solution. For more details on their role see this page on the Order of Paris Lawyers website (in French only).

The Paris Appeal Trial I

 Scientology had  vowed to expose the case against them as empty. In court however, the procedural motions launched by their  lawyers' delayed any examination of the facts of the case.

Scientology had vowed to expose the hollowness of the case against it.

When the battle returned to the courtroom however, the movement’s lawyers seemed determined to avoid returning to the facts of the case, on that day and – if at all possible – on any other.

On Thursday, November 3, the first day of the trial on appeal, the court had a request before it to have the case postponed by three to six months because of a circular issued to the justice ministry on the legal remedies against cults.

Although Scientology was mentioned nowhere in the five-page document, the defence argued that this was a blatant attempt by the executive to put pressure on the court – and they blamed the government’s cult watchdog Miviludes.

The circular, they argued, had “pre-condemned the Church, without naming it,” said a statement issued the day the trial started. “For the defence lawyers, the court cannot serenely examine the case under such executive pressure, brought about by Miviludes,” it said.[i]

President of the court Judge Claudine Forkel, together with her two judge assessors Patricia Richet and Didier Safar, felt sufficiently serene: motion denied.

Next, Maître Gérard Ducrey, for the defendant Sabine Jacquart, argued that the case should be referred to the Constitutional Court because the case had dragged on too long, which prejudiced his client. It had been 13 years since the first complaint was filed, in 1998, and the facts in question dated back more than 10 years, to between September 1997 and 1999, he argued.[ii]

This was the first in a series of Questions de Prioritaires de Constitutionnalité (Priority Questions of Constitutionality, QPCs), a procedural measure intended to ensure that defendants’ rights are respected at every stage of their trial.

If the appeal court were to decide that a valid issue had been raised, the judge could halt the trial until the matter had been referred to Cour de Cassation, the Supreme Court, for a ruling.

Scientology’s lawyers were to make liberal use of this new tool, to the growing frustration of the lawyers on the other side.[iii]

On Friday, November 4, the second day of the trial, Ducrey introduced a second QPC, arguing that the delay of the trial had extended the time before which any conviction would become “spent”, and thus expunged from the record. This too compromised his client’s rights, he argued.

The same day Louis Pamponet raised three other QPCs on behalf of his client, Scientologie Espace Librarie (SEL), Scientology’s network of bookshops.

Enlisting the help of the greatest minds of the Enlightenment, he quoted liberal doses of Montesquieu and Beccaria to argue that SEL could not be held responsible for the offences for which they had been convicted, which in any case did not exist at the relevant time.

Where there was any doubt over the interpretation of the relevant law, the court should rule in favour of the defendant, he added.

For the prosecution, Hugues Woirhaye opposed any delay of the trial. Olivier Morice, for UNADFI (the National Union of Associations for the Defence of the Family and the Individual, Victims of Cults), denounced the tactics as shameless time-wasting.

The defence motions came to nothing: when the court reconvened the following week on Tuesday November 8 – the third day of the proceedings – all five motions were denied.

Ducrey immediately filed a reformulated version of his QPCs, Pamponet submitted another and their colleague Maître Jean-Marc Florand, filed his own on behalf of the Celebrity Centre, the other Scientology body convicted.

Scientology also maintained the pressure outside the court, releasing a statement within hours of the day’s proceedings. The court’s rulings, they said, were the first response to the question they had posed at the start of the trial, namely: can Scientology get a fair trial in France?

Scientology was not afraid of a debate on the facts of the case, it added: but they wanted proceedings to go ahead on conditions that guaranteed a fair trial, “respectful of the rights of the defence, of public freedoms and fundamental rights.”[iv]

Three days into the trial however, the court was no closer to the heart of the matter.

[i]The Church of Scientology seeks the postponement of the case to a later date”: French-language Scientology statement, November 3, 2011.
[ii] Ducrey raised the case of the former mayor of Paris, Jean Tiberi, and his wife Xavière: convicted of electoral fraud in 2009, in September 2011 – only a couple of months before Scientology’s trial on appeal had opened – they had managed to get their appeal trial delayed on exactly the same grounds. But in December, the Cour de Cassation, France’s Supreme Court, decided against referring the matter to the Constitutional Council. The Tiberis’ appeal trial is scheduled to go ahead in November 2012.
[iii] QPCs were introduced to French law in March 2010, which is to say between the original convictions and the trial on appeal.
[iv] Celebrity Centre expects serene and impartial justice: French-language Scientology statement issued November 8.

Monday 23 January 2012

Supreme Court backs ministerial exception

Churches are exempt from employment law requirements regarding their ministers, says the U.S. Supreme Court, in a case that has implications for former Scientologists suing the movement. But key issues still need to be tested.

The U.S. Supreme Court this week backed a church that sacked its minister, confirming that the principle of ministerial exception exempted them from a lawsuit claiming employment discrimination.

The Supreme Court delivered its unanimous opinion in the Hosanna-Tabor Evangelical Lutheran Church and School v Equal Employment Opportunity Commission et al on Janary 11, overturning an appeal court ruling against the church.

But the ruling, written by Chief Justice John Roberts Jr., did not offer a fixed definition of what it is to be a minister.

And it is still not clear – whatever the judgment says – just how far the First Amendment rights protecting religious freedom will be allowed to trump other rights.

The opinion does however appear to leave the door open for future cases involving former church employees.

But even if ministerial exception only applies to employees considered ministers, one crucial question remains unanswered: who qualifies as a minister?

The Court ruled that Hosanna-Tabor Evangelical Lutheran Church and School could legitimately invoke the principle of ministerial exception to get a case brought against it by a former teacher-minister dismissed.

Ministerial exception derives from the First Amendment of the U.S. Constitution, which prevents the state meddling in Church affairs: this ruling means that churches are not subject to the strictures of employment law in dealing with their ministers.

In this case Cheryl Perich, a teacher with the church, tried to come back to work after a period off for medical reasons. When she was told the post was no longer available, she threatened legal action. She was sacked and so she sued.

The church argued that her threat of legal action had violated a Church tenet that disputes should be settled internally.

By the time the case got to the Supreme Court, the issue turned to a large extent on whether or not Perich could be considered a minister.

While the Court decided that she was, it added:

We are reluctant, however, to adopt a rigid formula for deciding when an employee qualifies as a minister. It is enough for us to conclude, in this our first case involving the ministerial exception, that the exception covers Perich, given all the circumstances of her employment.[i]

The Equal Employment Opportunity Commission (EEOC), who backed Perich in her lawsuit, had tried to argue that the church had cited religious grounds simply as a pretext for dismissing her.

But that missed the point of ministerial exception, the court ruled.

The purpose of the exception is not to safeguard a church’s decision to fire a minister only when it is made for a religious reason. The exception instead ensures that the authority to select and control who will minister to the faithful – a matter “strictly eccle­siastical,” … – is the church’s alone.[ii]

A “parade of horribles”

The Supreme Court also rejected the argument from the EEOC and Perich that recognition of ministerial exception in this case would mean churches could get away with all kind of offences – or as the court put it, rather patronisingly, “a parade of horribles”.

It did not accept the EEOC’s argument that:

…the logic of the exception would con­fer on religious employers “unfettered discretion” to vio­late employment laws by, for example, hiring children or aliens not authorized to work in the United States.[iii]

It appeared more persuaded by Hosanna-Tabor’s argument that ministerial exception would in no way

…bar criminal prosecutions for interfering with law enforcement investigations or other proceedings.

Nor, according to the Church, would the exception bar government enforcement of general laws restricting eligibility for employment, because the excep­tion applies only to suits by or on behalf of ministers themselves.[iv]

Concluding, the judgment said:

The case before us is an employment discrimination suit brought on behalf of a minister, challenging her church’s decision to fire her. Today we hold only that the ministe­rial exception bars such a suit.

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.[v]

It is this part of the judgment that appears to leave the door open to further cases against churches.

If you want to take a glass-half-full approach, you can take comfort from that last passage – that, and the court’s view that ministerial exception cannot be allowed to act as a shield for church abuses.

That’s what the Tabor church argued at least: and the court seemed persuaded.

The court seemed equally impressed by the church’s reassurance that ministerial exception only applied to – well, ministers.

But that begs the question: who gets to say who qualifies as a minister?

Explicitly declining to offer a one-size-fits-all formula to settle the issue, the Supreme Court’s ruling nevertheless offers some clues.

Being called a minister certainly helps – though it did not consider this in itself conclusive.[vi] Perhaps more important,  the court did not believe an employee’s duties had to be exclusively religious for ministerial exception to be applicable.

For although Perich’s specifically religious duties only took up 45 minutes of each day, the court argued:

The heads of congregations themselves often have a mix of duties, including secular ones such as helping to manage the congregation’s financ­es, supervising purely secular personnel, and overseeing the upkeep of facilities… The issue before us … is not one that can be resolved by a stopwatch.[vii]

Scientology’s line

With this opinion, the court has spread the net wider than many, more secular-minded commentators are comfortable with.

But they argued that once they had established that they were indeed dealing with a minister, then the First Amendment effectively decided the case for them: The church must be free to choose those who will guide it on its way,” the opinion concluded.

It does not hard to see how Scientology’s lawyers will spin it: leaked internal documents make it clear the movement likes to stretch its definition of minister pretty wide.

A request for relevant documentation at Why We Protest – hive mind of the Anonymous conspiracy – brought a flurry of interesting candidates.

A 1994 Scientology document listed those posts that qualified for ministerial exception included not just chaplains but case supervisors and auditors – those involved in the “therapy” side of the Scientology process: No surprise there.[ix]

But another contributor pointed out that Scientology attorney Jeanne Reynolds had pitched the idea that members of the movement’s Sea Org cadre should be treated as religious workers for immigration requirements – and that included translators, musicians and booksellers.

Describing the Sea Org as a religious order in a letter to June 2007 U.S. Citizenship and Immigration Services she wrote:

It is unacceptable that the USCIS be given carte blanche to determine what is a “rational relationship” for a Scientology minister to do or not do as part of his ministerial duties since that would require excessive entanglement.”[x]

And it rather looks as if at least one Supreme Court judge might agree. For Justice Clarence Thomas, while he went along with the main opinion, said he would go further.

Setting out his position in a separate opinion, he said that in his view:

…the Religion Clauses require civil courts to apply the ministerial exception and to defer to a reli­gious organization’s good-faith understanding of who qualifies as its minister.[xi]

And if he is really that accommodating, it is difficult to imagine him quibbling over what constitutes good faith.

Of course the whole basis of Scientology’s well-documented “religious cloaking” exercise was precisely to win the tax breaks and legal protection afforded to churches, as documents dating back to the era of the movement’s founder, L. Ron Hubbard, make clear.

Hubbard spelt it out as early as 1962 in a policy letter:

Scientology 1970 is being planned on a religious organization basis throughout the world.

This will not upset in any way the usual activities of any organization. It is entirely a matter for accountants and solicitors. [xii]

In another policy letter from 1969 he wrote: “Visual evidences that Scientology is a religion are mandatory…,” which rather suggests that presentation was more important than the substance.[xiii]

The testimony of former members who have said that the wearing of dog collars and the staging of services was strictly for the benefit of fooling outsiders – such as gullible academics – tends to bear this out.

This objective has been pursued ever since, with the current leader David Miscavige overseeing a campaign that won the movement recognition from the U.S. Internal Revenue Service as a church in 1993.[xiv]

But it would take a brave lawyer to try to challenge the whole basis of Scientology’s claims to religious status in an employment law case.

Unfettered discretion

Critics of the principle of ministerial exception say it risks becoming a carte blanche for churches to commit and cover up all kinds of abuse: this is the “unfettered discretion” argument brushed aside by the Supreme Court.

In its dismissal of that issue, the Court referred in passing – without actually quoting it – to a submission from the American Bar Association (ABA), which supported the EEOC’s position.

One passage in particular from that submission deserves attention.

… the logic of petitioner’s position [the Hosanna-Tabor Church] threatens to impair both court proceedings and government investigations of unlawful conduct in a variety of circumstances involving religious organizations.

Petitioner justifies terminating Perich on the ground that she violated its tenet that “fellow believers generally should not sue one another in secular courts.” …

A different religious entity might similarly invoke its teachings to forbid its employees from testifying in a civil lawsuit between other church members, or from reporting other members’ criminal misconduct to civil authorities, or from testifying against other members before a grand jury or in a criminal trial.

If petitioner’s religious reason for retaliating against Perich suffices to excuse petitioner from complying with the ADA’s [Americans with Disabilities Act] anti-retaliation provision, it is not clear why other religious organizations could not similarly justify their non-compliance with laws forbidding retaliation against witnesses in criminal investigations and other proceedings…

No provision of the Constitution demands that result.[xv]

It is not hard to see how this argument would apply to a lawsuit against Scientology.

It is a high crime for Scientologists to publicly disavow the movement. It is also forbidden to make any public statements against Scientology or Scientologists or bring any civil suit against any Scientology organization or Scientologist.[xvi]

But as the ABA argued, it does not seem reasonable – or even constitutional – to let such extreme restrictions trump a citizen's other rights.

The Supreme Court, however, did not see a problem.

Hosanna-Tabor argued – and the Court seemed to accept – that ministerial exception had been around in the lower courts for 40 years without giving rise to the dire consequenc­es – the “parade of horribles” – predicted by the EEOC and Perich.

But could it not be that this is because ministerial exception has had such a chilling effect?

Could it not be that such cases are not emerging from the lower courts precisely because the stifling effect of ministerial exception prevents them from getting off the ground in the first place?

Consider what happened, for example, to the cases brought by Claire and Marc Headley – and if it’s a “parade of horribles” you want, look no further.[xvii]

The Headleys filed their cases in the California courts in 2009. Both were dismissed in summary judgments issued by Judge Dale S. Fischer on August 5, 2010.

Marc Headley alleged he was forced to work long hours below the minimum wage at Scientology’s California centre, known as the Int. Base.[xviii] He described seeing colleagues assaulted and detailed the physical abuse that he himself suffered.

He also alleged that the Sea Org illegally used child labour, a claim that has appeared in other lawsuits filed by former members.[xix]

Claire Headley had argued her claim was valid under human trafficking laws because:

1.      Defendants coerced her into having two abortions;
2.    Defendants placed restrictions on Sea Org members’ ability to leave;
3.     Defendants pursue Sea Org members who leave without routing out and attempt to dissuade them from their decision;
4.    Defendants discipline Sea Org members who even express a desire to leave;
5.     Defendants censor Sea Org members’ communications;
6.    Defendants’ discipline of Sea Org members includes sleep and eating deprivation and heavy manual labour
7.     Defendants attempted to force Plaintiff to divorce her husband.[xx]

But in her rulings, Judge Fischer took the view that the Headleys knew what they were signing up for when they joined the Sea Org.

In both cases she accepted Scientology’s argument that employment conditions and practices in the Sea Org were covered by ministerial exception.[xxi]

And having considered all the points advanced by Claire Headley, the judge took the view that the principle of ministerial exception trumped all the issues raised.

“…Defendants here represent that the challenged conduct was doctrinally motivated,” she noted in her ruling against Claire Headley.

“…Therefore, inquiry into these allegations would entangle the Court in the religious doctrine of Scientology and the doctrinally-motivated practices of the Sea Org.”[xxii]

In both rulings, she rejected as “circular” the Headleys’ arguments that Scientology doctrine did not sanction such abuses.

“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.”[xxiii]

I have argued previously that this judgment ignored issues such as the fact that both Claire and Marc Headley were recruited when they were minors, which surely raises issues of informed consent.

Both these cases are on appeal and oral arguments start on February 9.[xxiv]

Last week’s Supreme Court ruling, while providing no clear definition of who qualifies as a minister and how far ministerial exception trumps other legal considerations, at least leaves the door open for these cases to be heard.

It will be for future judgments then to set the limits to what churches can get away with in their treatment of employees.

If any such case reaches the Supreme Court, one can only hope the judges will be a little less complacent about the dangers of “unfettered discretion”.[xxv]

[i] Pages 15-16 of the judgment. The full January 11 U.S. Supreme Court ruling in Hosanna-Tabor Evangelical Lutheran Church and School v; Equal Employment Opportunity Commission et al is here. You will also find a useful summary – or “syllabus” of the case preceding the actual judgment. And while the judgment was adopted unanimously, you will also find two opinions from three of the Court’s judges, nuancing their positions. I set out a slightly more detailed summary of the Perich case in a previous posting: Legal Update II: the Headleys.
[ii] Page 20 of the judgment.
Similarly, although Perich was no longer seeking reinstatement but compensation and damages for wrongful dismissal – and so was not asking the court to force upon a church an employee it did not want – the court said it could not rule in her favour on this matter either. Any such decision would still mean finding that the church had unfairly dismissed her –just what the ministerial exception prevents.
[iii] Page 21 of the judgment.
[iv] The court’s treatment of the EEOC’s argument and the church’s rebuttal appear on pages 20-21 of the judgment.
[v] Pages 21-22 of the judgment.
[vi] Page 18 of the judgment. Overturning a ruling by the Sixth Circuit Court in Perich’s favour, the Supreme Court argued that the lower court should have given more weight to the fact that as a “called” teacher, Perich was a commissioned minister. The Hosanna–Tabor church employed two types of school teachers: “lay” teachers and “called” teachers. Perich came into the second category. “Called” teachers are those called by God to teaching as a vocation – and a “called” teacher receives the formal title “Minister of Religion”.
[vii] Page 19 of the judgment.
[ix] Scientology Policy Directive, April 9, 1994, among a batch of documents produced following the movement’s controversial settlement with the Internal Revenue Service originally posted by WikiLeaks and subsequently picked up at Why We Protest.
[x] From page 17 of her June 25, 2007 letter to the U.S. Citizenship and Immigration Services (USCIS). The references to translators, musicians and booksellers are on pages 13 and 14 of the letter.
[xi] Justice Clarence Thomas’ separate opinion is attached to the main one here.
[xii] Hubbard Communications Office Policy Letter, October 29, 1962: “Religion”: for a fair use copy see Caroline Letkeman’s website here.
[xiii] “Religion”: Hubbard Communications Policy Letter, February 12, 1969. Widely reproduced on the Internet.
[xiv] For chapter and verse on how Miscavige developed the fiction of Scientology as a religious organisation, look no further than former executive Larry Brennan’s: “The Miscavige Legal Statements: a Study in Perjury and Lies” The title gives you a rough idea.
Here is not the place to hash out the debate as to whether or not Scientology is a religion: but it seems reasonable to say that this aspect of its existence is at best an ancillary part of its operations.
[xv] The ABA is the Federal Respondent 29 referred to in the Supreme Court judgment and the quoted passage is on pages 46-7 of their submission.
[xvi] All these offences and more are listed in “The Ethics Codes”, Chapter Seven of An Introduction to Scientology Ethics, pages 206 to 223 of my 1989 edition.
[xvii] If this passage seems familiar to regular readers it is based on a précis of an earlier summary in a posting from last year, Legal Update II: the Headleys, in which I previewed the Supreme Court hearings on Tabor (no sense in reinventing the wheel).
For my initial write up of Marc Headley’s lawsuit, see here. He described his experiences in more detail at a conference in Hamburg, Germany in 2008, which I covered here. For coverage of the speech he gave at a Los Angeles press conference in 2010 together with other former Sea Org members to publicise abuses inside this part of Scientology’s operations, see here. And he has written up his story in a book, BlownforGood, available here. You can find my initial write-up of Claire Headley’s case here.
[xviii] You can find a copy of Headley’s original complaint here.
[xix] This forms part of Laura DeCrescenzo’s lawsuit. It also features in one of two lawsuits filed in March 2011, by Daniel Montalvo, but they were settled in October, 2011. The November 2009 lawsuit filed by John Lindstein contains similar, striking allegations: but it was settled in December 2010.
[xx] Op. cit.: page seven of the judgment.
[xxi] Claire Headley v. Church of Scientology International et al, judgment issued August 5, 2010: page seven of the judgment.
[xxii] Op. cit.: page seven of the judgment.
[xxiii] Op. cit.: page eight of the judgment.
[xxiv] The Headleys might also be encouraged that even before the Supreme Court ruling an appeal court reinstated another lawsuit by a former Sea Org member, Laura DeCrescenzo (though ministerial exception was not the central issue there). See my earlier posting, Lawsuits Update I: Laura DeCrescenzo, and attorney Scott Pilutik’s analysis at his blog, Reality-based Community. See also Pilutik’s critique of Judge Fischer’s dismissal of Claire Headley’s case in a posting to the Why We Protest message board.
[xxv] In the complaints he filed for Marc and Claire Headley, lawyer Barry Van Sickle attacked the notion that all members of Scientology’s Sea Organization perform religious functions. In Claire Headley’s complaint, he argued: “She was not a minister and Golden Era [her Scientology employer] was not a church.” Her duties were mainly “clerical, commercial or secular” in nature, he wrote. In Marc Headley’s complaint, he made the same point: “Plaintiff’s duties were secular and commercial in nature. Golden Era Productions is a business enterprise.” Marc Headley had worked mainly on film and promotional material that were sold commercially.
One cannot help wondering however, if the Hosanna Tabor case has limited his room for manoeuvre here.