The Volokh Conspiracy
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No Arbitration of Claims Against Scientology After Plaintiffs Had Left the Church
From Bixler v. Superior Court, decided Wednesday by the California Court of Appeal (Justices Laurence Rubin, Carl Moor, and Lamar Baker):
Petitioners … are former members of the Church of Scientology who reported to the police that another Church member [Daniel Masterson] had raped them. They allege that, in retaliation for their reports, the Church encouraged its members to engage in a vicious campaign of harassment against them. {[T]hey state no cause of action against Masterson for sexual assault. Instead, they allege causes of action against all defendants for stalking, physical invasion of privacy, constructive invasion of privacy, [and] intentional infliction of emotional distress ….}
After petitioners brought suit in superior court against the Church and related entities and persons, some of those defendants moved to compel arbitration, relying on agreements that provided all disputes with the Church would be resolved according to the Church's own "Ethics, Justice and Binding Religious Arbitration system." That system was created to decide matters "in accordance with Scientology principles of justice and fairness." …
The contract on its face apparently applied to all litigation against the Church:
My freely given consent to be bound exclusively by the discipline, faith, internal organization, and ecclesiastical rule, custom, and law of the Scientology religion … in all my dealings of any nature with the Church, and in all my dealings of any nature with any other Scientology church or organization which espouses, presents, propagates or practices the Scientology religion means that I am forever abandoning, surrendering, waiving, and relinquishing my right to sue, or otherwise seek legal recourse with respect to any dispute, claim or controversy against the Church, all other Scientology churches, all other organizations which espouse, present, propagate or practice the Scientology religion, and all persons employed by any such entity both in their personal and any official or representational capacities, regardless of the nature of the dispute, claim or controversy.
But the court concluded that, as a matter of California law, the arbitration agreement couldn't be enforced after the parties left the Church:
Individuals have a First Amendment right to leave a religion. We hold that once petitioners had terminated their affiliation with the Church, they were not bound to its dispute resolution procedures to resolve the claims at issue here, which are based on alleged tortious conduct occurring after their separation from the Church and do not implicate resolution of ecclesiastical issues….
According to plaintiffs, Scientology forbids members from contacting police to report a crime committed by a member. It instructs members that reporting such incidents is considered a "high crime" and subjects the reporting member to punishment. Scientology utilizes so-called "Fair Game" tactics to "attack, harass, embarrass, humiliate, destroy, and/or injure individuals who Defendants declare to be an enemy of Scientology, known in Scientology as a 'Suppressive Person' …." Masterson is a television actor; Scientology granted him special treatment when he achieved "celebrity status." To that end, Scientology worked to prevent plaintiffs from reporting Masterson's crimes and, once they did, declared plaintiffs Suppressive Persons. Scientology then mobilized an aggressive Fair Game campaign against them.
While the Fair Game campaigns against each plaintiff differed, collectively plaintiffs allege Scientology's agents committed the following acts against them: surveilled them, hacked their security systems, filmed them, chased them, hacked their email, killed (and attempted to kill) their pets, tapped their phones, incited others to harass them, threatened to kill them, broke their locks, broke into their cars, ran them off the road, posted fake ads purporting to be from them soliciting anal sex from strangers, broke their windows, set the outside of their home on fire, went through their trash, and poisoned trees in their yards. This conduct was alleged to be pursuant to Scientology's policies and procedures.
According to plaintiffs' complaint, Scientology's directives are that Suppressive Persons are to be silenced by whatever means necessary. Scientology instructs members "to damage the person's professional reputation, file frivolous lawsuits, and harass and surveil 'the enemy.'" Scientology's "policies and procedures encourage and/or instruct followers to 'ruin [the individual] utterly.'" …
In addition to events occurring while still a Scientology member, each petitioner alleged an invasive Fair Game campaign occurring entirely after she had left the church. Bixler alleged that she formally terminated her relationship with the Church in October 2016, then reported Masterson to the police. It was only after her report that she was declared a Suppressive Person and she and her husband were subjected to the Fair Game campaign.
Jane Doe #1 learned in June 2005 that she had been declared a Suppressive Person and was no longer permitted to engage in religious services at the Church. More than a decade later (after she asked the LAPD to reopen its investigation into Masterson), the Church commenced its Fair Game campaign against her. Jane Doe #2 ceased practicing Scientology entirely in 2004. In 2017, she reported Masterson's assault to the LAPD, at which point the Fair Game harassment began….
This case involves both petitioners' First Amendment rights to leave a faith and Scientology's right to resolve disputes with its members without court intervention. When applied to a dispute that arose after petitioners left the faith, and which can be resolved on neutral principles of tort law, we find petitioners' right to leave the faith must control….
An individual possesses an "inalienable First Amendment right to the free exercise of religion, which includes her right to change her religious beliefs …." "The constitutional freedom to question, to doubt, and to change one's convictions, protected by the Free Exercise and Establishment Clauses, is important for very pragmatic reasons. For most people, religious development is a lifelong dynamic process even when they continue to adhere to the same religion, denomination, or sect."
California precedent counsels against enforcing agreements that would violate an individual's right to change religions. The issue arose in In re Marriage of Weiss (Cal. Ct. App. 1996). There, prior to marrying her Jewish husband, a woman converted to Judaism and executed a written "Declaration of Faith," in which she pledged to rear all their children "'in loyalty to the Jewish faith and its practices.'" After the couple divorced, the woman returned to Christianity. She was attending church and had enrolled the couple's child in Sunday school. The child also attended a weekly club meeting at the church and had attended church summer camp. The father "acknowledged [the mother] had the right to expose the minor to her religion, but objected to the minor's being indoctrinated in the Christian faith or being enrolled in any activity 'that would be contrary to his Jewish faith.'"
The trial court refused to restrain the mother's religious activity with the child. The father appealed, arguing the court erred in not enjoining the mother from engaging the child in Christian religious activity. The Court of Appeal affirmed, recognizing the rule in California that a parent cannot enjoin the other parent from involving their child in religious activities in the absence of a showing of harm to the child.
The father argued that the written antenuptial agreement should be enforced as an exception to that rule and that the mother should be bound by her promise. … [T]he Weiss court disagreed. The court concluded the agreement was legally unenforceable for two reasons: enforcement would result in improper judicial entanglement in religious matters and would violate the mother's First Amendment right to change her religion.
As Presiding Justice Klein wrote, "Further, in view of [the mother's] inalienable First Amendment right to the free exercise of religion, which includes the right to change her religious beliefs and to share those beliefs with her offspring, her antenuptial commitment to raise her children in [the father's] faith is not legally enforceable for that reason as well." While a parent's religious freedom may yield to other competing interests, "'it may not be bargained away.' [Citation.]" …
Just like written antenuptial agreements to raise children in a particular faith are not enforceable against a parent who has left the faith, Scientology's written arbitration agreements are not enforceable against members who have left the faith, with respect to claims for subsequent non-religious, tortious acts. To hold otherwise would bind members irrevocably to a faith they have the constitutional right to leave….
Scientology argues that petitioners simply agreed to be bound by Scientology dispute resolution procedures no matter what. As Scientology puts it, "An 'irrevocable' agreement to 'forever' waive civil proceedings and submit to Scientology Ethics and Justice Codes in 'any dispute' with Churches of Scientology is a condition for participation in the religion." It argues that this agreement should be enforced like any other agreement.
Enforcing this provision without regard to petitioners' First Amendment rights would mean that if the Church or a Church member committed any intentional or negligent tort against a former member of the Church, that former member would be bound by Scientology dispute resolution procedures regardless of the fact that the member had left the Church years, even decades, before the tort. In effect, Scientology suggests that one of the prices of joining its religion (or obtaining a single religious service) is eternal submission to a religious forum—a sub silencio waiver of petitioners' constitutional right to extricate themselves from the faith. The Constitution forbids a price that high….
The Church of Scientology also argued that having this rule would discriminate against religious arbitration agreements, in favor of secular arbitration agreements. No, said the court, suggesting that a similar rule might apply to secular arbitration agreement as well:
[The Church] has provided no authority upholding an arbitration agreement ad infinitum, and the California case on which Scientology relies for this proposition is distinguishable. In Buckhorn v. St. Jude Heritage Medical Group (Cal. Ct. App. 2004), … [t]he Fourth District Court of Appeal [upheld an arbitration agreement provision in a contract], on the basis that his tort claims "stem[med] from the contractual relationship between the parties," and were therefore within the scope of the arbitration agreement. Here, petitioners' claims against Scientology do not stem from the contractual relationship; they stem from the alleged "Fair Game" campaign Scientology engaged in as retribution for reporting Masterson to police after they left the Church. This harassment allegedly arose because of petitioners' relationship with Masterson and their reporting his conduct to police, not because of their prior affiliation with Scientology. Indeed, plaintiff Riales alleged a similar Fair Game campaign of harassment, and it is undisputed she was never a member….
