OMNIA Q&A: The Right to Leave

Marci Hamilton is a lawyer, scholar, and career-long advocate for victims of abuse. She is the author of God vs. the Gavel: The Perils of Extreme Religious Liberty, which was nominated for a Pulitzer Prize, and the founder and CEO of CHILD USA, a nonprofit dedicated to using interdisciplinary, evidence-based research to prevent abuse, exploitation, and neglect.

Hamilton, Fels Institute of Government Professor of Practice, is currently working on behalf of plaintiffs that have accused members of the Church of Scientology of abuses. Central to the cases is the Scientology policy that all accusations must be dealt with through arbitration overseen by the church. In an OMNIA Q&A, Hamilton outlines her thoughts on the cases and the legal strategies she and her team, which includes Philadelphia attorneys Brian Kent and Jeffrey Fritz, are employing on behalf of the plaintiffs.

Can you describe the cases?

The plaintiff in the first case is Valerie Haney, who has alleged civil claims, including kidnapping, intentional infliction of emotional distress, and more. The second case involves a group of plaintiffs, including Chrissie Carnell-Bixler; Cedric Bixler-Zavala; Chrissie's husband; Jane Doe #1; and Jane Doe #2; who have accused a church member of violent sexual assault and rape, and alleged harassment by the Church of Scientology after they reported the crimes. Their cases are now being prosecuted in Los Angeles.

Valerie Haney is suing for false imprisonment, kidnapping, stalking, and a number of other civil claims after growing up in the Church of Scientology and escaping after alleging cruelly abusive work situations. On her behalf, we have petitioned the United States Supreme Court to apply bedrock First Amendment principles.

The other case involves victims of actor Danny Masterson. These are rape victims who reported the crimes; the Los Angeles District Attorney is prosecuting Masterson. After reporting, they were subjected to horrific oppression, at one time called "Fair Gaming" in Scientology. This is a practice that was mandated by the founder of Scientology, L. Ron Hubbard, then perpetuated by future leaders. It's brutal retaliation against anyone who leaves or criticizes the faith.

A lot of religious groups have a rule that forbids criticizing the religious organization outside the faith. The Catholics have the rule against scandal. Mormons have a very explicit rule that believers may not criticize the faith to the public. Various Jewish denominations also have a lot of these rules. So, this is not unusual. But what's different here is that if you put the church in a bad light, they don't just shun you or force you out of the fold—they come after you. The complaints we've filed include people entering the victims' home and leaving doors open and leaving car doors open overnight. A victim's dog passed away and she strongly suspects that church members were part of that. It has been a level of psychological harassment that ought to be capable of being redressed in court.

What sparked your involvement?

I've been studying the Scientologists just as I've been studying many other religious groups for years to understand how and why they harm others, and how to help the victims. To be perfectly frank, they have a practice of harassing individuals who criticize them with frivolous lawsuits, and so I haven't written about them in either edition of my book, God vs. the Gavel. I was very fortunate to be asked by [former Scientology member and actress] Leah Remini to be on her Aftermath show [an American documentary series that investigates the Church of Scientology through the experiences of former members]. That was where I met so many wonderful survivors and people in the movement. It was honestly her advocacy for the victims that opened the door for me to be able to say, "Okay, it's time to take some of these cases to court."

Are Scientology members required to agree to internal arbitration?

Here what we have is a purportedly legal document that you sign during your membership, titled Religious Services Arbitration. It says that you agree that you will never go to court against Scientology, you'll arbitrate any problems, and that your arbitration will be controlled by "three members in good standing of the faith."

Religious groups really break down into three categories in terms of those who leave the faith. First, there are what we think of as the ordinary mainstream religions. If you decide to no longer be a Lutheran and you decide to be a Presbyterian, you just quit. You stop going to this church, and you start going to that church. Second, there are others who exclude the apostate. They may use psychological mechanisms of exclusion, for instance, Jehovah's Witnesses will "disfellowship" former members, which means you can't see anybody in your family anymore. The Amish are similar. They shun those who try to leave. Then there are those groups that punish the ones who exit, like the Scientologists.

We are arguing for the basic mainstream First Amendment right to choose your religion and to leave it when you choose to leave it. This case is built on bedrock First Amendment principles. It's not novel, except in the facts. There is simply no right to the freedom of religion and free exercise if you can't decide that once you join the faith you may also leave it.

What plays into the state's decision on whether to enforce these arbitrations?

If you have a business entity and a customer who has agreed to arbitration, that's a different thing. Here, the church is arguing that this religious contract keeps former members from being able to go to court to file for ordinary civil damages for illegal harm, because they signed this religious agreement when they were members. While the church may have had an argument when the plaintiffs were still members, it certainly can't have an argument when you have someone who has totally rejected the faith and says, "I am no longer a Scientologist." Our response is that it's cruel to put these people through so-called arbitration, number one. Number two, surely, they have a First Amendment right to exit and involve the civil justice system like any other citizen.

A different angle is the Establishment Clause, a topic you've worked on a lot in the past, which prohibits the establishment of religion by the government. How does this factor in?

Under the First Amendment, courts have no business forcing anyone into a religious service. It's a violation of the separation of church and state. The church shouldn't be able to co-opt the courts into forcing the plaintiffs back into the fold, which is what these arbitration agreements do. In reality, this is an attempt by the faith to coerce the plaintiffs to throw out the lawsuits.

Do you have any window into any past arbitrations and how they've played out?

Scientology calls anyone who reports a crime from within a "suppressive person." The religious arbitration they are demanding requires being judged by three Scientologists who believe that a member should never report a crime from within the church. They have already, in many ways, pre-decided that these women are not going to be treated fairly. They're not going to be treated according to the law; it would be according to the doctrine of Scientology. That does not bode well for the plaintiffs, and frankly, the proceeding is a potent way to bully them. That's why you don't see a lot of these lawsuits. There are many, many more who would file them, but it can be a harrowing experience. Three Scientologists in good standing are not a federal judge or a state court judge applying neutral, generally applicable law.

These survivors also want to be given the opportunity to get discovery so they can understand what actually happened in the organization that led to their harm. What the church is trying to do is to avoid any of that public disclosure and having to release any of its internal secrets. In a lot of ways, this is like the Catholic clergy sex abuse cases. It's a battle between victims and a religious organization fighting tooth and nail to keep its ugly secrets from being released to the public.

Does the arbitration process suppress evidence discovery?

Civil lawsuits exist to make victims whole and reveal the truth. What our clients would really like to know, for instance, is, what was the role of David Miscavige, the leader of the organization, in their cases? Who actually was doing this to them? What was it that led to them being treated like this? They have their hypotheses, they remember the faith, but they want the evidence. They want to know what the background story is and that's what discovery is all about. But we haven't been able to get close to discovery solely because of these arbitration demands.

Regardless of whether the plaintiffs participate in arbitration and signed an NDA, are courts still able to step in and prosecute accused abusers?

There's no question that Masterson has been held over for trial. He is going to be prosecuted for the rapes these women have bravely testified about as the Los Angeles District Attorney presses charges. There's no question about the criminal proceedings. The civil legal team is trying to make sure that during those criminal proceedings the victims are not forced at the same time into a room with members of the faith and that they can then obtain civil justice.

My hope is that these arbitration agreements are made unenforceable, in particular against anyone who has left the faith. Once someone leaves the faith, they have left a voluntary problem-solving system and they should then be able to enter the civil law system that applies to everybody else. This is really a fight for whether or not religious groups can trap individuals into ongoing involvement when they've walked away. That is the heart of the First Amendment's absolute right to believe or not.