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.

Online I can be found on Facebook, Twitter. My resume can be viewed here. I can be reached by phone at 212.645.6241 or by e-mail at pilutik[at]gmail.com.

Is Scientology a Religion?

I answered this question over at Quora, which seemed like a good idea at the time, but I don’t have much hope for Quora’s long term existence, so I’m going to publish it here as well. The tl:dr answer to the qeustion is as follows: Yes, Scientology is a religion… but it doesn’t really matter because the better question–the question the IRS is mandated by law to ask–is whether Scientology is organized and maintained for a religious purpose. And the answer to that is plainly no. 

This question has persisted without agreement within Scientology criticdom for years, largely because it’s impossible to answer without defining religion either so amorphously as to strip the word of all meaning, or so exclusively as to omit many widely recognized religions. Still, the question matters if for no other reason than the fact that it keeps getting asked, usually in the context of the more interesting question about why Scientology is considered a tax exempt entity.

Briefly to that end, it’s important to realize that the two entities with seemingly the most interest in determining whether Scientology is a religion–the US courts and the IRS–are constrained by the establishment clause to define religion so expansively as to avoid implicitly endorsing religion X over religion Y.

In a country as religiously pluralistic as the US, the courts must hew to a broad and inclusive definition of religion.

Early court decisions attempting to define religion predictably chose monotheistic terms–”The term ‘religion’ has reference to one’s views of his relations to his Creator[.]Davis v. Beason, 133 U.S. 333 (1890). “[T]he essence of religion is belief in a relation to God involving duties superior to those arising from any human relation.US v. MacIntosh, 283 U.S. 605, 633-34 (1931) (Hughes, C.J., dissenting).

Soon after, in 1944, God disappears from the definition:  “[F]reedom of religious belief … embraces the right to maintain theories of life and of death and of the hereafter which are rank heresy to followers of the orthodox faiths.”  Ballard v. US, 322 U.S. 78 (1944).

In US v. Seeger, 380 U.S. 163 (1965), the Supreme Court interpreted legislation exempting conscientious objectors from war (here, the Vietnam War) as including beliefs which even the plaintiff had not initially described as religious. The statute defined religion as “an individual’s belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, but does not include essentially political, sociological or philosophical views or a merely personal moral code.” The court read this to include “all sincere religious beliefs which are based upon a power or being, or upon a faith, to which all else is subordinate or upon which all else is ultimately dependent.

The Supreme Court has thus kept pace with modern theological trends by stretching the definition of religion to essentially mean any structured belief system which sincerely based on “ultimate concerns.” US v. Seeger, referencing progressive theologian Paul Tillich, Dynamics of Faith (1957) (defining faith as “the state of being ultimately concerned”). See also Welsh v. U.S., 398 U.S. 333 (1970).

Which brings us to Scientology, which is also unconcerned with any Supreme Being but instead, similar to inward-looking Eastern religions, views the soul, or what Scientology founder L Ron Hubbard called the “thetan,” as an immortal being. Per Hubbard, an adherent’s spiritual growth is wholly tied to gaining an increased understanding of one’s thetan, which is accomplished through a series of exercises and courses, often in tandem with another Scientologist called an “auditor” and often with the aid of an electropsychometer (“e-meter”), a sort of lie detector employed by the auditor in these courses.

By the Supreme Court’s increasingly generous definition of religion, broadened to keep pace with a growing pluralistic populace and to comport with the first amendment, it’s difficult to argue that Scientology, as I describe it above, is not a religion.

That said, the relevant question the IRS asks in determining an entity’s tax exempt status isn’t whether the entity is a “religion” but rather whether it’s organized and operated for a “religious purpose.” This distinction is not merely semantic. Though it rarely happens, the IRS can both recognize an entity as a religion and yet still deny it tax exempt status. See Bob Jones University v. US, 416 U.S. 725 (1974) (Court revoked exempt status of religious university which denied admission to applicants engaged in an interracial marriage or dating).

Despite that its tenets easily qualify as “religious” per the US constitution, there are nevertheless countless arguments why Scientology and its myriad corporate fronts should be denied tax exempt status because it is not organized and maintained for a “religious purpose.” 26 U.S.C. § 501(c)(3).

Religious groups risk losing their tax exempt status in a number of ways, such as if its net earnings inure to an individual; if it provides a substantial benefit to a private interest; if it devotes a substantial part of its activities attempting to influence legislation; if it participates or intervenes in any political campaign on behalf or in opposition to a candidate for public office; or if its purposes and activities are illegal or “violate fundamental public policy.” IRS Guidelines, Activities that are Illegal or Contrary to Public Policy.

An easier way to understand this is that the government cannot regulate belief, which is why it must define religion so broadly, but it can regulate activity, i.e., determine the existence of a “religious purpose.”

The most common reason a religion is denied or loses its tax exempt status is where its funding inures to an individual or individuals as opposed to the organization. LAW. This was the basis, in fact, upon which Scientology was first denied exempt status, when it emerged in the course of a trial that L Ron Hubbard was personally enriched by the organization. Founding Church of Scientology v. US, 188 Ct. Cl. 490 (Ct. Cl. 1969) (Court found impermissible a personal compensation scheme whereby the Church of Scientology had personally compensated L Ron Hubbard and his family at least 10% of its gross income).

By 1986, when L Ron Hubbard died, his religion was still not recognized by the IRS as exempt. Seven years later (1993) Hubbard’s successor, David Miscavige, negotiated a deal with the IRS granting it exempt status in exchange for Scientology dropping hundreds of lawsuits it had filed against the organization. Its terms remain officially secret to this day (the most recent unsuccessful attempt to crack it came in Sklars ) but were nevertheless leaked to the Wall Street Journal in 1997.

The IRS originally held the view that Scientology was not organized for a “religious purpose” but then reversed itself without explanation. What changed? By most accounts, the organization has only gotten more sinister under Miscavige, who is widely reported to violently beat subordinates, and live in unmatched luxury while staff members can make as little as $50/week.

But let’s break down why Scientology in its present incarnation isn’t “organized for a religious purpose,” and why, accordingly, it should have it exempt status rescinded: (1) Scientology has an explicitly commercial, non-charitable nature; (2) its revenues inure to a single individual; (3) it forces many of its members to disconnect from their families; (4) it grossly mistreats many of its members; and (5) it harasses and attacks ex-members and critics.

Taking these in turn then…

(1)

Regardless of Scientology’s thetan-concerned religious content, it seems significant that Scientology charges exorbitant amounts to become progressively enlightened. The functional practice more closely resembles psychotherapy, where one pays as one goes, than the community-oriented tithing and donation structure found with most other religions. Scientology attempts to dance around this by labeling all quid pro quo course payments as “donations.” From a business perspective, Scientology is profoundly profitable–staff members are paid a fraction of the federal minimum wage, while parishioners pay hundreds of thousands of dollars for the privilege of being audited.
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Scientology routinely resorts to high-pressure sales tactics to sell courses and solicit donations to various projects, often resulting in the financial ruin of its members. It even exhorts its members to pressure other members if they’re deemed to not be going “up the bridge” quickly enough. Though many religious groups can be financially demanding of their parishioners, among tax exempt religions I have yet to see any group comparable to Scientology. It routinely bankrupts members and declares them suppressive (excommunicates them) if and when they protest.

One high-ranking ex-Scientology official, Debbie Cook, recently estimated that Scientology has $1 billion dollars in reserve. Of that, virtually none goes to any form of social betterment or benefits local communities in any way. Scientology maintains a handful of social betterment groups (Narconon, Criminon, Applied Scholastics, and The Way to Happiness), each which are either run for-profit ventures or exist solely to “safepoint” (create generally good public relations) for L Ron Hubbard and/or Scientology. Narconon (a drug rehabilitation organization utilizing L Ron Hubbard’s scientifically disproven theories regarding toxins) is not only expensive, but is implicated in a trail of ‘patient’ deaths. Narconon Georgia is under state investigation for a massive insurance fraud scheme.

In short, parishioners pay hundreds of thousands of dollars to become Scientologists, money which benefits those parishioners directly; Scientology benefits by not having to pay taxes on those profits; and the general community benefits in no way whatsoever.

(2)

In Foundation Church, supra, the court found that Scientology revenues directly benefited L Ron Hubbard and that the IRS was therefore justified in denying Scientology tax exempt status for failing to organize and maintain a religious purpose. Hubbard’s successor, David Miscavige, has been, if anything, worse in this regard, his personal possessions are a laundry list of obscene wealth: $5,000 tailored suits, $500 Egyptian cotton shirts, the finest Italian leather shoes, personal use of a private jet, a $50,000 Acura RL, a $25,000 Mazda Miata, an $80,000 Range Rover, an $150,000 bulletproof GMC Van, a $25,000 custom-made motorcycle, a $110,000 BMW M6, a $45,000 Acura to use then he’s in Clearwater, Florida, a personal chef, a personal stylist, and so on. Even on Miscavige’s self-granted six-figure salary, the aforementioned perks could not be accounted for without assuming that he’s personally benefiting from Scientology revenues.

The inurement question gets even more lurid when considering how Miscavige’s best friend, Tom Cruise, also has personally benefited from labor performed by Scientology staff members. For example, Cruise’s elaborate wedding to Nicole Kidman was staffed by Scientology members at no cost to Cruise. Miscavige’s wedding gift to the couple was to arrange for a team of twenty Sea Org disciples to dig, hoe, and plant wheat grass and wildflower seed near the Cruises’ bungalow (on Scientology grounds) after Miscavige had learned of the couple’s fantasy of running through a meadow of wildflowers together. Miscavige threw a birthday party for Cruise aboard its cruise ship The Freewinds, estimated to cost $300,000. And Miscavige bestowed countless gifts worth hundreds of thousands of dollars on Cruise, often necessitating cheap, uncompensated Sea Org/staff labor. Cruise, through his lawyers, has issued a blanket denial but such denials are outweighed by numerous corroborated accounts. See generally Andrew Morton, Tom Cruise: An Unauthorized Biography (St. Martin’s Press, 2008).

Inurement is probably the most common basis upon which religious entities lose their tax exempt status. If the IRS cared to look, they’d have little trouble spotting Miscavige and Cruise personally benefiting from Scientology revenues in ways which have no discernible religious connection whatsoever.

(3)

The term “cult,” like “religion,” is, on the one hand, a useful demarcation line for how most people approach the question of whether Scientology is a religion. Religions are good and cults are bad, but why that’s the case is a somewhat subjective matter, similar to how the question of what is and isn’t a religion is difficult because of how everyone perceives religion personally, first, rather than dryly and objectively. My religion is a religion because I’m “good” and cults are “bad,” semantically speaking.

Nevertheless, one commonality of cults and continued evidence of their malignancy is that they tend to break up families, which most agree is an effect detrimental to communities in general. Scientology has alternately denied and defended (and indeed even claimed it as a human right) its well-documented practice of “disconnection,” whereby a member is forced by the organization to disengage from all communication with anyone critical of Scientology (inevitably the most skeptical family member). Scientology even designates a term for these pests: Suppressive Persons (or “SPs”), and a member risks his/her own standing within Scientology if they are “PTS” (Potential Trouble Source) to an SP.

Family represents an important value in America, but so does the principle of autonomy, and there is friction between the two. There is no recognized legal right or obligation for of-age family members to communicate with each other. Nor do we want to set precedents whereby churches’ institutional and its individuals’ autonomy is threatened by government policies. Scientology would argue that to rescind its tax exempt status because its practices break up families would be to religious. There’s some merit to this argument. The more powerful counterargument is simply that taxpayers should not be forced to effectively subsidize the destruction of families.

(4) & (5)

Scientology routinely mistreats its members, and especially its staff members. Ex-Sea Org members have filed lawsuits for labor law violations, forced imprisonment, human trafficking, and forced abortions. These damning accounts are largely corroborated, yet Scientology manages to escape prosecution and liability because the ex-members in question were either deemed to have consented or were deemed “ministers” and thus fell under the “ministerial exception,” which allows religious groups to be exempt from ordinary labor laws. Even if we concede that Sea Org members, after expressing their informed consent, thus waiving most claims they might later bring, it remains true that minors cannot waive such rights. Yet Scientology continues to employ children as Sea Org members (L Ron Hubbard viewed, and thus Scientology views children as undeveloped adults) and continues to abuse them without repercussion.

Scientology also infamously mistreats ex-members who dare criticize it, a group that includes not only former Scientologists but journalists and non-ex-member critics. The Internet is replete with endless stories of Scientology’s aggressive handling of individuals it deems threats, so I won’t bother detailing them here. But to the extent Scientology’s harassment engine is kept afloat and churning by a boundless tax-exempt repository (specifically, the International Association of Scientologists, or “IAS”), yet another basis exists to rescind Scientology’s tax-exempt status for failing to maintain a religious purpose.

 

In sum, in the United States the question of Scientology’s religiosity is a useless academic exercise because the first amendment has constrained courts (and thus the IRS) to define religion so broadly inclusive as to be meaningless. By the broadest definition, Scientology’s core beliefs easily qualify as religious. However, by the IRS’s more stringent requirement that tax-exempt entities be organized and maintained for a  religious purpose, Scientology fails because its revenues inure to a single individual, leader David Miscavige, its operation is indistinguishable from a for-profit business enterprise, and its practices–disconnection, the abuse of of members, and the ruthless handling of critics–violate public policy.

  • Michael Leonard Tilse

    Thank you Scott. I appreciate your making this a bit clearer to this not-a-lawyer.

  • Mary_McConnell

    Thanks for laying it all out.

  • Spackle Motion

    Scott, any ideas on why the IRS does finger-in-ears-singing tech when it comes to the accusations of illegal inurement? The current IRS scandal, which is playing out longer than I thought it would, may serve to hurt or help promote any law enforcement action related to illegal inurement against Scientology.

    I would like to think that the current scandal and replacement of top IRS brass will trigger a review of all IRS policies and procedures, and I like to think that the IRS will start seriously investigating Scientology to prove that they look at everyone.regardless of any political and religious affiliation.

    But then I snap out of that dreamworld and know that it probably won’t happen. The IRS seems to have a very long memory and cower in fear when it comes to Scientology. What are your thoughts?

    • t1kk

      That’s a very good question and one I’ve been wondering about myself (how the current ‘scandal’ changes things, if at all, with respect to how the IRS views Scientology). Conventional logic dictates that the IRS will generally back off political organizations filing for 501(c)(4) status. But Scientology is categorically distinct from those entities, so legally, at least, it’s apples and oranges. But it’s not as if the IRS has been on the fence with regard to Scientology.

      If you look back at the oral argument before the ninth circuit in the Sklars case, you’ll see the IRS vigorously and recently defending the secrecy of the IRS-Scientology agreement, which the Sklars sought to have admitted to evidence in order to make their disparate treatment argument. Gov’t agencies can change course on a dime, but I don’t see how anything has really changed.

      At the end of the day, is there any reason for the IRS to believe that if they rescinded Scientology’s exempt status, Scientology wouldn’t simply pick up where it left off and unleash a thousand lawyers on the IRS? What’s changed between now and then? Not much; if anything the IRS has grown weaker if only because of this supposed scandal. (I say supposed because to my eye this was the IRS doing its job–501(c)(4) entities are ostensibly “social welfare groups” and any indication that a group is political should be a tip off that they’re merely organized to provide anonymous campaign donations; that groups on the Right sought to exploit this more than the Left accounts for the disparity.)

      But so has Scientology grown weaker since 1993. Morally speaking, there might be no more apt time in its history where Scientology is less deserving of exempt status. Scientology under Miscavige has shed even the pretense of a corporate structure with internal checks and balances pinned to a trust or mission statement. Instead it’s merely an elaborate group of shell corporations that enables David Miscavige to profit and exert his violent temper and arbitrary will without fear of reprisal.

      I suppose this reality weakens Scientology’s substantive claim to exempt status, but it has no fewer attorneys at its disposal than in 1993, so I’m not really sure how much has changed if you’re in the IRS’s chair making such a calculus.

      • Spackle Motion

        Thanks for the well-written response. I value your assessment on all things (legal and otherwise) with the cult.

        I did not read the Sklars decision, although I plan to at one point. Do you know if there was any important dicta that shows any sliver of understanding about the strange nature of the IRS’ fierce protection of this document? I wonder what justification they gave to protect it. It seems strange that no one has been able to unveil that agreement officially in all of these years.

        You are correct that the IRS likely believes that hoards of new law suits would commence if they revoked the 503(c) status (and I also agree with you about the 501(c)(4) irregularities that snowballed into the stupid current scandal), but I’m second guessing the number of new plaintiffs the cult would be able to scramble together. It seems odd that the IRS crumbles when they have several hundred lawsuits when they govern over 200 million tax payers. They must be constantly skating on funding thin ice and very much afraid of the cult. But do you think it is possible to get that many Scientologists to act as Plaintiffs when they can barely get 400 people to the Portland event?

        I simply don’t see why they couldn’t take down Miscavige for illegal inurement, or tax evasion. Not likely he pays taxes on his extravagant lifestyle. Trying to take down this insidious cult can happen if you cut off the head of the snake. This would be (I’m guessing) a lot easier than facing hundreds of new lawsuits.

        Love the blog, by the way. It is great to have a direct dialogue with you.

        • t1kk

          Thanks again for the kind words. Re Sklars dicta, realize that there were two mostly identical cases, both which went to different Ninth Circuit panels over the course of a few years. In the first, Judge Barry Silverman wrote:

          “If the IRS does, in fact, give preferential treatment to members of the Church of Scientology—allowing them a special right to claim deductions that are contrary to law and rightly disallowed to everybody else—then the proper course of action is a lawsuit to put a stop to that policy.”

          Silverman doesn’t get into the fact that any person bringing such a suit would be denied on standing grounds; and actually, Keith Henson did bring such a suit, which was in fact denied on standing grounds. The standing argument was discussed by the second Ninth Circuit panel, which ultimately found the same way and declined to explore the matter in any depth. At oral argument, though, the following exchange took place:

          Judge Wardlaw: “The view of the IRS is it can unconstitutionally violate the Constitution by establishing religion, by treating one religion more favorably than other religions in terms of what is allowed as deductions, and there can never be any judicial review of that?”
          IRS (Delsole): “That is not at all what I said.”
          Judges Pregerson & Wardlaw (simultaneously): “That’s the bottom line!”
          Judge Wardlaw: “This does intrude into the Establishment Clause.”

          There’s your dicta. Lots of judges fully recognizing that Scientology is getting a better deal from the IRS than any other religion, but all powerless to do anything about it. What I was hoping in in the Sklars cases was for them to remand after discovery and consideration of the IRS/Scn agreement–the Sklars didn’t deserve the deduction, but at least they might have dragged down Scientology.

        • t1kk

          Also, I don’t think Scientology would have any problem finding a few hundred plaintiffs any more than they’d have a problem finding a few hundred attorneys. The plaintiffs in the Hernandez et al style deduction cases didn’t have to lift a finger, only sign their names to a complaint, so far as I understand.

      • Jgg2012

        I think that the IRS simply found it a waste of time to continue fighting. As to whether it is a religion, it seems to be an alter ego of everything Hubbard believed–political beliefs, social beliefs (hatred of psychs) as well as any metaphysical beliefs he had, so I think it is only partly a religion. Relgions do not, for example, make medical claims, so I think there is unauthorized medicine practiced. A better question is whether it’s non-profit–Miscavige’s wealth and control suggest otherwise.

  • Izzysson

    If Scientology were to allow the marketplace of ideas to function unhindered and unimpeded, it would, in short order, be relegated to a position proximate to the Westboro Baptist Church in the public mind.
    That the Church of Scientology has engaged, and reportedly continues to engage in criminal activities which have eluded the Justice system works to the detriment of us all.