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.

Friday 10 February 2012

The Headleys on appeal I

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

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

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

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

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

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

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

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

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

Saldana for the Headleys

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

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

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

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

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

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

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

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

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

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

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

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

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

Psychological compulsion

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

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

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

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

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

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

They prohibited:

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

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

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

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

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

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

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

Regular abuse, violence

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

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

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

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

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

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

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

Judge Wright Nelson intervened.

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

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

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

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

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

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

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

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

And when they did try to leave they were followed.

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

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

Overcoming ministerial exception

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

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

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

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

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

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

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

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

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

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

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

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