Scott Pilutik

I am an attorney and consultant living and working in Manhattan, focusing primarily on church/state constitutional law. I'm a recognized expert on the Church of Scientology organization. I also have strong interests in intellectual property law where it intersects with emerging media, and free speech.

I support the efforts of the Americans United for Separation of Church and State, the Freedom From Religion Foundation, the National Lawyers Guild, the ACLU, Creative Commons, and the Electronic Frontier Foundation. I am a member of the New York County Lawyers Association and the New York State Bar Association. I also enjoy (watching) hockey and (doing) photograhy.

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Godelman and Le Shay Respond to Diskeeper’s Motion to Strike

“And I would like to state for the record that I object to having my religious beliefs held up to public ridicule and scorn by an officer of the court.” – Craig Jensen

“And anyone who objects and says, I’m not going to consider the Hubbard Management System; I’m not going to partipate in it in any way is distancing themselves from any possibility of doing the job he was hired to do. And I don’t have to talk to him to figure that out.” – Craig Jensen

Alexander Godelman and Marc Le Shay (“Godelman”) have filed a strong response [PDF] to Diskeeper’s motion to strike in their wrongful termination suit against Diskeeper. I wrote about the suit here only last month, but in a sentence, Godelman and Le Shay allege that they were forced to participate in “training programs” which was, in actuality, barely veiled Scientology indoctrination and were fired when they refused to participate.

Godelman supplies some procedural backstory to the case, which I’ll briefly summarize. The complaint was first filed in July 2007. The attorneys met, and after “several demurrers and delays,” according to Godelman’s motion, Diskeeper’s Answer to the Complaint was not filed until May 2008. In October 2008, at least one dozen people were deposed, including Craig Jensen. At some point probably around this same time, Godelman amended the complaint to include an injunctive remedy, one which would prevent Diskeeper from using Hubbard Management Tech in the future. With a trial date now looming, Diskeeper moved to continue (extend) the trial date, because, the newly introduced injunctive remedy, they argued, was a “fundamental change in the legal and factual stance of the case” and that it needed additional time to file a motion to strike the injunctive remedy. The court granted Diskeeper’s request, which brings us up to date—Diskeeper filed its motion to strike, which I discussed in the previously mentioned post from last month, and Godelman and Le Shay’s opposition was filed this past week.

Godelman responds to the motion to strike by noting something I briefly pointed out in my post, which is that a motion to strike is an inappropriate vehicle for Diskeeper’s argument—motions to strike are appropriate either to strike “irrelevant, false or improper matter.” Because injunctive relief is specifically authorized by the statute under which Godelman brings this suit, it’s not really possible to argue that the request should be stricken as “irrelevant, false or improper”. The court may eventually decide against awarding Godelman’s injunction request, but, Godelman essentially argues, it’s a matter to be decided after the trial, not before it.

Godelman points out that Diskeeper’s motion to strike places a great deal of mistaken reliance on the EEOC v. Townley Engineering case (“Townley”), where the Ninth Circuit ruled against an employer who required that its employees attend religious services. In so ruling, however, the Ninth Circuit also found the plaintiff’s requested injunctive remedy to be too broad, and remanded so that the district court could more narrowly tailor it. The Court in Diskeeper may well decide to follow Townley on this aspect, but Diskeeper misreads the Ninth Circuit as stating a rule of law, as opposed to applying the law to the facts before it. The court could conclude that although a blanket injunction was inappropriate in Townley, it’s appropriate in Diskeeper.

Godelman also notes that Scientology’s motion to strike relied on an outdated interpretation of the free exercise clause. Formerly, a law which interfered with religion had to have a “compelling” government interest (a test also known as “strict scrutiny”), else such a law was unconstitutional; but this test was rejected in 1990 by the Supreme Court in Employment Division v. Smith, which stated the present-day rule , that a “neutral law of general applicability” did not violate a religious claimant’s free exercise rights. In other words, only laws that target religion violate free exercise rights. The anti-discrimination law at the heart of the Diskeeper case is almost certainly a neutral law of general applicability.

The filing contains a host of interesting exhibits as well, including selected pages from a deposition of Craig Jensen, and an affirmation from attorney Barry Kaufman, which provides some insight into the behind the scenes legal wrangling.

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