This is a thought-provoking, and somewhat alarming article by Professor Marci Hamilton, Founder and CEO of Child USA
Marci appeared on The Aftermath and was part of the team who filed the civil lawsuits on behalf of the Masterson victims and Valerie Haney.
She is one of the country’s foremost experts on First Amendment Law as it relates to religion.
Marci eloquently and persuasively highlights something I have often said, conservative Supreme Court justices are overly zealous in their efforts to protect religions, and the umbrellas they establish allows scientology to get away with murder.
I am reprinting her article in full below with some commentary from me interspersed as it relates specifically to scientology in green.
Religious Entities Flex Their Muscles Through the Roberts Court, Playing Both Sides of the Discrimination Coin
Religious litigants were successful this Supreme Court Term wielding their religious identity as both a shield and a sword. The Roberts Court delivered just what they ordered: ever more expansive rights to government funding, based on their right not to be discriminated against, and mounting immunity from the employment discrimination laws. Thanks to President Trump, the Court now has a conservative, religious majority—which is composed of four Catholic men (Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, and Brett Kavanaugh) and Justice Neil Gorsuch, who is apparently Episcopalian. They were a well-oiled machine delivering for religious believers with nary a concern about who might be harmed.
As religious litigants succeed in expanding their opportunities for government-sourced income streams, and eschew the legal obligations on everyone else, they also persist in their expectations of no public accountability about their finances. Unlike other nonprofits, they maintain their tax-exempt status without having to truthfully disclose their actual finances, donors, or lobbying activity. The result is a greater capacity to pursue government funds under cover, e.g., the PPP loans through which the Catholic dioceses and parishes raked in $1.4 billion, and an ever-increasing power to impose their beliefs on their employees, whether co-believers or not.
Scientology also took out PPP loans, as I have commented before, they claim their staff (employees) are volunteers and they are paid like volunteers (essentially nothing and certainly not enough to live on), so no jobs were saved, which was the purpose of these forgivable “loans.”
As for no public accountability, this is the greatest benefit that scientology accrues from religious tax exempt status. They never have to disclose how much of the money they collect is spent, and for what. The tens of millions they extract from people for hurricane relief that is never spent. The hundreds of millions for buildings that is wasted. And most importantly, the fortunes paid out to Private Investigators and Lawyers to carry out Fair Game.
The “Equality” That Increases Religious Entities’ Fortunes
There was a time when the “separation of church and state,” that concept devised by Baptist preacher John Leland and embodied in James Madison’s First Amendment’s Establishment Clause, meant that the government was foreclosed from moving tax proceeds into religious coffers. Madison, the drafter of the First Amendment, railed against taxpayer support of religious education in his 1785 Memorial and Remonstrance Against Religious Assessments. He said not even “three pence” in taxes should flow from a citizen to support religious education. Why? Because government financial support of religion is bad for religion and bad for government; it leads to a union of power that the framing generation understood leads to tyranny.
This analysis of the Establishment Clause should be what strict conservatives fall back on. But the very thing the framers of the Constitution and Bill of Rights feared — the European model of state religion lorded over by a monarch — has in many respects come to pass.
One of the projects of religious lobbyists and some law professors since the 1990s has been to open the sluice to increased government funding of religious education and activities. They shrewdly adopted the vernacular of “discrimination,” arguing that if any other entity was receiving taxpayer funds, well, then, they should, too. Their first major success was in 1995 in Rosenberger v. University of Virginia, where the Court ruled 5-4 that the University of Virginia was required to financially support a religious club engaged in proselytization if it also supported secular clubs. The decision planted the seed they hoped to cultivate that religious entities must be treated “equally” with all others that receive government dollars. They reasoned that if they are not included as beneficiaries of public funds, they are victims of discrimination. Don’t worry about James Madison’s concern about corruption and an unholy union of power. Instead, accept that religious entities and secular entities are the same when it comes to funding.
How many times does scientology cry “discrimination”? It is their favorite term of victimhood.
In 2017, the Roberts Court gave that seed a heavy watering with the Chief Justice’s majority opinion in Trinity Lutheran Church v. Comer, holding that a church must receive recycled rubber playground resurfacing if other playgrounds did as well. This Term, in Espinoza v. Montana Department of Revenue, Roberts took the Court one step farther, holding that the government cannot have a scholarship fund that includes private schools but not religious private schools. This was a victory for private religious schools’ coffers.
The Exceptionalism That Permits Them to Discriminate
While they have posed as the victims of unfair discrimination in government funds, religious entities have also pushed an agenda of discrimination against their employees. In other words, they have seen no need to draw a connection between public values like nondiscrimination and the fact they are demanding taxpayer proceeds and tax-free status.
In the 1980s, religious lobbyists with their supportive law professors took to the legislatures to demand what they are fond of calling “autonomy.” They frequently argue that they are so special that while they should be treated as “equals” in terms of finances, they should not have to obey the laws meant for everyone else. They may piously demand “equal” treatment when it comes to government dollars, but they are determined to be able to discriminate against their employees at will in as many ways as possible. Three cases this Term enhance their power to discriminate.
Again, this is the scientology hymn that is sung most often in court. We have the right to abuse people — we are a religion and you cannot tell us what we can do. We can even establish phony stacked-deck “arbitration” with rules we make up as we go along, and you cannot do anything about it.
Their preferred mechanisms for avoiding the obligations of the law are the Religious Freedom Restoration Act (“RFRA”), and a doctrine called the “ministerial exception.”
This Term, the Roberts Court in an opinion by Justice Alito enlarged the ministerial exception in Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel, to hold that lay teachers at Catholic schools are not protected by the federal laws against age discrimination or disability discrimination. Alito intoned how very religious their teaching activities were, without once making a nod to how devastating it can be to lose your job because of your age or cancer diagnosis. Employees of religious entities beware: regardless of what the faith believes, they can violate your civil rights on a whim (after they pay you a pittance compared to other private schools and public schools).
The less-noticed moment of a newly defined power to discriminate appeared in the Bostock v. Clayton County case where Justice Gorsuch wrote for the majority. The headline from this case was that “sex” in Title VII includes LGBTQ and so employers would not be permitted to discriminate against their gay or trans employees. This seemed like such a progressive opinion! Yet, read the opinion to the end where Gorsuch laid the foundation to permit anyone to discriminate against LGBTQ under Title VII if they are able to articulate a religious reason for it.
This is the sort of expanded protection that scientology cheers in the halls about. They know that if they are ever challenged in court over their homophobic practices, they will be able to escape liability by claiming “religious belief” (claiming one thing in court and another publicly has never been a problem for scientology just look at what they promote about refunds to those handing over cash “money will be promptly returned if you are not satisfied” and then what happens when they are taken to court for not living up to their promises).
At the end of the majority opinion, Gorsuch went out of his way to point out that the employers in that case did not raise a religious defense to the claims, but if they had, there is an escape hatch: RFRA. Before you become comfortable thinking, well, that won’t apply to major corporations, please remember Burwell v. Hobby Lobby. In that case, a for-profit lucrative arts and crafts chain successfully invoked RFRA to deny women employees contraceptive coverage that conflicted with the owners’ faith. That would otherwise be a violation of the women’s rights against gender and religious discrimination under Title VII, but as Gorsuch declared, RFRA is a “super statute.” Thus, Bostock modified by RFRA opens the door to discrimination against LGBTQ employees by individuals, nonprofits, and for-profit organizations.
RFRA’s capacity to undermine public health in Hobby Lobby was reinforced this Term in Little Sisters of the Poor v. Pennsylvania, where the majority, in an opinion by Justice Thomas, held that the Trump administration’s evisceration of the contraceptive mandate (requiring no-cost contraception for all women) through broad religious and moral exemptions was supported by RFRA. As with all of these decisions, the spotlight was trained on the religious actors while their victims essentially sat in the dark, off to the side, ignored by the justices who were busy constructing a separate world for fellow believers without the bothersome Lockean obligations of a shared society.
Essentially, the conservative members of the Court have built a functional and operational establishment. They have created entitlements to government support, while they have built shelter for religious entities and business owners from the principles of fairness and accountability that undergird Title VII.
Madison sagely described the effect of religious establishments on civil society: sometimes they “erect a spiritual tyranny on the ruins of the Civil authority” and at others, “they have been seen upholding the thrones of political tyranny.” Either way, according to Madison, they have not been “the guardians of the liberties of the people.”
Amen to that.
It sickens me that any “church” with tax exemption simply adds more weight to the burden of taxes for ordinary hard-working people.
These scumbag religions game the system to pamper their own asses, while parents raising families have to make truly difficult decisions on what they can give to their children, after the taxman gets his piece.
It is disgusting and wrong.
Sorry, I have to part company with you here. Separation of Church and State is not in the Constitution. Congress itself has had a chaplain for centuries. The point is that the government cannot prohibit the practice of religion or play favorites.
Not playing favorites is a big deal. The more modern jurisprudence considers favoring secularism just as bad. If a group is only being denied a service because of a religious orientation, then an avowedly atheist organization could be favored over an avowedly religious organization. That would be akin to state sponsorship of atheism.
The rules on discrimination are another thing. Religion is a protected class under the discrimination statues. If a religious organization is going to work, the people running actually need to believe in the tenets of the religion. The groups needs to be able to enforce rules on who can join. For example, if a scientologist applied to teach at a Christian school, discrimination law says that can’t disqualify them. I should not expect to be able to teach at a Muslim school as a Christian, because the school is set up as Muslim and people send their kids to the school to have Muslim education.
Just as an aside, this article is why you are not going to see a conservative movement against scientology. Most religious conservatives believe that there are lots of people out there who would use any anti-scientology legislation against their church. For example, a lot of people hate evangelicals and view them as evil bigots who deserve to die. This leaves the evangelicals worried about any reduction in religious protections. If you want to build a broad-based movement against scientology, you will need to focus on areas that do not threaten the average churchgoer. (like their moneygrubbing fraud)
Cat W. says
Thank you, Mike, for researching the actual history instead of just the slogans. I’m so tired of people who claim that the US is or was a Christian country, as if that’s a good thing. They are happy to dismantle the very protections that did make this country great and exceptional in the name of their false assertions about why this country is great and exceptional.
Roger Larsson says
Scientology is a bloody serious thing depending on every members hard-working.
“I went to the wøøds because I wished to live deliberately, to front only the
essential facts of life, and see if I could nøt learn what it had to teach, and
nøt, when I came to die, discover that I had nøt lived.” __Henry David Thøreau
CP Malczynski says
Government support of religion is tyranny … all religious organizations should pay taxes, if everyone else must. Religious organizations do not have the right to violate the rights of those they employ; and should be prosecuted if they do, especially where it concerns children.
Having said that, the purpose of government does not include forcing the payment of taxes by anyone, and regulating businesses (e.g. demanding that businesses pay the costs for things their employees purchase).
Golden Era Parachute says
Great information, well stated and relevant to an organized effort to end the abuses of Scientology. Thanks Marci especially for the courage to call out the religion that targets private and innocent people of any state under it’s fair game policy and its use of enforcers.
And to clarify fair game, which seems like a benign policy term, let’s state it for what it really is: mental torture until the victim cries the safe phrase: “enough, I will remain silent”.
Mary Kahn says
Wasn’t the purpose of the 9th amendment to prevent abuses caused by constitutional overreach?
Asking as a Brit.
Karen de la Carriere says
This interview is so good..it should be the subject of the blog
Mary Kahn says
Thanks! Never seen this.
There is a very obvious way to take away Scientology’s tax exemption.
Create another Scientology religion that copies Scientology.
If it is outrageous enough it will draw attention. The goal would be to do exactly what Scientology does, just more obvious.
In court you could defend all actions as legalised through the IRS acceptance of Scientology.
The idea is to lose important court cases at some point. And when that happens you also shut down Scientology.
And with the right PR you make the new clone cult BIG enough to be perceived.
I must say that I admire your spirit and I hope you will find a way to make your desires come true because I seem to share your desires.
Unfortunately, I feel there is a serious flaw in your concept and I want to inform you about it so that you do not try it and wind up in serious trouble.
If anyone should create a so-called religion that is like the scam but more scam-like than they scam, I would think there is a real good chance they could wind up in prison. Why? Because how much more serious could some scam get before law enforcement comes along and beats their brains in?
Off Topic, but I just saw Clint Eastwood’s most excellent film, “Richard Jewel”. Very well done and I’m amazed that at his age, he can still direct films with such verve and style and aplomb and so many other adjectives as well. No matter what you may think of his politics, it seems to me there is just no denying that he is a first-rate director. He did a great job.
There are so many issues in that film that seem to be relevant to this forum. If you can get a chance to see it, I would suggest you will really enjoy that film. It was truly excellent!
I would just make one change to the outcome. I would like to see the Dwarfenfarter get sent to the penitentiary at the end of the movie instead of the outcome that actually happened.
Fairy tale says
I guess, this is why miscavige restructured the company away from Hubbard’s quacky philosophy and stalinistic Gulag mentality. Hubbard is a looser, as David could see quite fast. But the 500 million dollars from the other branches of Scientology are a real reason to go on until it breaks. After that he will spend his last years on a island like this friend of Trump and Prince Andrew. Good end of a bad fairy tale.
I wish that the money is divided under all hypnotized ex members.
So much for separation of church and state. The Founding Fathers would be rolling in their graves One of them was my great X3 or 4 grandfather. He was one of the Signers and held several high level governing posts in the newly created USA. I think the Signers would be appalled to learn that our tax money is being given to religions. But then, from I read, the good news is that, as a general demographic, religious fundies of all faiths are dying out and their numbers are not being replaced by their faiths’ younger members. Young people are quite socially liberal nowadays. According to what I read, the USA is becoming more and more secular. The Roberts Court may well be the older religious fundies’ 20 year swan song. And good riddance to them too.
All of the links to relevant cases are great! It helps to have these at hand.
Great article, Marci!
Christians believe in Jesus, Scientologists … your wallet.
Andy S says
So the only thing Scientology “clears” are their schmuck’s bank accounts.
Enturbulation Nation says
Great read. I consider myself middle of the road/party neutral and usually don’t share my political opinions… however if there’s one thing that would give me a lean to one side, I’d say its this (its that important). Thanks for reposting.
Peggy L says
In a perfect world the framers may not have anticipated a cult like scientology. They used the information they had, what they had experienced to try to anticipate one ruler from dictating how they had to worship. Loopholes are the life blood of organizations like the mob and cults and even corporations from being held accountable for what would seem to us as common sense abuses. Loopholes are the life blood of the attorneys who don’t much care about the abuses, they care about their own bottom line which is money, much like the abusers they defend.
Strict constitutionalists (not sure that’s a word) follow the letter, not the spirit.
Is there a blanket that can cover slippery slopes? I’m not smart enough to know.
People like Professor Marci Hamilton might be the one to find a way close those loopholes. Maybe she can find a different loophole. We can only hope.
Loosing my Religion says
Mike great article. Very enlightening. Thank you.
It is clear that in the meantime it is of paramount importance to continue exposing the crimes and abuses perpetrated by scientology. People need to get moreconscious about it.
Meanwhile SCN will not change but continue to do so – they are doing what hubbard’s writings tells them to do.
To be honest I don’t see why religions that deny the validity of our Constitution such as Scientology can claim the protection of our First Amendment which they deny.
What Hubbard called the religion angle needs to be closed.
O/T. I am sure that everyone had seem Tony Ortega’s story this morning, “Nazanin Boniadi chides Karen Bass for ‘insufficient’ statement on Scientology speech.”
I am posting here because #BassForUnityVP [@praxisnchill] just referred to Nazanin as “Karen” on Twitter.
I can’t reply because I have been suspended on Twitter for three weeks. Perhaps someone else would like to respond?
I am serious. I do not like #BassForUnityVP’s reply. It is disrespectful.
George M. White says
The Founding Fathers are probably rolling over in their graves about Scientology. Scientology is not a religion just as fascism is not a religion. The serious problem in the Courts is that no one really studies anything anymore. The other problem is fear. I called a lawyer the other day to get representation on a suit against Scientology. They are afraid because there really is no possibility of money.
CHILD ABSUE CAN TAKE MANY FORMS./…IT’S NOT ALWAYS PHYSICAL.
TO REPORT SUSPECTED CHILD ABUSE…..PHYSICAL…..EMOTIONAL…NEGLECT….
PLEASE CALL 1 800 4 ACHILD……
Verbal abuse, i.e. name calling, belittling…..educational neglect….not being fed enough….poor or filthy living conditions….abuse takes many forms.
NO RELIGION IS EXEMPT FROM ACCUSATIONS OR CHILD ABUSE IN ANY FORM.
Zee Moo says
Sorry Mike, but I can’t do anything but use my knee jerk liberalism and say up yours Hobby Lobby, you don’t talk for all of your employees. And screw you Roberts and those justices who came up with that opinion.
Joe Pendleton says
Left or Right, like free speech, in the long run, a majority of Americans will probably always favor a more expansive view of religious liberty and even entitlement if it fits into their view of religious expression, than a restricted one, and this will be reflected in the SC for the most part. The United States has never established a state church like The Church of England. The real “solution”, if that would be the correct word, for individuals is to not join OR WORK for a church or an allied organization, school, etc without fully doing one’s homework, as to the consequences of joining or working for that entity. That’s one great value of this blog, supplying that information. As for politicians of either party, there is simply no electoral upside to taking on any church or religion (unless there is immediately provable and shocking abuse going on, and though the CoS definitely abuses people in many ways, it simply has not risen to an order of magnitude necessary to move elected officials to action).
George M. White says
Personally, I follow Madam Blavatsky on this issue. There is no reason whatsoever to tax exempt ANY church. I mean Catholic, Christian, Jewish or even Buddhism should not have any tax exemption. I would love to find the first guy who ever got up in Court and called tax exemption on ANY religion. Seriously, some Evangelical believes every word in the Book of Revelation. This is actually a joke. Ok, under the first Amendment he can believe anything. But I do not need to support him with tax dollars. How many people even believe in Easter today? When I was a kid, we all went to Church. Today the Church has been knocked down. The Christian sects that practice in my home town are now 75% capitalistic. Yes, they do not teach anymore religion. They teach how to make money. Once tax exemption is taken from ALL religion, Scientology will fall because the market will not support it as Milton Friedman would probably argue.
jim rowles says
Excellent article, thanks for posting it, Mike.