See earlier articles: Scientology “Religious Arbitration” — Giving Kangaroo Courts a Bad Name and this one: Concerning Scientology “Religious Arbitration.”
Now comes an article from the Reason.com website which is rather more scholarly than my layman’s analysis. A leading expert on religious arbitration (Prof. Michael Helfand of Pepperdine, who notes he SUPPORTS religious arbitration) reaches the same conclusion as I do, based on his analysis of the law. I am reprinting it in full here.
Going on what I read here, Prof. Helfand would be even more shocked if he understood ALL the facts and circumstances of these rulings. I wonder for instance whether he understands that EVERY SINGLE proposed arbitrator put forth by the Garcia’s was rejected by scientology as “not in good standing,” and that every person the Garcia’s tried to speak to in order to even find out if they could be available to do the arbitration refused to speak to them pursuant to scientology policy. That in the end it was scientology who provided a LIST of people THEY SELECTED to be the arbitrators to the court. The Garcias did NOT select an arbitrator of their choice. The court took it upon itself to choose from the LIST provided by scientology. Because that was the only way of getting names of people “in good standing.”
And there is so much more…
Here is the article.
Scientology and Arbitration
Prof. Michael Helfand (Pepperdine), a leading expert on religious arbitration, passes this along.
Two readers asked me about this case, so I asked Prof. Helfand in turn, and he very kindly gave this answer:
I don’t think I ever read an article in the Hollywood Reporter until last week, when numerous friends and colleagues sent me the following story: “The Church of Scientology Says Danny Masterson Stalking Suit Must Go to “Religious Arbitration.” I have a long standing interest in—and support of—religious arbitration; moreover, I just finished a paper addressing, in part, the boilerplate Church of Scientology arbitration agreement. So especially given the timing of this story, I’m grateful Eugene asked what I thought about the case.
Religious arbitration is best defined as the voluntary submission of a dispute for binding resolution to religious authorities for adjudication in accordance with religious law. Religious arbitration agreements and arbitration awards are routinely enforced by courts, which comports with arbitration law more generally. But this case has raised concerns because of the facts of the case. The plaintiffs allege they were sexually assaulted by Daniel Masterson, himself a member of the Church of Scientology, and that the Church of Scientology sought not only to cover up these incidents, but also threatened and harassed the plaintiffs once they reported the incidents.
In response to the complaint, the Church of Scientology filed a motion to compel arbitration, arguing that the claims in the complaint must all be submitted for binding arbitration pursuant to an arbitration agreement executed between the plaintiffs and the church when the plaintiffs joined the church. While I am sure this litigation will twist and turn in a variety of ways, I see two primary issues with enforcing the religious arbitration agreement in this case:
All arbitration agreements define the scope of the controversies they cover. In this case, the arbitration agreement states: “I hereby expressly agree that any controversy arising under this Application/Agreement or in connection with my participation in the Service shall be resolved by such Binding Religious Arbitration.” The term religious services varies by agreement. In some it is defined as the specific religious coursework in which the plaintiffs enrolled (see Exhibits 1-7); in others, it refers to the general rubric of church activities and practices (see paragraph 2d in Exhibits 8-14).
However, according to the complaint, most of the plaintiffs’ causes of action are based upon conduct after they left the Church of Scientology. As a result, it would be difficult to read them as falling under the umbrella of religious services as defined by any of the agreements.
The Church of Scientology addresses this argument in two ways. First, by arguing that some of the implicated conduct—for example, the alleged sexual assaults—took place while the plaintiffs were members of the church. Therefore, the causes of action should still fall under the arbitration agreement. This seems like a tough sell, but is ultimately a question of contract interpretation.
The second argument is more interesting. Here the Church of Scientology argues that the body that should adjudicate the question of scope—that is, who should decide whether the complaint falls within the scope of the arbitration agreement—are the religious arbitrators and not the court.
The Church of Scientology is correct that arbitration agreements can require parties to submit these sorts of disputes (i.e. questions of substantive arbitrability) to the arbitrators themselves. Once again, this is a question of contract interpretation. Thus, if an arbitration agreement states that any questions regarding validity, enforceability and scope will also be heard by the arbitrators—what the law often refers to as a “delegation clause”—then not only would arbitrators have the authority to adjudicate the underlying merits, but they would have the right to address any such threshold issues.
This was the case in a recent Supreme Court decision, Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S. Ct. 524 (2019), which the Church of Scientology cites as support in its motion to compel. In Henry Schein, the arbitration agreement incorporated the American Arbitration Association rules, which include Rule 7: “The arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope, or validity of the arbitration agreement or to the arbitrability of any claim or counterclaim.” Thus, in Henry Schein, the only reason the courts were willing to entertain granting the arbitrators the power to determine the scope of the arbitration agreement was because the agreement incorporated the AAA rules, which by their terms aim to grant that authority to the arbitrators.
By contrast, it does not appear that there is a delegation clause in the Church of Scientology arbitration agreement that expressly submits questions of scope to the arbitrators. I therefore think that this issue would likely be heard by a court; and, I also think the court would find these claims as falling outside the scope of the arbitration agreement, thereby allowing the suit to go forward in court.
[II.] Arbitrator Qualification Clause
In the future, the Church of Scientology could remedy the limited scope of their agreement by simply including a delegation clause in their boilerplate arbitration agreements. Issues related to their arbitrator qualification clause are not obviated quite so easily.
Church of Scientology arbitration agreements include an arbitrator qualification clause that requires “all arbitrators shall be Scientologists in good standing with the Mother Church.” Prior plaintiffs seeking to file suit against the Church of Scientology have previously challenged Church of Scientology arbitration agreements on that basis, arguing that having their claims submitted to arbitrators affiliated with the Church of Scientology would make it impossible for the arbitration proceedings to be fair and neutral.
For example, in Garcia v. Church of Scientology, Maria and Luis Garcia—former church members—filed suit in federal district court against the Church of Scientology, alleging fraud and breach of contract claims predicated on monies they had previously given the church. When the church filed a motion to compel arbitration, the Garcias claimed that the agreement was unconscionable, in part, because of the arbitrator selection clause. As summarized by the court, the Garcias argued that they had been “declared ‘Suppressive’ by the Church and according to Church doctrine, have no rights as Scientologists and are not eligible for the benefits of the Codes of the Church.” Moreover, they alleged it would “be impossible for them to receive a fair and neutral arbitration because Scientologists in good standing are prohibited by Church doctrine from communicating with suppressive individuals.”
The court, however, rejected the Garcias’ claim because addressing the claim would require adjudication of a religious question, which the Establishment Clause prohibits: “it necessarily would require an analysis and interpretation of Scientology doctrine. That would constitute a prohibited intrusion into religious doctrine, discipline, faith, and ecclesiastical rule, custom, or law by the court.”
But as I’ve argued, I don’t think this is correct—in fact, I think the opposite is true. Even if assessing the unconscionability challenge would be unconstitutional, enforcing the Church of Scientology arbitrator qualification clause would still violate Establishment Clause pursuant to the religious question doctrine.
As an example of why, consider In Matter of Ismailoff, where a New York surrogate court refused to enforce an arbitrator qualification clause that required selection of “three persons of the Orthodox Jewish faith.” The court concluded that enforcing such a provision would violate the Establishment Clause because it would require a judicial determination as to whether the arbitrators were “orthodox.” And doing so would entail impermissibly resolving an “issue concerning religious doctrine or practice.”
This logic would seem to apply equally to determining whether an arbitrator is “in good standing with the Mother Church.” Determining whether proposed arbitrators satisfied this standard would presumably require judicial interrogation of religious doctrine; it seems most likely that interpreting and applying that standard both entails identifying what religious behaviors are necessary for good standing and then applying those religious standards to prospective arbitrators. As a result, it would be unconstitutional to enforce the arbitrator qualification clause.
One can imagine the Church of Scientology responding with the following counter-argument: the arbitrator qualification provision in Garcia does not require adjudication of a religious question, but simply asking the church whether the proposed arbitrators satisfied the theological requirements of good standing.
The problem with this argument is that it would empower one party to determine which prospective arbitrators are, and which are not, eligible to serve as members of the arbitral tribunal. And granting one party authority to either control the arbitrator selection process or to circumscribe the pool of eligible arbitrators renders an arbitration provision unconscionable precisely because it threatens to undermine the neutrality of the arbitration panel. See Zabrowski v. MHN Gov’t Servs., 601 F. App’x 461, 463 (9th Cir. 2014); Hooters of Am., Inc. v. Phillips, 173 F.3d 933, 938 (4th Cir. 1999). Indeed, granting the Church of Scientology final say over which arbitrators satisfied the “in good standing” requirement is particularly problematic given that no court could ever review the Church’s determination because of the religious question doctrine.
Importantly, there’s an additional consequence to invalidating the arbitrator selection clause. To the extent a court were to invalidate the arbitrator qualification provision, it is quite likely that it also should invalidate the entire arbitration agreement. This is because courts are to invalidate the entirety of an arbitration agreement “where the designation of the arbitrator was ‘integral’ to the arbitration provision [and not] merely an ancillary consideration.” See, e.g., Khan v. Dell Inc., 669 F.3d 350, 354 (3d Cir. 2012); see also Brown v. ITT Consumer Fin. Corp., 211 F.3d 1217, 1222 (11th Cir. 2000); Gutfreund v. Weiner (In re Salomon Inc. Shareholders’ Derivative Litig.), 68 F.3d 554, 561 (2d Cir. 1995). Given the nature of the overall arbitration agreement, it seems to my mind that the arbitrator qualification clause requiring arbitrators in good standing with the Church of Scientology ought to be viewed as integral to the Church of Scientology arbitration agreement.
Princess Leila says
For crying out loud! There is a reason why government and law are separated from the Church! To avoid exactly that – no matter the religion, a rape is a crime. Period. How can it asked to be fixed by the people claiming it did not happen? And, wait, so if a Scientologist kills another Scientologist ?
I want to puke.
Maybe it’s because I am a “never in”….that this isn’t understood .BUT…….even the children who were sexually abused/raped at the hands of the Priests within the bonds of the Catholic Church were able to press LEGAL CHARGES & SUE & WIN $$$$ for the sexual abuse/rapes they endured.
WHY is COS any different? Religious Arbitration is no more than a BLOCK to cover their own ASSES so that they can’t be sued. They will use every way they can to prevent JUSTICE from being served on the perpetrators of these crimes. They have the $$ to drag these cases out for eternity in the hopes that the person the accuser gets fed up, broke & then gives up.
Time to bring this to fruition, Danny Masterson MUST FACE A COURT……GUILTY OR INNOCENT(?) …..just WHAT is he afraid of????
If one is TRULY INNOCENT just why wouldn’t Masterson WANT to WILLINGLY go to court to PROVE THAT HE IS INNOCENT/NOT GUILTY??
IF YOU'VE NOTHING TO HIDE……………YOU HIDE NOTHING!!!!!
Mike Rinder says
Because the Catholic church doesnt have people sign agreements to take any and all disputes to religious arbitration…
Of course, their “sticky wicket”…..as I noted to cover their asses in the event of a sexual assault claim by a former member…..they are bullying members to sign that agreement so that they have to “litigate” through their OWN JUSTICE SYSTEM first…..it’s a win win for them all around.
You are already declared an SP, already disconnected from your family, friends & former associates who can no longer have anything to do with you……the icing on the cake is adding insult to injury….to have to face these same individuals who tortured you for years while you were a full fledged member. After you have been loyal enough to Pay Pay Pay for a non existent bridge to nowhere, be placed in “the hole” not enough food, never enough pay for some extras in life, no savings, no insurance, no nothing while a member & even less when you leave & face disconnection then held to an age old “binding agreement”…disgusting.
Fed up with having to face the perpetrators “defense team”, i.e. best friends & long time dedicated church officials who now have turned their backs on you….having to discuss with their “defense team” each & every detail again and again as in “why did you put YOURSELF in THAT position”…..while they grin & drool seeing you twitch in embarrassment etc…..sickening.
How can anyone be strong enough to go through all of that, & then add to it, a long wait for a court case to be scheduled/held. My heart goes out to all of these women who’ve endured & lived with what was done to them.
If there truly IS any good in this world….justice will be served in a LEGIT COURT OF LAW.
Matthew Aldrich says
And another element of LRH’s brilliantly woven tapestry of smoke, mirrors, false exits, trap doors, half-truths, blatant lies, and scams, which have protected it from consequences, legal and otherwise. However, to quote MLK, “the moral arc of the universe is long but it bends towards justice,” and thanks to the courageous efforts of you, Leah, Tony Ortega, Paulette Cooper, Alex Gibney, and countless other people of integrity, this is taking place in the Church of Scientology; it is a dam with many holes, which become yet more numerous as critique of Scientology becomes yet more normalized with each voice, however large or small, that speaks out in truth against it. Their days as a “religious corporation” are numbered, and considering their unconscionable greed, THEY CAN TAKE THAT TO THE BANK!!! P.S. Thank you, Mike, for the great show. I am almost done with watching all three seasons.
Joe Pendleton says
I still maintain that this is essentially a Constitutional case. How can someone have their First Amendment rights, if they are forced to religious arbitration IN A RELIGION THAT THEY ARE NOT A MEMBER OF (and in fact one that they oppose on moral grounds). On its face, this would harshly violate their right in exercising religious liberty per the First Amendment.
I Yawnalot says
Goodness me… This is about the accusation of stalking & rape from multiple victims concerning one individual is it not? The mere fact it’s being “entertained” in the so-called religious arbitration arena, and for so long is just about as heinous a crime as the act of rape itself. Imagine being one of the victims or their family members here…
If it was my daughter in there… geezers, I’d probably be behind bars by now. Shame on Scientology and the law. This is not an academic game!
Sandra Thackston says
This is miscarriage of justice I have never heard of such an example of… I don’t even know what to call this I that these women are being attacked all over again I assume that that’s what the evil cult of Scientology would do if under age children were able to get to a law officer and had reported their abuse and ppl wonder why this evil gets away with whatever they do I am truly sorry for these brave ladies who came forward to get justice my now get none Lady justice has tears falling under her blind fold We as nation have been run off the rails so far left that justice will never happen again for anyone who is abused in so called religious freedom that is far from free
Susan Harbison says
Mike I sent you a message the other day about the Haney and Bixler et al. cases. I have very important information for the plaintiffs. I was going to send it to their attys but decided against that. If there is a way for me to send it to the actual plaintiffs I will do so.
Mike Rinder says
I emailed you
Mike – This is excellent! I hope the attorneys see this. Even if they’ve exhausted current options, for other/future cases… if these agreements lack scope, or truly bind someone to its terms into perpetuity, what’s to stop them (co$) from going to a hospital if/when someone has a breakdown and asserting their right to pull the patient AMA and subject the person to the Introspection Rundown (enforcing the so-called Lisa McPherson clause)? In theory, that’s what the judge is saying! I don’t understand why the attorneys have not attacked the contract in-whole vs engaging in the circular arguments on arbitration.
It’s infuriating that especially these ladies (& Cedric) would not only be forced to submit to one of their abusers for “justice,” but also that they potentially have to deal with THE abuser/rapist being present or even part of it! Then on top of that obvious lack of any impartiality, how in the world did the judge think that it “wasn’t going to be an issue” that co$’s format directly violates their guaranteed rights per Marcy’s law?!?! I truly hope a victim’s organization would submit an Amicus Brief!
Then in Valerie’s situation – she had to ESCAPE and has been “kicked out” (per co$, anyway), disconnected and has clearly eschewed both the religious beliefs and life as a scientologist, so how in the world is it NOT unconscionable to require her to submit herself, again to the very organization that abused and then harassed her, for a religious form of arbitration?! I wish the 11th Circuit would suddenly issue their review of the Garcia case so others may cite that, going forward. Though I also imagine little DM & co$ are working HARD to get to the presiding judges in any way possible (and I will say a little prayer that it backfires spectacularly!).
It seems there are so many angles to attack conscionability here; from the format, lack of scope and term, to the fact that it directly violates one’s right to permanently sever ties with a religious organization. What more disconcerting is that these contracts (no matter how many times they’ve had to sign, re-sign, etc.) fail the legality test in SO many ways – Fraud/misrepresentation, Terms are unconscionable, Duress or undue influence! Any one of those 3 things make a contract voidable. It also violates public policy, which should void it on the face, from the beginning.
For anyone not familiar, here’s a good description of what elements may void a contract or deem it as a voidable contract:
It is on this basis, as Mike has discussed here in prior posts, that co$ does not initiate or pursue enforcement when someone leaves and speaks out. If they actually had to submit the Enrollment Agreement for scrutiny, they know it would immediately fail.
Jere Lull says
I agree: IF she’s been “kicked out” — where’s the goldenrod? — WHY should she be subject to their rules?
In his article, Mike said:
“…Scientology could remedy the limited scope of their agreement by simply including a delegation clause in their boilerplate arbitration agreements.”
WHY would scientology want to do anything like that? It’s sufficiently murky and indistinct to serve their purposes as it is. AND it’s already been WILDLY successful in derailing suits scientology doesn’t want to confront, which is ALL of them, AFAICT.
Susan Harbison says
If a contract contains an arbitration clause and you want to attack the underlying contract, you have to do so in arbitration.
“I wish the 11th Circuit would suddenly issue their review of the Garcia case so others may cite that, going forward.”
That may be precisely why the 11th Circuit is dragging its feet deciding the appeal. If the 11th Circuit decides there is a fatal flaw in the Garcia’s arb provision, and that same flaw exists in the Haney and Bixler et al. provisions, those two cases can move for reconsideration. I am not sure they can do that once the arbitration process begins in either case.
Marsy’s law creates victims’ rights in the criminal justice process but has no application to the civil process. Even if it did apply to a civil process, Marsy’s law does not change the fact that an accused individual has the right to face his accuser during a legal proceeding.
If an arbitration plaintiff is concerned about safety during the arbitration proceeding she can ask the court to order that safety measures are taken during the arbitration.
If Masterson decides to defend himself either at the criminal trial or any civil proceeding, the victims will have to speak directly to him. The few women that survived attacks by Ted Bundy, had to answer directly to him when they testified at his criminal trial.
Zee Moo says
The Dream Team needs to hire Prof. Helfand and use his arguments in court.
Exactly! It seems that only those who specialize in/are experts on arbitration understand it all well enough to pierce the the legality enough that the courts don’t just knee-jerk and kick it to arbitration, as seems to be most common.
And there is this re the Garcia case:
This is a fantastic find! How did you find it originally? Thanks so much for sharing it!
(BTW – I miss my Tigger-friend!!! Xoxo)
Susan Harbison says
Visitors to a blog leave a lot of “bread crumbs” behind them. The blog owner can see what sites the visitor was looking at before coming to the blog.
Maybe someone was reading that article last night right before she came to the blog, lol!
George M. White says
I heard a person running for Massachusetts Senator who said it best. The Courts are really in the 15th Century. He is correct. Most Courts reject everything because the Lawyers have developed a profession where they do not need to work. I have observed this over sixty years. In Florida, the Injury Lawyers are mostly millionaires and do very, very little work. They just need patience. Personally, I think all religious tax exemptions should be completely eliminated. It is the only way to achieve any sort of Justice in the outdated Courts. Lawyers are over paid wastes of time and Judges simply reject work.
The professor says; “Indeed, granting the Church of Scientology final say over which arbitrators satisfied the “in good standing” requirement is particularly problematic given that no court could ever review the Church’s determination because of the religious question doctrine.”
Compare this to the jury selection process. There attorneys for BOTH sides participate and question potential jurors. Then they choose who will sit in the box. This is done to bring unbiased and qualified jurors to the proceedings. Scientology is not the only party in the case so why should that organization be the only one to select people who will decide the outcome? Definitely has the odor of Kangaroo Court.
This is unspeakable.